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freedom for Germany and for Austria. That the Trading with the Enemy Act take steps a prior quorum call and a yea-and-nay is why we seek for Europe a unity which will to determine the facts with respect to this vote on any proposal to amend the Conend the petty jealousies and confinements question as speedily as possible. I further stitution. The second would establish which frustrate men and make them feel request that when the facts have been as
the same requirements with regard to a that only through war can they win ade certained, I may be advised with respect to quate opportunity. That is why we seek them.
final vote on any treaty or international peace for Korea and, through peaceful means, Kindest personal regards.
convention or protocol in the nature of the unity of Korea. That is why we seek
a treaty. peace in Indochina on the basis of freedom
PAT MCCARRAN. I send these proposals to the desk for and independence which the French Government now promises the peoples.
There being no objection, the joint appropriate reference, and ask that the As the three Foreign Ministers agreed, the
text of the two resolutoins be printed at resolution was ordered to be printed in conditions which we seek will safeguard the RECORD, as follows:
this point in my remarks. peace for all, including Russia, and if the
Resolved, etc., That whereas certain assets
The PRESIDING OFFICER. Without Soviet rulers really want peace they will co
objection, the resolutions will be reof the Office of Alien Property of the Deoperate with, and not obstruct, what we pro-, partment of Justice, remaining from World
ceived, appropriately referred, and pose for Europe and Asia.
War I, having a book value of $57,284,365.78, printed in the RECORD. It was reassuring to find that the Foreign
and represented by United States Treasury The resolution (S. Res. 144), submitted Ministers of Britain and France, both wise certificates of deposit, the actual value of
by Mr. LEHMAN, was referred to the Commen of large experience, shared our view
which has been, contingent upon collection of the world situation. We can feel confi. of the defaulted obligation of certain bonds
mittee on Rules and Administration, as dent and, with our friends and allies of the German Government, may have been
follows: throughout the world, we should move ahead enhanced in value by reason of a treaty Resolved, That rule XII of the Standing with vigor to create the conditions of a
ratified by the Senate of the United States Rules of the Senate is amended by adding stable peace.
on July 13, 1953, the Office of Alien Property at the end thereof the new subsection, as is hereby authorized and directed to trans follows:
fer the whole of such assets, as represented “4. No vote upon the question of engrossWORLD WAR ASSETS OF THE by such certificates of deposit, to the War
ment and passage of any joint resolution OFFICE OF ALIEN PROPERTY Claims Fund, to be available, or the proceeds
proposing an amendment to the Constituthereof to be available, for payment of the Mr. McCARRAN. Mr. President, on
tion of the United States shall be had unless, lawful obligations of that fund.
immediately prior to such vote, it has been July 14 I introduced Senate Joint Resolu The PRESIDING OFFICER. Is there ascertained, by a rollcall ordered for such tion 102, to provide for the transfer to
further morning business? If not, purpose, that a quorum of the Senate is the War Claims Fund of $57,284,365.78 morning business is closed.
present. The question of engrossment and constituting the remaining World War I
passage of any joint resolution proposing an assets of the Office of Alien Property.
amendment to the Constitution of the United
States shall be determined by a yea-and-nay I do not know, Mr. President, whether EXTENSION OF AUTHORITY TO the treaty approved by the Senate on
vote, and the yeas and nays shall be considMAKE LOANS TO FUR FARMERS
ered to have been ordered upon any such July 13 resulted or will result in any in
The Senate resumed consideration of question.” crease in value of the defaulted German
the bill (S. 1152) to extend for a period bonds deposited with the Treasury to the of 5 years the authority of the Secretary by Mr. LEHMAN, was referred to the Com
The resolution (S. Res. 145), submitted credit of the Office of Alien Property of Agriculture to make loans to fur farm- mittee on Rules and Administration, as However, I think the facts with respecters, which had been reported from the to this matter should be ascertained. Committee on Agriculture and Forestry
follows: Accordingly, I have written the Senator with an amendment.
Resolved, That rule XXXVII of the Stand. from Illinois [Mr. DIRKSEN), chairman
The PRESIDING OFFICER. The
ing Rules of the Senate is amended by adding of the Judiciary Subcommittee To In- amendment of the committee will be
at the end of the last paragraph of section 1
the following: vestigate the Administration of the
stated. Trading With the Enemy Act, suggest
“No vote upon the final question to advise
The LEGISLATIVE CLERK. On page 1, in ing that his staff seek to determine these line 10, after the numerals "1958”, it is
and consent to the ratification shall be had
unless, immediately prior to such vote, it has facts.
proposed to insert: "for the purpose only been ascertained by a rollcall, ordered for For the information of the Senate, I of making necessary supplementary ad
such purposes, that a quorum of the Senate ask unanimous consent that my letter to vances to fur farmers now indebted for is present. The final question to advise and the Senator from Illinois may be printed loans made under the foregoing au
consent to the ratification shall be deterin the RECORD at this point as a part of thority.”
mined by a yea-and-nay vote, and the yeas my remarks; and that the text of my
and nays shall be considered to have been
The PRESIDING OFFICER. The ordered upon any such question.” joint resolution may also be printed in question is on agreeing to the committee the RECORD at this point. amendment.
Mr. LEHMAN. First, Mr. President, I There being no objection, the letter
shall discuss my rules proposal in conwas ordered to be printed in the RECORD,
nection with amendments to the Constias follows:
PROPOSED CHANGES IN SENATE tution. Our power to initiate and to
JULY 16, 1953. RULES RELATIVE TO RATIFICA- recommend amendments to the ConstituHon. EVERETT M. DIRKSEN,
TION OF TREATIES AND AMEND tion springs from article V of the ConChairman, Subcommittee To Investigate
MENTS TO THE CONSTITUTION stitution, which provides that, the Administration of the Trading With the Enemy Act, United States Mr. LEHMAN. Mr. President, two The Congress, whenever two-thirds of both Senate, Washington, D. C. highly important prerogatives of the
Houses shall deem it necessary, shall proMY DEAR SENATOR: On Tuesday, July 14, I United States Senate are, first, to advise pose amendments to this Constitution. introduced a joint resolution, Senate Joint
and consent to the ratification of inter To one who is by no means an expert Resolution 102, to provide for the transfer national treaties; and, second, to act, in in constitutional law, the simple reading of $57,284,365.78 to the War Claims Fund.
consort with the House, to initiate and This resolution raises the question of the
of this language might indicate that any extent, if any, to which the value of the de
recommend amendments to the United proposal to amend the Constitution refaulted German bonds back of the Treasury States Constitution.
quires an affirmative vote of two-thirds certificates of deposit in the amount of $57, Today I shall talk about both of these of the entire membership of both Houses; 284,365.78, aforesaid, may have been in matters and about the grave responsi- in other words, a constitutional twocreased in value by virtue of the Senate's bilities vested in the Senate in regard to action on July 13 in ratifying the treaty re
them. I shall propose two changes in thirds vote. I hasten to state, however, lating to German external debts.
that the courts have consistently interthe rules of the Senate, so as to enable In connection with consideration of Senate Joint Resolution 102, it will be necessary this body better to discharge those re
preted this language in article V to to ascertain the answer to this question with sponsibilities and more firmly to hold
mean, not a constitutional two-thirds
but rather two-thirds of those present regard to possible increased value of these public confidence in our manner of perdefaulted German bonds. forming them.
and voting. I ask unanimous consent to I respectfully request that your Subcom I am introducing two resolutions for insert in the RECORD at this point two mittee To Investigate the Administration of changes in the rules. One would require citations upholding this view.
There being no objection, the memo Mr. President, I am not speaking Mr. HENDRICKSON. Does the Senrandum was ordered to be printed in the pointlessly or in a vacuum. I have in ator from New Jersey correctly underRECORD, as follows:
mind a very recent and to my mind, an stand the Senator from New York as
incredible happening--a case in which saying that the Senate passed a joint CITATIONS OF SUPREME COURT DECISIONS THAT AMENDMENTS TO THE CONSTITUTION RE
an amendment to the United States Con- resolution calling for a constitutional QUIRE A TWO-THIRDS VOTE OF MEMBERS stitution was recommended and approved amendment, on a call of the calendar? PRESENT AND VOTING
by the Senate of the United States with Mr. LEHMAN. I am glad that quesMISSOURI PACIFIC RAILWAY CO. V. STATE OF out a record vote, without a quorum call, tion has been addressed to me. That is KANSAS (248 U. S. 276)
practically without debate, and by unan a fact. That was done, so far as I can In this case, the Court held that the lan- imous consent. This happened on June ascertain, with only a very small numguage "two-thirds of the House,” as applied 18, only a month ago. It happened on a ber of Senators on the floor. to Presidential vetoes, means two-thirds of calendar day, during the reading of the Mr. HENDRICKSON. It was passed those present and voting, and not two-thirds unobjected to measures; and passage on the call of the consent calendar. Is of the entire membership of the House.
was effected—as is required on calendar that correct? NATIONAL PROHIBITION CASES (253 U. S. 350) day-by unanimous consent.
Mr. LEHMAN. That is correct. I can In this case, the Court ruled directly on The Daily Digest of actions taken by give the Senator the exact date, if he the meaning of the words, “two-thirds of Congress, the Digest attached to the will permit me to do so. It happened on both Houses” as applied to approval of con
CONGRESSIONAL RECORD, did not even list June 18, only 1 month ago, during the stitutional amendments and decided, as in in its headline summary this approval call of the calendar for the considerathe Missouri Pacific Railway case, that it
of a constitutional amendment. Not a tion of unobjected-to bills, and the joint meant two-thirds of those present and voting.
single newspaper, so far as I can deter- resolution was passed, as is required on
mine, made a prominent note of this calendar days, by unanimous consent. Mr. LEHMAN. Mr. President, I do action.
Mr. HENDRICKSON. The Senator is not think the Founding Fathers, the
On the weekend of July 12, 3 weeks referring to the McCarran joint resoauthors of the Constitution, had any idea after the approval of this amendment, lution, is he? that an amendment to the Constitution the Washington Post made inquiries of Mr. LEHMAN. The
The Senator from would ever be lightly considered or light, 11 Members of the Senate. Only three New York is referring to a joint resoluly passed, or that a constitutional knew that this amendment had been tion proposing a constitutional amendamendment would be approved by the considered and passed. It was ascer- ment which was introduced by the disCongress without all the grave and sober tained by the Washington Post reporter, tinguished senior Senator from Nevada discussion and consideration which the Mr. Robert Albright, that a maximum of [Mr. MCCARRAN). As I have explained, very idea of amending the Constitution seven Members were on the floor when the intent of it was to write into the Concalls for. this action was taken.
stitution the substance of the Supreme Ours is the oldest written Constitution
The CONGRESSIONAL RECORD of June 18 Court decision in the steel seizure case still in effect in the world today. It has discloses that the discussion of this of last year. lasted 164 years, and during all that pe
measure took 112 columns of the REC Mr. HENDRICKSON. That did inriod it has had but 22 amendments, 10
ORD; that discussion consisted of a volve a constitutional amendment. of which were adopted immediately fol- rather desultory colloquy among the Mr. MCCARRAN. Mr. President, will lowing the ratification of the Consti- Senator from Nevada (Mr. MCCARRAN), the Senator from New York yield? tution itself. In other words, in the last the Senator from Florida [Mr. SMATH Mr. LEHMAN. Mr. President, I shall 150 years, 12 amendments to the Con- ERS], and the Senator from Michigan be glad to yield to the Senator from stitution have been adopted-less than [Mr. FERGUSON).
Nevada. one for every decade of our national ex
I, myself, was not aware that this pro Mr. McCARRAN. Lest the Senator istence.
posal to amend the Constitution was from New Jersey should think there This vital and enduring Constitu- pending before the Senate. I had seen might be something in what the Senator tion has provided the skeleton of our na no reports or comments upon it. I dare from New York was saying, that measure tional body through wars and insur- say that most of my colleagues were in a was on the calendar for weeks and weeks. rections, and through the years of our similar state of oblivion in regard to this It was passed. It was on the calendar growth from a small, sparsely populated matter. Perhaps it is our responsibility in the 82d Congress, and was approved seaboard Nation, to the mighty colossus to be aware of such matters and to by the Judiciary Committee of the and world power that we are today. maintain a constant vigilance. But I do
But I do United States Senate, after long discusShall we tamper with and amend this not believe that matters of such tre- sion and consideration, in both Conmighty document, this basic charter of mendous and historic moment as
gresses. our national existence, on the basis of amendments to the Constitution should, Mr. LEHMAN. Mr. President, I may momentary impulse or prejudice or pas so far as calling them to the attention say to the Senator from Nevada that I sion? Shall we permit amendments to of the Senate is concerned, be left to do not know exactly how long the joint our Constitution to be hastily enacted the chance of individual enterprise and resolution proposing a constitutional by rote and routine? Or should we so vigilance.
amendment was on the calendar. But, arrange our procedures that every The amendment to the Constitution nonetheless, it was passed on the conamendment to the Constitution must to which I have been adverting is pro- sent calendar, without a quorum call, pass the most rigorous test of study, in- posed in Senate Joint Resolution 3, in- without a yea-and-nay vote, and with spection, and consideration by the Mem- troduced by the senior Senator from but a very small number of Members of bers of the Congress?
Nevada [Mr. McCARRAN). Its avowed the Senate on the floor and aware of the As every lawyer knows, every line, purpose is to make it unconstitutional fact. every phrase and every word of the Con- for the President of the United States to The position of the Senator from New stitution becomes a matter for study and seize private property under any circum- York is that regardless of how long a for interpretation by the courts. Every stances, except as prescribed by con measure may be on the calendar, no clause in the Constitution becomes a
gress. The author of the proposed con measure proposing a constitutional stitutional amendment had in mind, and
amendment should be passed, and no possible framework for a whole body of legal construction capable of controlling
so stated, that his intent was to confirm treaty should be ratified-I shall come the entire character of our laws and in the Constitution the substance of the to that a little later-without a quorum
Supreme Court decision in the steel call and a yea-and-nay vote to establish institutions. Seizure case of last year.
whether the necessary consent has actuI say, Mr. President, that amendments to the Constitution should be so will the Senator yield?
Mr. HENDRICKSON. Mr. President, ally been given by the Senate.
Mr. McCARRAN. Mr. President, will safeguarded by our rules that no
The PRESIDING OFFICER (Mr. the Senator yield? amendment will be passed upon by Con- CARLSON in the chair). Does the Sen Mr. LEHMAN. I am very glad to gress without every last. iota of consid- ator from New York yield to the Sena- yield. eration that such a momentous under- tor from New Jersey?
Mr. McCARRAN. Treaties made betaking demands.
Mr. LEHMAN. I yield.
tween this country and foreign countries
constitute the supreme law of the land. the case, I think the Senator from New Constitution constitutes a safeguard of in ratifying certain treaties, only last York was present.
paramount importance, even to democweek, there were less than a handful of If the Senator from New York will racy itself, and there should always be Senators on the floor. Yet they were yield for another question, does he be on the record, established by the yeas acting on agreements intended to become lieve that the result would have been and nays, a two-thirds vote, before pasthe supreme law of the land.
any different had all 96 of the Senators sage by the Senate, the greatest legislaMr. LEHMAN. I am very glad to hear been present?
tive body in the world. the Senator from Nevada say that. It Mr. LEHMAN. I thank the Senator Mr. LEHMAN. I thank my colleague merely confirms my thesis with regard to from Nevada for his very complimentary from Oklahoma for his clear and helptreaties. I shall come to that, as I in remarks with regard to my desire to dis- ful statement. tend to speak on it at some length in a charge my duties conscientiously. It is Mr. McCARRAN. Mr. President, will little while. Within the past 2 years, my impression, indeed, I am quite cer the Senator yield? many treaties have been ratified by the tain-and it is confirmed by members of Mr. LEHMAN. If I may continue for Senate by voice vote, without a quor my staff—that I was not present on the a moment, I shall yield to the Senator call and without the yeas and nays. floor of the Senate at the time. I am not from Nevada. I thank my distinguished
Mr. MCCARRAN. Mr. President, will seeking to cast any reflection whatever colleague from Oklahoma for his clear the Senator yield for but one more ques- upon the author of the proposed con and helpful comments. tion?
stitutional amendment. All I am saying I know from my long contact with the Mr. LEHMAN. I am glad to yield to is that it is wrong to pass joint resolu- legislature of my own State that both the Senator from Nevada.
tions proposing constitutional amend the legislature itself and the people of Mr. MCCARRAN. There can be no ments, or to act upon treaties, which in the State believe that when a constitudisparagement of the treaties or the my opinion constitute the most impor- tional amendment is submitted to the joint resolutions proposing constitu tant measures that can come before the States by the Congress of the United tional amendments, because they have Congress, without having a previous States it has had careful, thorough, and in each instance been the subject of long quorum call and a yea-and-nay vote. intelligent consideration. I think it and continuous study in committee, by That is the simple description of my would come as a great shock to the peomen who have given to the subject their thesis; and I hope in due course the pro- ple of every State if they believed that a best thought; and this body must of posed changes in the rules will prevail. constitutional amendment would be subnecessity rely upon such thought and Mr. MONRONEY. Mr. President, will mitted to their legislatures without havsuch study. the Senator yield?
ing received such consideration, or if a Mr. LEHMAN. I am well aware of the Mr. LEHMAN. I am glad to yield to treaty with a foreign power had been extent of the discussions and the con my colleague from Oklahoma.
ratified by a handful of Senators when sideration given in committee to the Mr. MONRONEY. I wish to compli- the Consent Calendar was called and presently proposed amendment to the ment the distinguished Senator from there was no objection. Constitution. But the mere fact that a New York for bringing this question be Mr. President, I have said the author committee considered a constitutional fore the Senate, affecting, as it does, mat- of this amendment had in mind and amendment certainly does not relieve the ters of the highest degree of importance. stated that his intent was to have in the other Members of the Senate of their Even though the proposed constitutional Constitution the substance of the Suresponsibility. It is my responsibility to amendment were unanimously favored preme Court decision in the steel seizure pass on a treaty, and to pass on a con by all 96 Members of the Senate, it in case of last year. stitutional amendment. It is not the ex volves a proposed change in our basic
Let me refer again to the news article clusive responsibility of a committee, no and fundamental doctrines, and а
in the Washington Post by Mr. Robert matter how. conscientious members of change in the Constitution. It should Albright, which appeared on page 1 of the committee may be. I have already be the subject of discussion and there the editorial section of that paper on said, and I repeat, perhaps Members of should be a yea-and-nay vote. In my July 12. the Senate do not exert proper vigilance opinion it is a poor excuse to say that
I ask unanimous consent that this in noting every measure on the Consent the Senate is too busy to have a quorum
article, in its entirety, be printed in the Calendar. That, however, in my opinion, call and a yea-and-nay vote when the RECORD at this point in my remarks. does not affect the situation in the slight- question is on agreeing to a joint reso
Without objection, the article was est degree. The fact still remains that lution proposing a constitutional amend.
ordered to be printed in the RECORD, as a joint resolution proposing a constitu- ment. A proposed amendment to the
follows: tional amendment was passed on the call Constitution must go before the legislaof the Consent Calendar, with but a tures of 48 States for their consideration, SEVEN SENATORS PASS RESOLUTION TO AMEND
THE CONSTITUTION handful of Senators on the floor. I shall and surely the Senate, in this instance, put proof in the RECORD in a little while the parent body which originates such a
(By Robert C. Albright) of a fact we know, that within recent basic change, should at least fulfill the Can a mere handful of Senators approve a months many treaties have been ratified legal amenities by giving the matter full
constitutional amendment despite the conby voice vote, without a quorum call, and consideration, and the grace of a yea
stitutional requirement for a two-thirds
majority? without any previous notice whatever and-nay vote, so that it can be deter
Believe it or not, the answer is yes. having been given, so that every Mem- mined who is for it and who is against it.
It happened just the other day-on June ber of the Senate might discharge his It would be enlightening, indeed, to the 18, to be exact-although a clear majority responsibility in connection with their legislatures of the 48 States, who must be
of the Senate was then and apparently still consideration.
requested either to ratify or reject it, if is unaware of the action. Mr. McCARRAN. Mr. President, will
Mr. President, will some guidepost were set by the Senate. To establish this fact, the Washington the Senator yield for a further question? I realize, as the distinguished Senator
Post last week questioned 11 Senators at
random. Mr. LEHMAN. I am very glad to yield. from Nevada has said, that there had Mr. McCARRAN. Was the Senator been adequate
Each was asked if he was aware that the been adequate consideration in the
amendment had passed the Senate. Only from New York on the Senate floor when Judiciary Committee; but I do not think
3 of the 11 said they knew about it. Eight the resolution proposing a constitutional the people of the country would feel too
told this reporter they did not even know amendment was passed?
secure if the consideration were limited the amendment had come up. Mr. LEHMAN. I do not think I was; to that accorded by committees of the If this is a fair sampling-and it was inand I am certainly willing to say to the State legislatures, and the proposed con tended as such-it means that the Senate Senator
stitutional amendment were to be then has gone through the important process of Mr. MCCARRAN. The Senator from gaveled through by unanimous consent,
approving the submission of a constitutional
amendment without the knowledge of more New York is a vigilant Senator and he without discussion on the floors of the
than half of its Members. is usually here. I make the guess that respective State legislatures. I certainly
The amendment in question was a relahe was here. It is only a guess so far as think that in the case both of proposed tively uncontroversial one by Senator Pat I am concerned, but I make that guess constitutional amendments and the rati MCCARRAN, Democrat of Nevada, tying down because I notice that the Senator is fication of treaties, the two-thirds re the Supreme Court's June 2, 1952, steel case nearly always on the floor. That being quirement provided by the writers of the decision. It would bar the President from
seizing private property except under au Subsequently, on that day, June 23, I now ask unanimous consent, Mr. thority of Congress.
1952, the majority leader, former Sen President, that my analysis of Senate A check with floor attendants on both
ator McFarland, moved to table the mo Joint Resolution 3, be printed at this sides of the aisle established that no more
tion of the Senator from Nevada. That point in my remarks, and following that than 6 or 7 Senators were on the Senate floor when the amendment was called up. Some motion carried by 42 to 32.
a legal analysis, prepared by outstandplaced the number lower.
Is it possible, then, to consider Senate ing legal authority, summarizing the Three of the Senators present participated Joint Resolution 3 a noncontroversial dangerous legal aspects of this proposal. in a brief debate which consumed less than matter? Of course not. But, in fact, There being no objection, the matters two columns of the CONGRESSIONAL RECORD. no amendment to the Constitution should were ordered to be printed in the RECORD, MCCARRAN described the nature of the
ever be considered a noncontroversial as follows: amendment and said the committee report matter, or ever be taken up on the Conon it was unanimous. The resolution was
MY ANALYSIS OF THE EFFECTS OF SENATE JOINT sent Calendar. passed by a voice vote without so much as
RESOLUTION 3 a quorum call intervening.
This year, Mr. President, the same
Senate Joint Resolution 3 would forbid Article V of the Constitution provides that constitutional amendment was again in the executive power—the President of the an amendment to the Constitution must be troduced, as Senate Joint Resolution 3. United States or any of his agents, subordiapproved by a two-thirds majority of both
Hearings were held by the Judiciary nates, administrators, or Cabinet SecreHouses. What does the Constitution mean Committee one day of hearings in
taries—it would forbid the Secretary of Deby two-thirds? which the testimony consisted exclu
fense and the Commander of our Armies and Two-thirds of the entire Senate is 64 Sen
Air Forces—from taking possession of prisively of statements by the Senator from ators. Two-thirds of a working quorum of the Senate is 33 Senators. Two-thirds of
vate property in the United States without Nevada [Mr. MCCARRAN). The only
specific statutory authority. 6 or 7 Senators is 4 or 5 Senators. But with other item in the hearings is a long pre
The effect of such an amendment could out a challenge on the floor at the time, the pared statement, filed after the hearings, be cataclysmic, should there ever be an insmaller vote' means just as much as the by the National Association of Manu surrection in the United States or a condilarger in the Senate. facturers.
tion of great crisis caused by a great natural The CONGRESSIONAL RECORD for June 18 is
It is on the basis of this sparse record
disaster or by the falling of an atomic bomb silent on 2 rather important points: (1) the that an amendment to the Constitution
on this country. number of Senators present at the time and (2) the number who voted. It states merely
Neither the executive officers of the Govan amendment of far-reaching implica
ernment nor the commanders of our Armed that the resolution was read for the third tions—was adopted, by unanimous con Forces could seize or preempt any property, time and passed.
sent, by a half dozen Senators present whatever the emergency, whatever the critTo make certain that constitutional re on the floor on a day when the calendar ical need, under pain of violating the Conquirements are literally complied with herewas called.
stitution. Can anyone imagine a more after, Senator HERBERT H. LEHMAN, Democrat, of New York, will soon propose a slight
dangerous prescription for paralysis than I have studied this proposed amendment to the Constitution. It is only
that presented by this amendment? In a change in procedure. LEHMAN'S recipe: A quorum call and a record vote on every prothree lines long and states:
time of national danger, at exactly a time
when the Executive authority needs to have posed constitutional amendment.
The executive power of the United States an inherent power to preserve the Nation,
shall not be construed to extend at any time Mr. LEHMAN. Mr. President, the ar
when no other recourse is available and ticle which I have just had printed in
to any taking of private property other than there is no other alternative-exactly at that in a manner prescribed by law.
time the Executive authority would be tied the RECORD is, so far as I know, accurate
hand and foot by this amendment to the as well as interesting, with one notable
It sounds innocent enough, but its
Constitution. exception. Mr. Albright describes the purpose is plainly to strip from the ex
Of course, this does not appear on the McCarran resolution, Senate Joint Reso- ecutive branch of the Federal Govern- . surface. The sponsors of this amendment lution 3, as a "relatively noncontrover- ment powers which the executive branch
speak of tying down, by constitutional fiat, sial one.” Mr. Albright had no way of now has.
the Supreme Court decision in the steel case, ascertaining it, but Senate Joint Reso I have prepared my own analysis of
Of course, if this is the only purpose of the
amendment, it is completely unnecessary. lution 3, far from being noncontrover- this amendment and I also have—and
The Supreme Court has spoken. Its decision sial, is, so far as I am concerned—and shall include as a part of my remarks
in the steel case is the supreme law of the I think a goodly number of my col a legal analysis, complete with citations.
land. But in as far as the proposed conleagues would agree with me a highly I, myself, think this amendment is stitutional amendment encompasses other explosive and debatable issue indeed. totally unwise and dangerous. If it matters, it is dubious and dangerous in the
Let me make clear that nothing I have were to be adopted it would, I believe, extreme. said or am going to say should be taken cripple and paralyze this country in The Judiciary Committee, in its report on to reflect on the author of this reso times of crisis and need. It could have
this proposal, makes clear that other matters lution, or upon his efforts to secure its all the impact of a ton of TNT, timed
are involved. This report, which is- of less
than two pages, says, in part, as follows: passage. I need not say what is obvious, to explode within the structure of gov
"The proposed amendment is not limited that he was at all times within his legal ernment in hours of national danger and
in terms to seizure of any particular type or rights, and there was no departure, so emergency.
kind of property, whether segregated by far as I can determine, from the estab But my whole purpose in going into ownership or by type or by value or ary other lished rules of the Senate. My com detail regarding Senate Joint Resolution way; nor to seizure under any particular plaint is against the rules and procedures 3 is to cite a horrible example of what facts or conditions, actual or hypothetical. which permit to happen that which did can happen under our present rules if
The language of the proposed amendment happen. constitutional amendments can
would affect equally all takings of private be
property; and would have the effect of proMr. President, this same resolution, adopted by rote and routine, without
hibiting any taking of private property exthis same proposal for an amendment to quorum calls and without a yea-and-nay cept under authority granted by the conthe Constitution, was introduced last vote.
gress and in the manner provided for by the year by the senior Senator from Ne The main point to be made is that Congress." vada, It was introduced on May 26, Senate Joint Resolution 3 presents a
Now, Mr. President, what does that lan1952, and was reported from the Judi most explosive and controversial issue,
guage, that statement of congressional inciary Committee on May 28, 2 days later, possibly affecting the fate of our Nation.
tent mean? I do not know. It is as broad
as all outdoors, and as indefinite. It can It came up on calendar call on June And unlike an ordinary piece of legisla
mean a prohibition against the seizing of 2, and was objected to by the then tion, a constitutional amendment, once
property by the executive branch of the majority leader, former Senator McFar- passed, is out of our hands. It cannot Government at a time, and under circumland, of Arizona, on behalf, he said, of be easily repealed. So we must-we stances, when the seizure of that property a number of Senators. It was passed dare not do otherwise—we must provide means the life or death of this country, or over. On June 23, last year, the Sen- that constitutional amendments be con
thy life or death of hundreds of thousands ator from Nevada moved the consid- sidered by the full Senate and acted on
of our people, under circumstances which eration of this proposed amendment to by the formal yea-and-nay vote—as is
we cannot at this time possibly foresee. the Constitution. There was an ex
What if an atom bomb were to fall here, now required, in fact, under the Con
right here in Washington? What if such a tended debate, featured by a most per- stitution, in the case of legislation which
disaster were to take place when Congress suasive speech in opposition by the sen is sought to be passed over a Presiden
was not in session or, if by some other disasior Senator from Oregon [Mr. MORSE). tial veto.
ter, it should prove impossible quickly to
assemble the Congress in special session? Army and Navy planes, although no statu ever asked the Senator from Nevada to Should our Government be paralyzed and tory procedures for the taking of property tell me with whom he consulted. forestalled from any saving action? had been pursued. A like result has been
Mr. MCCARRAN. I should think the Oh, Mr. President, we would live to regret reached in a number of cases involving the it indeed if Senate Joint Resolution 3 were flooding of lands, e. g., United States v. Lynah
Senator would want us to know how to become part of the supreme law of the (188 U. S. 445). Compare Portsmouth Co. v.
eminent were these authorities. land. And, in any event, how dangerous it United States (260 U. S. 327), involving re Mr. LEHMAN. I shall be glad indeed, was to approve this proposition without care peated shooting over land, and Cities Service when this rule is before the committee, ful and even microscopic consideration of Co. v. McGrath (342 U. S. 330), holding that not only to tell with whom I have conevery word, phrase, and possible implication. a right to just compensation could be im
sulted, but also to ask their appearance I now append a legal analysis of Senate plied if a seizure of corporate bonds author
before the committee, and I am quite Joint Resolution 3 in the form of a memo ized by the Trading With the Enemy Act randum. This analysis was prepared by resulted in the imposition on an American
sure they will be glad to appear. But, legal authorities of unchallengeable compe corporation of liability abroad to holders of as a matter of principle, I am not going tence, and presents some of the technical the bonds. In these cases the deprivation of to be compelled or to suffer being asked implications of the proposed constitutional plaintiff's property was not specifically in by any other Member of the Senate to amendment.
tended or foreseen, so that resort to statu state with whom I have consulted in the tory condemnation procedures would have
preparation of proposed legislation or in LEGAL MEMORANDUM RE SENATE JOINT RESObeen impossible or impracticable. Thus in
the preparation of my speeches or in the the circumstances of these cases executive LUTION 3, 83D CONGRESS action which in fact results in a taking of
preparation of proposed amendments This resolution would propose an amendproperty, although condemnation procedures
which I have submitted. I want to make ment to the Constitution to provide that:
were not followed, is treated as a “taking" that very clear indeed. “The executive power of the United States
under the fifth amendment, so as to confer I am deeply shocked, Mr. President, shall not be construed to extend at any
a right to sue the United States for just comtime to any taking of private property other
that any amendment-not to speak of pensation. The proposed constitutional than in a manner prescribed by law.”
one so pregnant with possibilities, so amendment, by declaring that private propThe proposal was evidently addressed pri
loaded with danger, so complex in its erty can be taken only in the manner premarily to the President's seizure of the steel scribed by statute law, would, if adopted,
implications—should be so approved by mills. The Supreme Court has now inappear to cast serious doubt on the right to
the Senate of the United States without validated that seizure. To the extent that recover compensation in such cases.
comprehensive hearings and without the amendment would be declaratory of the It would not seem that either of these careful and deliberate consideration. steel decision, it is unnecessary. To the ex lines of authority was intended to be over
This proposal was not, so far as I can tent that it would go further, it is unde ruled or questioned in the Steel case. The sirable,
ascertain, referred to a single one of the opinion of Mr. Justice Black makes no refThus, the proposed amendment would ap
executive agencies of the Government for erence to these cases and would seem to be parently apply in time of war as well as confined to the situation actually before the
comment, not even to the Department of in peace. The Executive is "barred” at any Court, i. e., the power to seize industrial Justice, which is routinely consulted by time. At least three members of the Supreme property in connection with a labor dispute. the Judiciary Committee in regard to Court majority (Justices Frankfurter, Jack The opinion of Mr. Justice Douglas expressly all proposals pending before that comson, and Burton), however, emphasized that distinguished both United States v. Russell
mittee. Yet here is an amendment to the Steel case did not arise in time of de and United States v. Causby from the case the Constitution affecting every branch clared war or imminently threatened inva before the Court. Justices Frankfurter and sion. Since it would seem clear from the Burton would appear to have confined their
and department of the United States decision that Congress can in any event opinions to the proposition that in the cir
Government, and not one of them was control Presidential action, if it so desires, cumstances of the Steel case the seizure was given an opportunity to make a compreit would seem unwise to attempt by con invalid because it contravened what they re hensive study of this proposal, to report stitutional amendment to limit the power garded as an express decision by Congress in on it and to make recommendations to of the Executive to deal with the sudden the Taft-Hartley Act that there should not the Congress. and unforeseeable emergencies that might be seizures in labor dispute cases. The other
Mr. President, I wish there were a way arise, for example, in the event of a large Justices in the majority made no reference
in which the action we have taken could scale hostile invasion or bombing of the to the cases mentioned above. United States.
Accordingly the proposed constitutional
be undone. I wish there were some way Moreover, the proposed amendment would amendment is undesirable and dangerous. I could move to recall this resolution apply to any taking of property, whether or Quite apart from its effect in the area of from the House of Representatives so not related in any way to a labor dispute. labor disputes, it would seem of vital impor- that the Senate might take a second look In this aspect it would appear to create tance to preserve the nonstatutory powers of at it. However, there is no way of which serious problems in two areas having noth requisitioning or destroying property which
I am aware. ing to do with the Steel case.
can, in case of necessity, be exercised by miliOne of these concerns the powers of mili tary authorities in a theater of war. Ob
I hope and trust that the other House tary officers during war. In United States v. viously, in the face of an advancing enemy
will give this matter the careful study Russell (13 Wall. 623), a case arising during it is impossible to expect the military always we have failed to give it. the Civil War, it was held that military to resort to statutory procedures for con But we can now lock the barn door, officers could, without statutory authority, demning property. In addition, the amend
even though one horse has escaped. seize vessels needed for military transport, ment, if adopted, might result in a denial of
And we should. Therefore, I hope my and that the United States was liable for an effective remedy to injured persons in the just compensation in respect of such seizures. area of the so-called "implied taking" cases.
proposal to change rule XII with regard See also Mitchell v. Harmony (13 How. 115). In those cases also to require resort to stat to the procedure in considering conIn United States v. Pacific Railroad (120 utory procedures would be self-defeating be stitutional amendments will be adopted. U. S. 234), a military commander was held cause the situation is one in which the Exec Now, Mr. President, I turn to the quesempowered, without statutory authority, to utive does not know in advance that there
tion of treaties, an equally important destroy private property in the face of an will be any taking of the property in question.
question and one with which we are advancing enemy, without creating liability for compensation on the part of the United
Mr. MCCARRAN. Mr. President, will much more frequently concerned than States. The application of these principles the Senator from New York yield?
with constitutional amendments. is now before the Supreme Court in Caltex
Mr. LEHMAN. I yield.
I need not discuss at any length the (Philippines), Inc. v. United States (100 F. Mr. MCCARRAN. Will the Senator importance of the role of the Senate in Supp. 970 (Ct. Cls.), certiorari granted, May kindly tell the Senate who prepared the approving international treaties and 6, 1952), a case involving the seizure and legal analysis?
conventions. It is perhaps the greatest destruction of property in the Philippines
Mr. LEHMAN. It was prepared by a in 1941 and 1942. Adoption of the proposed
power this body has, and it is reposed amendment might cast serious doubt on the
number of persons with whom I con solely in the Senate. It is from this legal status of any comparable measures sulted.
power, as well as the power to consent that might have to be taken in the future in Mr. MCCARRAN. The Senator does to Presidential nominations, that the the event of foreign invasion of the United not care to state their names?
Senate derives its unique character and States or its territories.
Mr. LEHMAN. A number of persons its repudiation as a great deliberative The other area is that presented by cases in whom I have great confidence.
body. It is for this authority that the of so-called “implied taking.” An example is United States v. Causby (328 U. S. 256),
Mr. MCCARRAN. The Senator does Senate is renowned throughout the which held that a landowner can recover not care to give their names?
earth. compensation for loss of value of his prop Mr. LEHMAN. I do not think I need It was in the Senate that the League erty resulting from repeated flights over it of to disclose their names. I do not think I of Nations was wrecked, and then the