domestic differences. As to the latter class, it is important to consider whether the particular condition which gave rise to the provision still persists. It is, as Dr. Charles Warren, historian of the Supreme Court and eminent author on the subject, says:

That clause, as I say, is a striking illustration of the class of provisions which was inserted not on any theory of government or general political theory but was inserted solely to take care of a political condition existing, and a very burning question existed in 1787 when the Federal Convention sat. The circumstances surrounding its insertion provide an interesting illustration of the fact that, like most of the provisions of the Constitution, it can only be fully understood after a study of its historical sources and antecedents.

The two-thirds clause was only a step in a long and heated struggle which had been going on for 4 years prior to 1787 and which had been, in fact, endangering the union of the States. This heated struggle was between the Northern and Southern States to preserve what each group regarded as its special interest. The four Southern States were interested in navigation on the Mississippi and the future of New Orleans. The four New England States were interested in protecting their fishery rights. The dispute between the sections. became so dangerous and violent that James Monroe, of Virginia, feared and, in fact, came very near advocating that the country should be divided into three confederacies, a southern, a middle, and a northern confederacy. The dispute between the States, the fear of the smaller States that the larger ones might unduly dominate them, led to the insertion of the two-thirds provision in the Articles of Confederation. The same domestic issue, and the same fear, was the underlying cause of its inclusion in the Constitution. Dr. Warren, in his testimony before the committee, said:

You will search the debates on the Constitution relative to the insertion of the two-thirds clause, and you will search in vain to find any political theory on which that two-thirds clause was founded.

Therefore, the provision was used as a compromise to unite 13 States into a union. The Union has long since been created and firmly cemented. We must now examine the provision, not with reference to the problem of creating the Union, but with reference to the problem of this country, of dealing in foreign affairs in an advanced era, never visualized by the founding fathers.

The founding fathers held no firm philosophy to the effect that treaties with foreign nations should be ratified by two-thirds of the Senate. This is shown by the fact that on September 7, 1787, a motion of James Madison to exclude treaties of peace from the two-thirds provision was adopted without dissent. The following day the exclusion without extended discussion was eliminated.

Other reasons for the two-thirds provision were: First, it was contemplated that the President would actually advise and consult with the Senators (26 in number at the time of the adoption of the Constitution), and that the Senators would be an expert body who would participate with him in formation of treaties.

President Washington attempted to personally advise and consult with the Senate during the First Congress. The subject was a treaty with the Creek Indians History records that he was treated coolly on this occasion. He vowed he would never return, and he never did. Since that time, treaties have been handled by the Senate as other legislation. The "advice" provision of the treaty clause is obsolete.

The Senate has never entered into the active negotiation of treaties as was contemplated by the founders.

Second, it was anticipated that treaties would be made in executive or secret sessions of the Senate and the President. Secrecy no longer plays a part in treaty making. This reason has long ceased to exist. The present Senate has more Members than the House had at the time of the First Congress.

Third, under the Constitution as originally written, Senators being elected by the legislatures of the States, it was anticipated that they would have greatly superior knowledge as compared with the Members of the House on foreign affiairs, and that they would have much longer terms of service than the Members of the House.

Since the adoption of the seventeenth amendment, the first of these reasons has ceased to be valid. Furthermore, history demonstrates that the tenure argument is no longer logical or sustainable.

Hamilton, in the Federalist, expressed the prevailing idea that "the fluctuating and multitudinous composition" of the House would unfit it for a share in treaty making. But even Hamilton failed to foresee that the negotiation of treaties would be taken over by the Executive, leaving to the Senate only the duty of passing judgment on treaties already signed.

Several members of the Constitutional Convention were dissatisfied with the two-thirds provision. James Wilson made this point at the time the Convention was considering the rule:

If two-thirds are necessary to make peace, the minority may perpetuate war, against the sense of the majority.

Attention is here directed to a part of the statement of the Honorable Josephus Daniels, former Secretary of the Navy:

When our Government was organized, it was the first experiment on a large scale in the history of the world that all governments "derive their just powers from the consent of the governed." There were those among the framers of the Constitution who feared to trust the people-some did not hesitate to call them "the mob." These and some without experience and other timid ones incorporated provisions to make popular government difficult. Let us see how we have progressed in changing the Constitution to further democratic ways which have undone the checks and balances designed to hamstring the will of the people. 1. We people were not trusted to elect United States Senators. It was provided they should be chosen by legislators. That anachronism was taken out of the Constitution some years ago by the almost unanimous vote of the people. Nobody advocates going back to that abridgment of the right of the people to select their Senators.

2. The people were denied the right to elect their President and Vice President. Sieves were invented-first by giving electors chosen by the legislators the power to select these executives. It proved as unpopular as it was cumbersome. It did not last. The people found a way to directly choose electors as their messengers to carry out their will expressed at the ballot box. No elector would dare to be untrue to that trust. Even though this system works fairly well there is a growing public sentiment to come nearer giving effect to the vote of electors by apportioning the electors in each State to the Presidential candidates in proportion to the vote cast for them.

3. The right of Congress to tax large incomes was not granted and it took a century, after hard battles and overruling a Supreme Court decision, to levy tax on those most able to pay for the support of the Government. The two big wars in our day could not have been financed if Congress had not possessed the power to "get the money where the money is."

4. The ballot was denied to women and that inherent right came only after long organized effort.

5. The Norris amendment abolishing lame-duck sessions of Congress was adopted. Thomas Jefferson, who held that the dead hand should not control the living spirit, favored a constitutional convention at stated periods, about 20 years apart, so that the fundamental charter should express the desires and will of the people upon whom it operated. We have made over a score of changes in our Constitution and should not hesitate to make changes by which the weal of the citizenry can be promoted. The fathers were not all-wise and wisdom will not die with us.

All the changes and some others have been fully justified. There remains one sore thumb, one excrescence, one outmoded provision in the Constitution that endangers the attainment of peace not only for our people but for all mankind. And that is the power of 33 Senators to outvote the majority of that body and veto the decree of the great majority of the American people. The time has come if we believe in democracy to prove our faith by our works. As long as that undemocratic section embedded in the Constitution remains, no man can truly say that we have a pure government by popular mandate.

THE TWO-THIRDS RULE IMPEDES THE FUNCTION OF GOVERNMENT IN FOREIGN AFFAIRS

When our international relations were few and simple, when the oceans really protected us, the emasculation and rejection of our treaties by a minority of the Upper House of Congress could be tolerated. Today modern science and invention has made the frontiers of all nations almost contiguous. Events in any part of the world directly or indirectly affect the economy and welfare of the United States. In these days, the very life and death of the Nation depends on smooth-working machinery for regulating our international relations. Dr. D. F. Fleming, of Vanderbilt University, made this interesting observation:

Every government in the world doubts the ability of the United States to help organize the coming victory, because all know that the Constitution of the United States contains a fatal defect. They know that, so far as constructive effort to build a better world goes, our Government is deadlocked within itself by a division of the power to make and execute a foreign policy between the President and the Senate. They know that the constructive plans of the Executive are doomed to be perpetually paralyzed by a self-assertive minority in the Senate.

Most Americans have only begun to realize the impact of the Senate's treaty veto upon the other governments and peoples of the world. We have been so accustomed to think of ourselves and our Constitution as the world's chief center of successful, free government that we have not stopped to realize how unreliable we are in the eyes of the world. The other peoples know that we have magnificent impulses but cannot make them effective. In 1918 they saw us stand on a high level of world leadership never before attained by any people. Then they watched us become gripped by fratridical war for 2 whole years, held helpless in the vise of the treaty veto until we had been confused, embittered, and removed from world affairs as a constructive force-to drift for 20 years as a mighty and dangerous derelict on an ocean of world anarchy.

The record of the Senate in handling treaties of peace is long, and it is disturbingly bad. From the moment the United States became a world power as a result of the Spanish-American War, the Senate has frustrated every significant move to make it possible for the country to participate in settling international disputes. It rejected the Olney-Pauncefote Arbitration Treaty of 1897. It emasculated the Hay Arbitration Treaties of 1904. It retained a strangle hold on the innocuous Root Arbitration Treaties of 1908-10. It impeded the effort of President Taft in connection with the Taft Arbitration Treaties of 1911. Then, of course, the history of what happened to the Treaty of Versailles, the League of Nations, and the World

Court following World War I is well known to all. Stuart H. Perry, a prominent newspaperman, had this to say:

The course of the Senate in disposing of the Four Power treaty confirms the conclusion drawn from its treatment of the Versailles Treaty, that the requirement of a two-thirds vote combined with the normal operation of party politics has impaired the treaty-making power of this country to a dangerous degree.

It should also be pointed out that the two-thirds provision prevented the annexation of Hawaii and Texas by treaty. A circumvention of the Constitution called executive agreements had to be resorted to for their annexation.

In the modern world, negotiations must be conducted with foreign countries. The two-thirds provision ties the hands of our negotiators. This, the most powerful and influential nation in the world, cannot exert its great strength for the cause of better international relations and world peace because of this anachronism of our Constitution. Mrs. Harvey W. Wiley, speaking on behalf of the General Federation of Women's Clubs, made this observation:

The founding fathers were intellectual giants and men of great courage to whom we owe the existence of our great country. The principles they stood for have not changed, but the necessary techniques to secure the things in which they believed-peace, security, and human welfare, may have to change. We no longer use the ox cart or the sailing ship. The founding fathers did not live in the days of the submarine, the air plane, or the robot bomb. Treaties must still be considered with great care, as always, but in the new plan for ratification of treaties, while we surrender the check of the extra third of the Senate, we gain the advantage of a majority of the House. In the new plan there will be a meeting of more minds than under the old plan. Instead of the acquiescence of 64 Senators we shall require the consent of at least 267 Members of Congress.

The committee feel that if a treaty made by the Executive has the support of the people, as evidenced by the approval of both Houses of Congress, the desire of the majority to approve it should not be definitively prevented by the will of a few.

John W. Davis, former Member of Congress and learned constitutional lawyer, strongly favors the pending resolution. Mr. Davis

says:

Year by year the relations of the United States with the other nations of the globe become increasingly important to our welfare at home and our security abroad. Year by year, as our wealth and population increase, our influence expands, our interests widen, and our points of contact with the outside world multiply, more and more it will be found necessary to regulate our foreign intercourse by convention and agreement, and greater and greater must grow our need for promptitude in decision, responsibility in action, and continuity in foreign policy.

Miss Anna Lord Strauss, president of the National League of Women Voters, and speaking on behalf of that organization, observed:

The indirect effects of the two-thirds rule are extremely serious. Any administration is prevented from formulating a dynamic foreign policy because it can never go any further than it can persuade two-thirds of the Senate to go. This limits the role of the United States to that of a follower of accepted ideas rather than a leader of new ones. Other governments are reluctant to enter into negotiations with us because they know that even though the people of this country are in favor of the treaty, a small group of men can prevent its passage. Our representatives are also embarrassed in treaty negotiations, because they never know whether the Senate will back them up. The result is apt to be a serious watering down of our foreign policy.

TWO-THIRDS RULE IS UNDEMOCRATIC

The best answer the people of this Nation have been able to devise, in meeting of the governmental problems presented, is to have a decision reached by the majority. Majority rule is the basis of our system of government. If a majority of the Members of the Senate. and of the House of Representatives cannot protect the interest of the people of this Nation, then our Government, and our future is in a disastrous plight.

Some legislative check on Executive action in the field of foreign affairs is highly desirable. A requirement for legislative sanction is fully in accord with the American system of representative democracy, with its use of checks and balances, to restrain unlimited power in any one branch of the Government. The two-thirds ratification system, however, puts the power to check, not in the hands of the legislative representatives of the country as a whole, but in the hands of a small group in the Senate. A definite minority has a negative on the majority. One-third plus one of the membership of the smaller House of Congress has final decision over what has become one of the paramount problems of government. It is possible that 17 Senators, representing a population of only 4,000,000 people, could thwart the will of the majority of the people and of the States.

The requirement of a two-thirds approval puts the power of obstructions in the hands of a small and a determined minority which may play into the hands of the so-called pressure groups. It places an undue impediment on the Executive in requiring him to lessen the effectiveness of a treaty in order to meet the demands of small minorities. Due protection of minority rights, however essential a part of true spirit of democracy, does not entitle a small group of men to control the destiny of a great nation by obstructing the will of a great majority of its citizens through abuse of procedural prerogatives.

Miss Emily Hickman, speaking on behalf of the Young Women's Christian Association of the United States, said:

In the second place, this matter of giving to a minority the privileged position is a matter that our young people are becoming very conscious about today in their study of government. They do not like pressure groups and privileged minorities. It is very difficult to work with them and try to inculcate respect for government with this question constantly before you, when they see this kind of thing going on in connection with vital matters in the United States Government.

Also, it obstructs the harmonious action of the executive and legislative branches of the Government, and that is something which good government is supposed to make possible, and not make impossible.

The argument has been made that since the President has a right to veto legislation and a two-thirds vote is required to pass the bill over his veto, that one-third of the Senate should have the right to nullify a treaty negotiated and recommended by the President. Mr. William Y. Elliott, eminent historian and authority on the Constitution, disposes of this contention as follows:

As you know, sir, a veto by the President of an act passed by Congress indicates, after all, a division of opinion between the Executive and the Congress on a legislative matter on which both, by the Constitution, are entitled to have a view, the President by his veto. The practice, of course, under the party system, is that the President is a leader in the formulation of policy.