Strom Thurmond filibuster on the Civil Rights Act of 1957

Front matter

Mr. JOHNSON of Texas. Mr. President, earlier this morning we had scheduled speakers for the day, and attempted to estimate the number of speakers. In connection with the next speaker, we had estimated that we would reach him about 9 o’clock. We are running a little ahead of schedule. Therefore, there are no speakers available at this time. We do not desire to have a vote on the bill until every Senator has had an opportunity to express himself, and we do not wish to take advantage of any Senator, or inconvenience any Senator more than is necessary.

Therefore I ask unanimous consent that the Senate stand in recess until 8:45 p. m. At 8:45 p. m. we will reconvene and I shall suggest the absence of a quorum. I assume that by 9 o’clock the speaker will be ready to proceed.

The PRESIDING OFFICER. Is there objection to the request of the Senator from Texas?

II

At the time of Mrs. Covert’s alleged offense, an executive agreement was in effect between the United States and Great Britain which permitted United States military courts to exercise exclusive jurisdiction over offenses committed in Great Britain by American servicemen or their dependents. For its part, the United States agreed that these military courts would be willing and able to try and to punish all offenses against the laws of Great Britain by such persons. In all material respects, the same situation existed in Japan when Mrs. Smith killed her husband. Even though a court-martial does not give an accused trial by jury and other Bill of Rights protections, the Government contends that section 2(11) of the UCMJ, insofar as it authorizes the military trial of dependents accompanying the Armed Forces in Great Britain and Japan, can be sustained as legislation which is necessary and proper to carry out the United States obligations under the international agreements made with those countries. The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. Article VI., the supremacy clause of the Constitution, declares: “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in article VI. make it clear that the reason treaties were not limited to those made in pursuance of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe article VI. as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the executive or by the executive and the Senate combined. There is nothing new or unique about what we say here. This court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. For example, in Geofroy v. Riggs (133 U. S. 258, 267), it declared: “The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the Government or of its departments, and those arising from the nature of the Government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the Government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.” This Court has also repeatedly taken the position that an act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument. There is nothing in Missouri v. Holland (252 U. S. 416), which is contrary to the position taken here. There the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the 10th amendment which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the 10th amendment is no barrier. In summary, we conclude that the Constitution in its entirety applied to the trials of Mrs. Smith and Mrs. Covert. Since their court-martial did not meet the requirements of article III., section 2, or the fifth and sixth amendments, we are compelled to determine if there is anything within the Constitution which authorizes the military trial of dependents accompanying the Armed Forces overseas.