freedom for Germany and for Austria. That is why we seek for Europe a unity which will end the petty jealousies and confinements which frustrate men and make them feel that only through war can they win adequate opportunity. That is why we seek peace for Korea and, through peaceful means, the unity of Korea. That is why we seek peace in Indochina on the basis of freedom and independence which the French Government now promises the peoples.

As the three Foreign Ministers agreed, the conditions which we seek will safeguard peace for all, including Russia, and if the Soviet rulers really want peace they will cooperate with, and not obstruct, what we propose for Europe and Asia.

It was reassuring to find that the Foreign Ministers of Britain and France, both wise men of large experience, shared our view of the world situation. We can feel confident and, with our friends and allies throughout the world, we should move ahead with vigor to create the conditions of a stable peace.

WORLD WAR ASSETS OF THE OFFICE OF ALIEN PROPERTY

Mr. MCCARRAN. Mr. President, on July 14 I introduced Senate Joint Resolution 102, to provide for the transfer to the War Claims Fund of $57,284,365.78 constituting the remaining World War I assets of the Office of Alien Property.

I do not know, Mr. President, whether the treaty approved by the Senate on July 13 resulted or will result in any increase in value of the defaulted German bonds deposited with the Treasury to the credit of the Office of Alien Property. However, I think the facts with respect to this matter should be ascertained. Accordingly, I have written the Senator from Illinois [Mr. DIRKSEN], chairman of the Judiciary Subcommittee To Investigate the Administration of the Trading With the Enemy Act, suggesting that his staff seek to determine these facts.

For the information of the Senate, I ask unanimous consent that my letter to the Senator from Illinois may be printed in the RECORD at this point as a part of my remarks; and that the text of my joint resolution may also be printed in the RECORD at this point.

There being no objection, the letter was ordered to be printed in the RECORD, as follows:

JULY 16, 1953.

Hon. EVERETT M. DIRKSEN,
Chairman, Subcommittee To Investigate
the Administration of the Trading
With the Enemy Act, United States
Senate, Washington, D. C.

MY DEAR SENATOR: On Tuesday, July 14, I introduced a joint resolution, Senate Joint Resolution 102, to provide for the transfer of $57,284,365.78 to the War Claims Fund.

This resolution raises the question of the extent, if any, to which the value of the defaulted German bonds back of the Treasury certificates of deposit in the amount of $57,284,365.78, aforesaid, may have been increased in value by virtue of the Senate's action on July 13 in ratifying the treaty relating to German external debts.

In connection with consideration of Senate Joint Resolution 102, it will be necessary to ascertain the answer to this question with regard to possible increased value of these

defaulted German bonds.

I respectfully request that your Subcommittee To Investigate the Administration of

the Trading With the Enemy Act take steps to determine the facts with respect to this question as speedily as possible. I further request that when the facts have been ascertained, I may be advised with respect to them.

Kindest personal regards.

Sincerely,

PAT MCCARRAN.

There being no objection, the joint resolution was ordered to be printed in the RECORD, as follows:

Resolved, etc., That whereas certain assets of the Office of Alien Property of the Department of Justice, remaining from World War I, having a book value of $57,284,365.78, and represented by United States Treasury certificates of deposit, the actual value of which has been, contingent upon collection of the defaulted obligation of certain bonds of the German Government, may have been enhanced in value by reason of a treaty ratified by the Senate of the United States on July 13, 1953, the Office of Alien Property is hereby authorized and directed to transfer the whole of such assets, as represented by such certificates of deposit, to the War Claims Fund, to be available, or the proceeds thereof to be available, for payment of the lawful obligations of that fund.

The PRESIDING OFFICER. Is there further morning business? If not, morning business is closed.

PROPOSED CHANGES CHANGES IN SENATE RULES RELATIVE TO RATIFICATION OF TREATIES AND AMENDMENTS TO THE CONSTITUTION Mr. LEHMAN. Mr. President, two highly important prerogatives of the United States Senate are, first, to advise and consent to the ratification of international treaties; and, second, to act, in consort with the House, to initiate and recommend amendments to the United States Constitution.

Today I shall talk about both of these matters and about the grave responsibilities vested in the Senate in regard to them. I shall propose two changes in the rules of the Senate, so as to enable this body better to discharge those responsibilities and more firmly to hold public confidence in our manner of performing them.

I am introducing two resolutions for changes in the rules. One would require

a prior quorum call and a yea-and-nay vote on any proposal to amend the Constitution. The second would establish the same requirements with regard to a final vote on any treaty or international convention or protocol in the nature of a treaty.

I send these proposals to the desk for appropriate reference, and ask that the text of the two resolutoins be printed at this point in my remarks.

Without

The PRESIDING OFFICER. objection, the resolutions will be received, appropriately referred, and printed in the RECORD.

The resolution (S. Res. 144), submitted by Mr. LEHMAN, was referred to the Committee on Rules and Administration, as follows:

Resolved, That rule XII of the Standing Rules of the Senate is amended by adding at the end thereof the new subsection, as follows:

"4. No vote upon the question of engrossment and passage of any joint resolution proposing an amendment to the Constitution of the United States shall be had unless, immediately prior to such vote, it has been ascertained, by a rollcall ordered for such purpose, that a quorum of the Senate is present. The question of engrossment and passage of any joint resolution proposing an amendment to the Constitution of the United States shall be determined by a yea-and-nay vote, and the yeas and nays shall be considered to have been ordered upon any such question."

by Mr. LEHMAN, was referred to the ComThe resolution (S. Res. 145), submitted mittee on Rules and Administration, as follows:

Resolved, That rule XXXVII of the Standing Rules of the Senate is amended by adding at the end of the last paragraph of section 1 the following:

"No vote upon the final question to advise and consent to the ratification shall be had unless, immediately prior to such vote, it has been ascertained by a rollcall, ordered for such purposes, that a quorum of the Senate is present. The final question to advise and consent to the ratification shall be determined by a yea-and-nay vote, and the yeas and nays shall be considered to have been ordered upon any such question.”

Mr. LEHMAN. First, Mr. President, I shall discuss my rules proposal in connection with amendments to the Constitution. Our power to initiate and to recommend amendments to the Constitution springs from article V of the Constitution, which provides that

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution.

To one who is by no means an expert in constitutional law, the simple reading of this language might indicate that any proposal to amend the Constitution requires an affirmative vote of two-thirds of the entire membership of both Houses; in other words, a constitutional twothirds vote. I hasten to state, however, that the courts have consistently interpreted this language in article V to mean, not a constitutional two-thirds but rather two-thirds of those present and voting. I ask unanimous consent to insert in the RECORD at this point two citations upholding this view.

There being no objection, the memorandum was ordered to be printed in the RECORD, as follows:

CITATIONS OF SUPREME COURT DECISIONS THAT

AMENDMENTS TO THE CONSTITUTION RE-
QUIRE A TWO-THIRDS VOTE OF MEMBERS
PRESENT AND VOTING

MISSOURI PACIFIC RAILWAY CO. V. STATE OF
KANSAS (248 U. S. 276)

In this case, the Court held that the language "two-thirds of the House," as applied to Presidential vetoes, means two-thirds of those present and voting, and not two-thirds of the entire membership of the House. NATIONAL PROHIBITION CASES (253 U. S. 350)

In this case, the Court ruled directly on the meaning of the words, "two-thirds of both Houses" as applied to approval of constitutional amendments and decided, as in the Missouri Pacific Railway case, that it meant two-thirds of those present and voting.

Mr. LEHMAN. Mr. President, I do not think the Founding Fathers, the authors of the Constitution, had any idea that an amendment to the Constitution would ever be lightly considered or lightly passed, or that a constitutional amendment would be approved by the Congress without all the grave and sober discussion and consideration which the very idea of amending the Constitution calls for.

Ours is the oldest written Constitution still in effect in the world today. It has lasted 164 years, and during all that period it has had but 22 amendments, 10 of which were adopted immediately following the ratification of the Constitution itself. In other words, in the last 150 years, 12 amendments to the Constitution have been adopted-less than one for every decade of our national ex⚫istence.

This vital and enduring Constitution has provided the skeleton of our national body through wars and insurrections, and through the years of our growth from a small, sparsely populated seaboard Nation, to the mighty colossus and world power that we are today.

Shall we tamper with and amend this mighty document, this basic charter of our national existence, on the basis of momentary impulse or prejudice or passion? Shall we permit amendments to our Constitution to be hastily enacted by rote and routine? Or should we so arrange our procedures that every amendment to the Constitution must pass the most rigorous test of study, inspection, and consideration by the Members of the Congress?

As every lawyer knows, every line, every phrase and every word of the Constitution becomes a matter for study and for interpretation by the courts. Every clause in the Constitution becomes a

possible framework for a whole body of legal construction capable of controlling

the entire character of our laws and

institutions.

I say, Mr. President, that amendments to the Constitution should be so safeguarded by our rules that no amendment will be passed upon by Congress without every last. iota of consideration that such a momentous undertaking demands.

Mr. President, I am not speaking pointlessly or in a vacuum. I have in mind a very recent and to my mind, an incredible happening-a case in which an amendment to the United States Constitution was recommended and approved by the Senate of the United States without a record vote, without a quorum call, practically without debate, and by unanimous consent. This happened on June 18, only a month ago. It happened on a calendar day, during the reading of the unobjected-to measures; and passage was effected-as is required on calendar day-by unanimous consent.

The Daily Digest of actions taken by Congress, the Digest attached to the CONGRESSIONAL RECORD, did not even list in its headline summary this approval of a constitutional amendment. Not a single newspaper, so far as I can determine, made a prominent note of this action.

On the weekend of July 12, 3 weeks after the approval of this amendment, the Washington Post made inquiries of 11 Members of the Senate. Only three knew that this amendment had been considered and passed. It was ascertained by the Washington Post reporter, Mr. Robert Albright, that a maximum of seven Members were on the floor when this action was taken.

The CONGRESSIONAL RECORD of June 18 discloses that the discussion of this measure took 12 columns of the RECORD; that discussion consisted of a rather desultory colloquy among the Senator from Nevada [Mr. MCCARRAN], the Senator from Florida [Mr. SMATHERS], and the Senator from Michigan

[Mr. FERGUSON].

I, myself, was not aware that this proposal to amend the Constitution was pending before the Senate. I had seen no reports or comments upon it. I dare say that most of my colleagues were in a similar state of oblivion in regard to this matter. Perhaps it is our responsibility to be aware of such matters and to maintain a constant vigilance. But I do not believe that matters of such tremendous and historic moment amendments to the Constitution should, so far as calling them to the attention of the Senate is concerned, be left to the chance of individual enterprise and vigilance.

as

The amendment to the Constitution to which I have been adverting is proposed in Senate Joint Resolution 3, introduced by the senior Senator from Nevada [Mr. MCCARRAN]. Its avowed purpose is to make it unconstitutional for the President of the United States to seize private property under any circumstances, except as prescribed by Congress. The author of the proposed constitutional amendment had in mind, and so stated, that his intent was to confirm in the Constitution the substance of the

Supreme Court decision in the Steel

Seizure case of last year.

will the Senator yield? Mr. HENDRICKSON. Mr. President,

The PRESIDING OFFICER (Mr. CARLSON in the chair). Does the Senator from New York yield to the Senator from New Jersey?

Mr. LEHMAN. I yield.

Mr. HENDRICKSON. Does the Senator from New Jersey correctly understand the Senator from New York as saying that the Senate passed a joint resolution calling for a constitutional amendment, on a call of the calendar? Mr. LEHMAN. I am glad that question has been addressed to me. That is a fact. That was done, so far as I can ascertain, with only a very small number of Senators on the floor.

Mr. HENDRICKSON. It was passed on the call of the consent calendar. Is that correct?

Mr. LEHMAN. That is correct. I can give the Senator the exact date, if he will permit me to do so. It happened on June 18, only 1 month ago, during the call of the calendar for the consideration of unobjected-to bills, and the joint resolution was passed, as is required on calendar days, by unanimous consent.

Mr. HENDRICKSON. The Senator is referring to the McCarran joint resolution, is he?

Mr. LEHMAN. The Senator from New York is referring to a joint resolution proposing a constitutional amendment which was introduced by the distinguished senior Senator from Nevada [Mr. MCCARRAN]. As I have explained, the intent of it was to write into the Constitution the substance of the Supreme Court decision in the steel seizure case of last year.

Mr. HENDRICKSON. That did involve a constitutional amendment.

Mr. MCCARRAN. Mr. President, will the Senator from New York yield?

Mr. LEHMAN. Mr. President, I shall be glad to yield to the Senator from

Nevada.

Mr. MCCARRAN. Lest the Senator from New Jersey should think there might be something in what the Senator from New York was saying, that measure was on the calendar for weeks and weeks. It was passed. It was on the calendar in the 82d Congress, and was approved by the Judiciary Committee of the United States Senate, after long discussion and consideration, in both Congresses.

Mr. LEHMAN. Mr. President, I may say to the Senator from Nevada that I do not know exactly how long the joint resolution proposing a constitutional amendment was on the calendar. But, nonetheless, it was passed on the consent calendar, without a quorum call, without a yea-and-nay vote, and with but a very small number of Members of the Senate on the floor and aware of the fact.

The position of the Senator from New York is that regardless of how long a measure may be on the calendar, no measure proposing a constitutional

amendment should be passed, and no treaty should be ratified-I shall come to that a little later-without a quorum

call and a yea-and-nay vote to establish

Mr. President, will

whether the necessary consent has actually been given by the Senate. Mr. MCCARRAN. the Senator yield? Mr. LEHMAN. I am very glad to yield.

Mr. MCCARRAN. Treaties made between this country and foreign countries

constitute the supreme law of the land. in ratifying certain treaties, only last week, there were less than a handful of Senators on the floor. Yet they were acting on agreements intended to become the supreme law of the land.

Mr. LEHMAN. I am very glad to hear the Senator from Nevada say that. It merely confirms my thesis with regard to treaties. I shall come to that, as I intend to speak on it at some length in a little while. Within the past 2 years, many treaties have been ratified by the Senate by voice vote, without a quorum call and without the yeas and nays.

Mr. MCCARRAN. Mr. President, will the Senator yield for but one more question?

the case, I think the Senator from New York was present.

If the Senator from New York will yield for another question, does he believe that the result would have been any different had all 96 of the Senators been present?

Mr. LEHMAN. I thank the Senator from Nevada for his very complimentary remarks with regard to my desire to discharge my duties conscientiously. It is my impression, indeed, I am quite certain-and it is confirmed by members of my staff-that I was not present on the floor of the Senate at the time. I am not seeking to cast any reflection whatever upon the author of the proposed constitutional amendment. All I am saying

Mr. MCCARRAN. There can be no disparagement of the treaties or the joint resolutions proposing constitutional amendments, because they have in each instance been the subject of long and continuous study in committee, by men who have given to the subject their best thought; and this body must of necessity rely upon such thought and such study.

Mr. LEHMAN. I am well aware of the extent of the discussions and the consideration given in committee to the presently proposed amendment to the Constitution. But the mere fact that a committee considered a constitutional amendment certainly does not relieve the other Members of the Senate of their responsibility. It is my responsibility to pass on a treaty, and to pass on a constitutional amendment. It is not the exclusive responsibility of a committee, no matter how conscientious members of the committee may be. I have already said, and I repeat, perhaps Members of the Senate do not exert proper vigilance in noting every measure on the Consent Calendar. That, however, in my opinion, does not affect the situation in the slightest degree. The fact still remains that a joint resolution proposing a constitutional amendment was passed on the call of the Consent Calendar, with but a handful of Senators on the floor. I shall put proof in the RECORD in a little while of a fact we know, that within recent months many treaties have been ratified by voice vote, without a quorum call, and without any previous notice whatever having been given, so that every Member of the Senate might discharge his responsibility in connection with their consideration.

Mr. MCCARRAN. Mr. President, will the Senator yield for a further question? Mr. LEHMAN. I am very glad to yield. Mr. MCCARRAN. Was the Senator from New York on the Senate floor when the resolution proposing a constitutional amendment was passed?

Mr. LEHMAN. I do not think I was; and I am certainly willing to say to the Senator

Mr. MCCARRAN. The Senator from New York is a vigilant Senator and he is usually here. I make the guess that he was here. It is only a guess so far as I am concerned, but I make that guess because I notice that the Senator is nearly always on the floor. That being

tions proposing constitutional amendments, or to act upon treaties, which in my opinion constitute the most important measures that can come before the Congress, without having a previous a previous quorum call and a yea-and-nay vote. That is the simple description of my thesis; and I hope in due course the proposed changes in the rules will prevail. Mr. MONRONEY. Mr. President, will the Senator yield?

Constitution constitutes a safeguard of paramount importance, even to democracy itself, and there should always be on the record, established by the yeas and nays, a two-thirds vote, before passage by the Senate, the greatest legislative body in the world.

Mr. LEHMAN. I thank my colleague from Oklahoma for his clear and helpful statement.

Mr. MCCARRAN. Mr. President, will the Senator yield?

Mr. LEHMAN. If I may continue for a moment, I shall yield to the Senator from Nevada. I thank my distinguished colleague from Oklahoma for his clear and helpful comments.

I know from my long contact with the legislature of my own State that both the legislature itself and the people of the State believe that when a constitutional amendment is submitted to the States by the Congress of the United States it has had careful, thorough, and intelligent consideration. I think it would come as a great shock to the people of every State if they believed that a constitutional amendment would be submitted to their legislatures without having received such consideration, or if a Mr. LEHMAN. I am glad to yield to treaty with a foreign power had been my colleague from Oklahoma.

Mr. MONRONEY. I wish to compliment the distinguished Senator from New York for bringing this question before the Senate, affecting, as it does, matters of the highest degree of importance. Even though the proposed constitutional amendment were unanimously favored by all 96 Members of the Senate, it involves a proposed change in our basic and fundamental doctrines, and a change in the Constitution. It should be the subject of discussion and there should be a yea-and-nay vote. In my opinion it is a poor excuse to say that the Senate is too busy to have a quorum call and a yea-and-nay vote when the question is on agreeing to a joint resolution proposing a constitutional amendment. A proposed amendment to the Constitution must go before the legislatures of 48 States for their consideration, and surely the Senate, in this instance, the parent body which originates such a basic change, should at least fulfill the legal amenities by giving the matter full consideration, and the grace of a yeaand-nay vote, so that it can be determined who is for it and who is against it. It would be enlightening, indeed, to the legislatures of the 48 States, who must be requested either to ratify or reject it, if some guidepost were set by the Senate.

I realize, as the distinguished Senator from Nevada has said, that there had been been adequate consideration in the Judiciary Committee; but I do not think the people of the country would feel too secure if the consideration were limited to that accorded by committees of the State legislatures, and the proposed constitutional amendment were to be then gaveled through by unanimous consent, gaveled through by unanimous consent, without discussion on the floors of the respective State legislatures. I certainly think that in the case both of proposed constitutional amendments and the ratification of treaties, the two-thirds requirement provided by the writers of the

ratified by a handful of Senators when the Consent Calendar was called and there was no objection.

Mr. President, I have said the author of this amendment had in mind and stated that his intent was to have in the Constitution the substance of the Supreme Court decision in the steel seizure case of last year.

Let me refer again to the news article in the Washington Post by Mr. Robert Albright, which appeared on page 1 of the editorial section of that paper on July 12.

I ask unanimous consent that this article, in its entirety, be printed in the RECORD at this point in my remarks.

Without objection, the article was ordered to be printed in the RECORD, as follows:

SEVEN SENATORS PASS RESOLUTION TO AMEND

THE CONSTITUTION

(By Robert C. Albright)

Can a mere handful of Senators approve a constitutional amendment despite the constitutional requirement for a two-thirds majority?

Believe it or not, the answer is yes.

It happened just the other day-on June 18, to be exact-although a clear majority of the Senate was then and apparently still is unaware of the action.

To establish this fact, the Washington Post last week questioned 11 Senators at random.

Each was asked if he was aware that the amendment had passed the Senate. Only 3 of the 11 said they knew about it. Eight told this reporter they did not even know the amendment had come up.

If this is a fair sampling-and it was intended as such-it means that the Senate has gone through the important process of approving the submission of a constitutional amendment without the knowledge of more than half of its Members.

The amendment in question was a relatively uncontroversial one by Senator PAT MCCARRAN, Democrat of Nevada, tying down the Supreme Court's June 2, 1952, steel case decision. It would bar the President from

seizing private property except under authority of Congress.

A check with floor attendants on both sides of the aisle established that no more than 6 or 7 Senators were on the Senate floor when the amendment was called up. Some placed the number lower.

Three of the Senators present participated in a brief debate which consumed less than two columns of the CONGRESSIONAL RECORD. MCCARRAN described the nature of the

amendment and said the committee report

on it was unanimous. The resolution was passed by a voice vote without so much as a quorum call intervening.

Article V of the Constitution provides that an amendment to the Constitution must be approved by a two-thirds majority of both Houses. What does the Constitution mean by two-thirds?

Two-thirds of the entire Senate is 64 Senators. Two-thirds of a working quorum of the Senate is 33 Senators. Two-thirds of 6 or 7 Senators is 4 or 5 Senators. But without a challenge on the floor at the time, the smaller vote means just as much as the larger in the Senate.

The CONGRESSIONAL RECORD for June 18 is silent on 2 rather important points: (1) the number of Senators present at the time and (2) the number who voted. It states merely that the resolution was read for the third time and passed.

To make certain that constitutional requirements are literally complied with hereafter, Senator HERBERT H. LEHMAN, Democrat, of New York, will soon propose a slight change in procedure. LEHMAN's recipe: A quorum call and a record vote on every proposed constitutional amendment.

Mr. LEHMAN. Mr. President, the article which I have just had printed in the RECORD is, so far as I know, accurate as well as interesting, with one notable exception. Mr. Albright describes the McCarran resolution, Senate Joint Resolution 3, as a "relatively noncontroversial one." Mr. Albright had no way of ascertaining it, but Senate Joint Resolution 3, far from being noncontroversial, is, so far as I am concerned-and I think a goodly number of my colleagues would agree with me-a highly explosive and debatable issue indeed.

Let me make clear that nothing I have said or am going to say should be taken to reflect on the author of this resolution, or upon his efforts to secure its passage. I need not say what is obvious, that he was at all times within his legal rights, and there was no departure, so far as I can determine, from the established rules of the Senate. My complaint is against the rules and procedures which permit to happen that which did happen.

Mr. President, this same resolution, this same proposal for an amendment to the Constitution, was introduced last year by the senior Senator from Nevada. It was introduced on May 26, 1952, and was reported from the Judiciary Committee on May 28, 2 days later.

It came up on calendar call on June 2, and was objected to by the then majority leader, former Senator McFarland, of Arizona, on behalf, he said, of a number of Senators. It was passed over. On June 23, last year, the Senator from Nevada moved the consideration of this proposed amendment to the Constitution. There was an extended debate, featured by a most persuasive speech in opposition by the senior Senator from Oregon [Mr. MORSE].

This year, Mr. President, the same constitutional amendment was again introduced, as Senate Joint Resolution 3. Hearings were held by the Judiciary Committee-one day of hearings-in which the testimony consisted exclusively of statements by the Senator from Nevada [Mr. MCCARRAN]. The only other item in the hearings is a long prepared statement, filed after the hearings, by the National Association of Manufacturers.

It is on the basis of this sparse record that an amendment to the Constitution— an amendment of far-reaching implications-was adopted, by unanimous consent, by a half dozen Senators present on the floor on a day when the calendar was called.

I have studied this proposed amendment to the Constitution. It is only three lines long and states:

The executive power of the United States shall not be construed to extend at any time to any taking of private property other than in a manner prescribed by law.

It sounds innocent enough, but its purpose is plainly to strip from the executive branch of the Federal Government powers which the executive branch now has.

I have prepared my own analysis of this amendment and I also have-and shall include as a part of my remarks a legal analysis, complete with citations.

I, myself, think this amendment is totally unwise and dangerous. If it were to be adopted it would, I believe, cripple and paralyze this country in times of crisis and need. It could have all the impact of a ton of TNT, timed to explode within the structure of government in hours of national danger and emergency.

But my whole purpose in going into detail regarding Senate Joint Resolution 3 is to cite a horrible example of what can happen under our present rules if constitutional amendments can be adopted by rote and routine, without quorum calls and without a yea-and-nay vote.

The main point to be made is that Senate Joint Resolution 3 presents a most explosive and controversial issue, possibly affecting the fate of our Nation. And unlike an ordinary piece of legislation, a constitutional amendment, once passed, is out of our hands. It cannot be easily repealed. So we must-we dare not do otherwise we must provide that constitutional amendments be considered by the full Senate and acted on by the formal yea-and-nay vote-as is now required, in fact, under the Constitution, in the case of legislation which is sought to be passed over a Presidential veto.

I now ask unanimous consent, Mr. President, that my analysis of Senate Joint Resolution 3, be printed at this point in my remarks, and following that a legal analysis, prepared by outstanding legal authority, summarizing the dangerous legal aspects of this proposal.

There being no objection, the matters were ordered to be printed in the RECORD, as follows:

MY ANALYSIS OF THE EFFECTS OF SENATE JOINT RESOLUTION 3

Senate Joint Resolution 3 would forbid the executive power-the President of the United States or any of his agents, subordinates, administrators, or Cabinet Secre

taries-it would forbid the Secretary of De

fense and the Commander of our Armies and Air Forces-from taking possession of private property in the United States without specific statutory authority.

The effect of such an amendment could be cataclysmic, should there ever be an insurrection in the United States or a condition of great crisis caused by a great natural disaster or by the falling of an atomic bomb on this country.

Neither the executive officers of the Government nor the commanders of our Armed Forces could seize or preempt any property, whatever the emergency, whatever the critical need, under pain of violating the Constitution. Can anyone imagine a more dangerous prescription for paralysis than that presented by this amendment? In a time of national danger, at exactly a time when the Executive authority needs to have an inherent power to preserve the Nation, when no other recourse is available and there is no other alternative-exactly at that time the Executive authority would be tied hand and foot by this amendment to the Constitution.

Of course, this does not appear on the surface. The sponsors of this amendment speak of tying down, by constitutional fiat, the Supreme Court decision in the steel case. Of course, if this is the only purpose of the amendment, it is completely unnecessary. The Supreme Court has spoken. Its decision in the steel case is the supreme law of the land. But in as far as the proposed constitutional amendment encompasses other matters, it is dubious and dangerous in the extreme.

The Judiciary Committee, in its report on this proposal, makes clear that other matters are involved. This report, which is of less than two pages, says, in part, as follows:

"The proposed amendment is not limited in terms to seizure of any particular type or kind of property, whether segregated by ownership or by type or by value or any other way; nor to seizure under any particular facts or conditions, actual or hypothetical. The language of the proposed amendment would affect equally all takings of private property; and would have the effect of prohibiting any taking of private property except under authority granted by the Congress and in the manner provided for by the Congress."

Now, Mr. President, what does that language, that statement of congressional intent mean? I do not know. It is as broad as all outdoors, and as indefinite. It can mean a prohibition against the seizing of property by the executive branch of the Government at a time, and under circumstances, when the seizure of that property means the life or death of this country, or the life or death of hundreds of thousands of our people, under circumstances which we cannot at this time possibly foresee.

What if an atom bomb were to fall here, right here in Washington? What if such a disaster were to take place when Congress was not in session or, if by some other disaster, it should prove impossible quickly to

assemble the Congress in special session? Should our Government be paralyzed and forestalled from any saving action?

Oh, Mr. President, we would live to regret it indeed if Senate Joint Resolution 3 were to become part of the supreme law of the land. And, in any event, how dangerous it was to approve this proposition without careful and even microscopic consideration of every word, phrase, and possible implication.

I now append a legal analysis of Senate Joint Resolution 3 in the form of a memorandum. This analysis was prepared by legal authorities of unchallengeable competence, and presents some of the technical implications of the proposed constitutional amendment.

LEGAL MEMORANDUM RE SENATE JOINT RESOLUTION 3, 83D CONGRESS

This resolution would propose an amendment to the Constitution to provide that: "The executive power of the United States shall not be construed to extend at any time to any taking of private property other than in a manner prescribed by law."

The proposal was evidently addressed primarily to the President's seizure of the steel mills. The Supreme Court has now invalidated that seizure. To the extent that the amendment would be declaratory of the steel decision, it is unnecessary. To the extent that it would go further, it is undesirable.

Thus, the proposed amendment would apparently apply in time of war as well as in peace. The Executive is "barred" at any time. At least three members of the Supreme Court majority (Justices Frankfurter, Jackson, and Burton), however, emphasized that the Steel case did not arise in time of declared war or imminently threatened invasion. Since it would seem clear from the decision that Congress can in any event control Presidential action, if it so desires, it would seem unwise to attempt by constitutional amendment to limit the power of the Executive to deal with the sudden and unforeseeable emergencies that might arise, for example, in the event of a largescale hostile invasion or bombing of the United States.

Moreover, the proposed amendment would apply to any taking of property, whether or not related in any way to a labor dispute. In this aspect it would appear to create serious problems in two areas having nothing to do with the Steel case.

One of these concerns the powers of military officers during war. In United States v. Russell (13 Wall. 623), a case arising during the Civil War, it was held that military officers could, without statutory authority, seize vessels needed for military transport, and that the United States was liable for just compensation in respect of such seizures. See also Mitchell v. Harmony (13 How. 115). In United States v. Pacific Railroad (120 U. S. 234), a military commander was held empowered, without statutory authority, to destroy private property in the face of an advancing enemy, without creating liability for compensation on the part of the United States. The application of these principles is now before the Supreme Court in Caltex (Philippines), Inc. v. United States (100 F. Supp. 970 (Ct. Cls.), certiorari granted, May 6, 1952), a case involving the seizure and destruction of property in the Philippines in 1941 and 1942. Adoption of the proposed amendment might cast serious doubt on the legal status of any comparable measures that might have to be taken in the future in the event of foreign invasion of the United States or its territories.

The other area is that presented by cases of so-called "implied taking." An example is United States v. Causby (328 U. S. 256), which held that a landowner can recover compensation for loss of value of his property resulting from repeated flights over it of

Army and Navy planes, although no statutory procedures for the taking of property had been pursued. A like result has been reached in a number of cases involving the flooding of lands, e. g., United States v. Lynah (188 U. S. 445). Compare Portsmouth Co. v. United States (260 U. S. 327), involving repeated shooting over land, and Cities Service Co. v. McGrath (342 U. S. 330), holding that a right to just compensation could be implied if a seizure of corporate bonds authorized by the Trading With the Enemy Act resulted in the imposition on an American corporation of liability abroad to holders of the bonds. In these cases the deprivation of plaintiff's property was not specifically intended or foreseen, so that resort to statu

tory condemnation procedures would have been impossible or impracticable. Thus in the circumstances of these cases executive

action which in fact results in a taking of property, although condemnation procedures were not followed, is treated as a "taking" under the fifth amendment, so as to confer a right to sue the United States for just compensation. The proposed constitutional amendment, by declaring that private property can be taken only in the manner prescribed by statute law, would, if adopted, appear to cast serious doubt on the right to recover compensation in such cases.

It would not seem that either of these lines of authority was intended to be overruled or questioned in the Steel case. The opinion of Mr. Justice Black makes no reference to these cases and would seem to be confined to the situation actually before the Court, i. e., the power to seize industrial property in connection with a labor dispute. The opinion of Mr. Justice Douglas expressly distinguished both United States v. Russell and United States v. Causby from the case before the Court. Justices Frankfurter and Burton would appear to have confined their opinions to the proposition that in the circumstances of the Steel case the seizure was invalid because it contravened what they regarded as an express decision by Congress in the Taft-Hartley Act that there should not be seizures in labor dispute cases. The other Justices in the majority made no reference to the cases mentioned above.

Accordingly the proposed constitutional amendment is undesirable and dangerous. Quite apart from its effect in the area of labor disputes, it would seem of vital importance to preserve the nonstatutory powers of requisitioning or destroying property which can, in case of necessity, be exercised by military authorities in a theater of war. Obviously, in the face of an advancing enemy it is impossible to expect the military always to resort to statutory procedures for condemning property. In addition, the amendment, if adopted, might result in a denial of an effective remedy to injured persons in the area of the so-called “implied taking" cases. In those cases also to require resort to statutory procedures would be self-defeating because the situation is one in which the Executive does not know in advance that there will be any taking of the property in question. Mr. MCCARRAN. Mr. President, will Mr. President, will the Senator from New York yield? Mr. LEHMAN. I yield.

Mr. MCCARRAN. Will the Senator kindly tell the Senate who prepared the legal analysis?

ever asked the Senator from Nevada to tell me with whom he consulted.

Mr. MCCARRAN. I should think the Senator would want us to know how eminent were these authorities.

Mr. LEHMAN. I shall be glad indeed, when this rule is before the committee, not only to tell with whom I have consulted, but also to ask their appearance before the committee, and I am quite sure they will be glad to appear. But, as a matter of principle, I am not going to be compelled or to suffer being asked by any other Member of the Senate to state with whom I have consulted in the preparation of proposed legislation or in the preparation of my speeches or in the preparation of proposed amendments which I have submitted. I want to make that very clear indeed.

I am deeply shocked, Mr. President, that any amendment-not to speak of one so pregnant with possibilities, so loaded with danger, so complex in its implications-should be so approved by the Senate of the United States without comprehensive hearings and without careful and deliberate consideration.

This proposal was not, so far as I can ascertain, referred to a single one of the executive agencies of the Government for comment, not even to the Department of Justice, which is routinely consulted by the Judiciary Committee in regard to all proposals pending before that committee. Yet here is an amendment to the Constitution affecting every branch and department of the United States Government, and not one of them was given an opportunity to make a comprehensive study of this proposal, to report on it and to make recommendations to the Congress.

Mr. President, I wish there were a way in which the action we have taken could be undone. I wish there were some way I could move to recall this resolution from the House of Representatives so that the Senate might take a second look at it. However, there is no way of which

I am aware.

I hope and trust that the other House Iwill give this matter the careful study we have failed to give it.

But we can now lock the barn door, even though one horse has escaped. And we should. Therefore, I hope my proposal to change rule XII with regard to the procedure in considering constitutional amendments will be adopted.

Now, Mr. President, I turn to the question of treaties, an equally important question and one with which we are much more frequently concerned than with constitutional amendments.

Mr. LEHMAN. It was prepared by a number of persons with whom I consulted.

Mr. LEHMAN. A number of persons in whom I have great confidence. Mr. MCCARRAN. The Senator does not care to give their names?

Mr. LEHMAN. I do not think I need to disclose their names. I do not think I

Senate derives its unique character and its repudiation as a great deliberative body. It is for this authority that the Senate is renowned throughout the earth.

It was in the Senate that the League of Nations was wrecked, and then the