On September 25, Secretary of State John Kerry signed the United Nations Arms Trade Treaty [ATT] at the UN headquarters in New York. As my longtime Senate staff colleague Mike Hammond explains, the treaty “was scheduled for approval in the U.N. last year, in July, but was suddenly pulled off the table because Barack Obama thought (correctly) that it would destroy his reelection prospects. Interestingly, in considering Obama’s honesty and motives, the treaty was resurrected within a day or so after the November election.”
Admittedly, the Obama Administration managed to hide quite a lot of dirty laundry until after the election – the scandals of Benghazi, the IRS, and Eric Holder’s Justice Department come to mind.
Moreover, Kerry’s action flies in the face of strong opposition to the treaty in the Senate, where it has no chance of receiving the advice and consent of 67 members.
Nonetheless, as Hammond points out, Obama has a “record of expansively interpreting statutes – and even ignoring them – [so] we have to assume that the ATT would be implemented in the broadest possible manner. And, because under cases interpreting Article I and the Supremacy Clause, a treaty has the force of law, no further congressional action would be necessary for the ATT gun bans and registration to be put into effect.”
Hammond has it right: Obama can use the treaty as a pretext to disarm Americans, even though the U.S. has not constitutionally ratified it. Appalling as it is, this threatening scenario is nothing new: it has its roots in a battle that transpired sixty years ago, with repercussions that persist to this day.
In April 1953, Senator John Bricker of Ohio introduced the Bricker Amendment to the Constitution. In the wake of the secret “Executive Compacts” that FDR and Truman had made with Stalin during World War II.
“Bricker” aimed to restore the Constitutional requirement that such agreements be publicly debated as treaties, and be consented to by two-thirds of the Senate before they came into force. Once the treaty passed that test, Bricker required that it be harmonious in every respect with the Constitution. Moreover, without congressional legislation implementing it, the treaty would have no domestic impact.
Had it been adopted, Bricker would have outlawed future “Executive Compacts” like the historic Kennedy-Khrushchev Accords of 1962, which were so secret that even the Reagan State Department fought bitterly to keep their contents secret twenty years later.
The Bricker Amendment aimed to restore the constitutional balance between the executive and the legislative branches, reasserting the Article I powers of Congress. If treaties had the force of law, then they should be adopted legally.
FDR had only contempt for the Separation of Powers, threatening to pack the Supreme Court before the war, and then, at Yalta, ignoring the Senate as the war drew to an end. Like Obama, FDR had a “record of expansively interpreting statutes – and even ignoring them.” (Alas, this temptation is bipartisan: the Bush-Cheney assertion of a “unitary executive” suffered from the same disregard for the Constitution).
FDR knew full well that the American people and the Congress would have been outraged, had they known that he had joined with Stalin, and Churchill to betray half of Europe. The Yalta Accords condemned 100 million Christians to Soviet domination (for 45 years, as it turned out), while laying the groundwork for the creation of the United Nations.
As M. Stanton Evans has ably demonstrated, Roosevelt’s point man in formulating both the Yalta accords and the founding of the U.N. was Alger Hiss, a Communist spy.
No wander FDR demanded secrecy.
Principles, Presidents, and Power
In 1953, John Foster Dulles served as Eisenhower’s Secretary of State. He had long recognized the dangers of treaty law, especially the possibility that a treaty might permit a power-hungry president to seize power from the Congress, the states, and ultimately the people, violating both Article I and the Tenth Amendment.
But the Founders wisely recognized that the branches of government would naturally be jealous of one another’s powers, and Dulles worked for the president now. So his fairly lame response to Bricker’s warning of usurpation of power was that Eisenhower would never do such a thing.
In April 1953, my father, former Dean of Notre Dame Law School and a leader in the Bricker Brigades, squared off before the Senate Judiciary Committee. Present at the hearing was the Secretary’s son, Avery Dulles, who would later convert to Catholicism and be named a Cardinal of the Church by Pope John Paul II. When we met some years ago, he told me that the hearing had been fiery indeed.
Secretary Dulles became irate at the hearing because Dad pointed to Dulles’s own endorsement of Bricker, delivered a year earlier, when Ike was still running neck and neck with Bob Taft for the GOP nomination. During the campaign, the Bricker Amendment was a key factor in Taft’s popularity, so Dulles had to go along. “The treaty-making power is an extraordinary power, liable to abuse,” Dulles had railed in April 1952, emphasizing that treaties “can cut across the rights given to the people by their Constitutional Bill of Rights.”
Not so a year later.
Although the 1952 Republican Convention strongly endorsed the Bricker Amendment, Eisenhower began backing away from it as soon as he took office in 1953. During that year, the American Legion launched a national campaign supporting Bricker, and in the course of a year my father spoke to packed Legion audiences in every state in the union. Ike tried to mollify him, appointing him to head a presidential commission, but it didn’t slow Dad down.
Finally, just before the amendment came up for a vote in the Senate in February 1954, Ike called my father into the Oval Office.
At first, the president was gregarious. But then came the moment of truth. “Dean,” he said (everybody called my father “Dean Manion”) – “Dean, why do you support this?”
Dad said simply that we should follow the Constitution — the president should negotiating treaties with the advice and consent of the Senate. He specifically mentioned FDR’s betrayal at Yalta.
“But Dean,” said the president — “I’m president now.”
Dad, somewhat embarrassed, to be sure – briefly stated the obvious – that the Constitution was written to protect the people from future presidents who – unlike Eisenhower – might their oath of office and succumb to the prejudices of power.
The silence was undoubtedly uncomfortable. Finally, Ike said, “look, Dean, if you’ll stop supporting this amendment — if you’ll just be neutral – I’ll put you on the Supreme Court.”
Well, Dad had always told his law students, “If you take the first bribe, you may as well take the rest.”
So Dad said “no,” and Ike fired him. The Bricker Amendment was narrowly defeated in the Senate, and, two years later, Ike appointed another Irish Catholic Democrat, William J. Brennan, Jr., to the Supreme Court.
Well there were indeed presidents in the future who demonstrated a reckless penchant for “expansively interpreting statutes –even ignoring them.” Recent presidents have ignored not only statutes, but Congress, and, all too often, the Constitution itself.
Today many patriots blame the Congress for its failure to curb Obama’s concerted efforts to put a stake through the heart of liberty. But while contemplating the question, on whom should the blame fall, Americans might reflect on the words of William Penn, one of my father’s favorite founders:
“Those who do not govern themselves by the laws of God will be ruled by tyrants.”