tions both in theory and practice as the legislature for unincorporated territories. In this case, clearly, Congress has continually acted as the legislature for the Canal Zone. This fact is very important when viewed in the light of article IV, section 3, the first paragraph, which immediately precedes the language we have been discussing. This states that "no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned." In that sentence, the Constitution is protecting the integrity of State boundaries by forbidding changes without the consent of the legislatures involved. In the next sentence, which is the basis of this hearing, the Framers applied the same principle, by analogy, to unincorporated territories. The boundaries of such territories cannot be altered or diminished, or, in the ultimate, disposed of, without the consent of the legislature involved, that is to say, Congress. There is an obvious parallelism between the treatment of States and of territories, adapted to the specific conditions of each. In short, article IV, section 3 is a limitation on the treatymaking power of the President. It is, of course, true that article II, section 2, says that the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." But that sentence cannot be read in a vacuum. No one imagines, for example, that the President has the power to enter into a treaty, even with the consent of the Senate, which would abridge freedom of speech, freedom of religion, or any other aspect of the Bill of Rights. It is not enough to say that the Senate would never consent; the President has a sworn duty to uphold the Constitution in all of its parts. He does not have the authority to negotiate away part of it in the hope he can induce the Senate to go along. In the same manner, the President may not enter into negotiations that abridge the powers of the Congress. It is not just the outcome that abridges the powers of Congress; it is the very fact of entering into negotiations on matters within the powers of Congress that is an infringement on congressional authority. Any attempt to initiate the disposition of U.S. territory and property by the executive branch, without prior authorization, is an usurpation of power. Why is it an usurpation? It is an usurpation because the executive branch is acting on a domestic matter without congressional authorization. It is an usurpation because the territory itself and the sovereignty over it would necessarily devolve upon the ratification of the treaty itself without the concurrence of the House. The House may be called upon to pass enabling legislation after the treaty is ratified; but the House would be constrained to act within the terms of the treaty. A fundamental principle which has been assumed in the negotiations is the abrogation of the 1903 treaty with its grant of sovereign powers. But sovereignty itself is a property right, and falls within the power of Congress in article IV, section 3. If a treaty were ratified by the Senate before the House acted, the House would have no opportunity to act on this transcendent question. It would be faced with an accomplished fact. And even if the question were put to the House before the treaty were ratified by the Senate, the House would still be constrained by the overhanging treaty question. And indeed, the House could very well turn down the enabling legislation, or portions of it, only to find their action overridden by the passage of the treaty in the Senate. Treaties ordinarily contain portions which are self-executing and portions which are not self-executing. The House would not be able to act on any item that is self-executing; and some of the fundamental issues might be considered self-executing. The House clearly would have its article IV, section 3 powers abridged; and of course if one House suffers, the whole Congress suffers in its prestige and authority. The Senate cannot smugly stand on its ratification power and imagine that its overall authority will not be derogated. Moreover, even the Senate itself will have the fullness of its article IV, section 3 powers abridged, if it chooses to rely solely on its article II, section 2 ratification power. For the ratification power is fundamentally different from the legislative power in article IV. It should be obvious that ratification is after the fact; the terms have been established; no fundamental changes are possible in a practical sense. Slight modifications, such as reservations or understandings, may be attached, but the effect of these in international law is dubious. The only real alternative is complete rejection, which could have severe international repercussions. The Senate could very well find itself debating to determine the lesser of two evils, neither of which represent the best interests of the United States. But if the disposition of U.S. territory and property is treated as a legislative matter under article IV, then Congress itself sets the basic principles of negotiation. It gives the Executive guidelines as to what is acceptable. It strengthens the hands of the negotiators, since the opposite parties would know the limits of the negotiable items. And if the negotiators are not able to get a detailed agreement within the terms laid down, then they can return to Congress to seek appropriate legislation to enlarge their mandate. Moreover, the full play of the committee system can be brought into effect. If only a treaty is to be considered, only the Committee on Foreign Relations has jurisdiction. While I am sure that the distinguished members of that committee are experts in foreign affairs by virtue of their experience, the disposition of property, as I have already pointed out, is fundamentally a domestic matter, not a matter for foreign relations. The jurisdiction over the Canal Zone is split between the Commerce Committee and the Armed Services Committee. The Senators on those committees would not be able to bring their special expertise to bear on the markup and reporting process. The predominant concerns affecting the disposition of U.S. property would be those concerns relating to foreign affairs, and there would be no forum for the fundamental domestic concerns to receive committee review and to affect the final product reported to the floor. It is clear, therefore, that the ratification process is no substitute for the legislative process, even so far as the powers of the Senate itself are concerned. The ratification process is a rubber stamp which can be given or withheld; the legislative process is the fullness of congressional power, allowing both Senate and House to work their separate and collective wills on shaping and developing the terms of any disposition of U.S. territory and property. Mr. Chairman, there is no doubt but that the Canal Zone is unincorporated territory of the United States. Our instruments under international law have given us the rights of a sovereign; and of course our domestic law has always treated the Canal Zone as U.S. territory, a fact established by the U.S. Supreme Court as early as 1907, and reaffirmed many times, including as recently as 1972 when the Court let stand a lower court decision based on the 1907 case. Some have pointed to discrepancies between the way laws affect the 50 States and the way they affect the Canal Zone as though to imply that the zone is something less than U.S. territory. But the fact is that Congress itself is the author of those discrepancies, using its authority to make all needful rules and regulations for the territory under article IV, section 3. Moreover, the fact that the zone is and always has been a U.S. Government reservation means that special circumstances apply. The fact that certain descrepancies exist enhances the power of Congress because it shows that Congress is exercising the fullness of its article IV power. Indeed, such minor discrepancies strengthen, rather than diminish, the status of the Canal Zone as article IV territory. It is clear, therefore, that the President and the Secretary of State are bound by oath under article VI, section 3, of the Constitution and the laws of the land, as interpreted by the U.S. Supreme Court. It should be unnecessary to make such a statement, but for 12 years the executive branch has been acting as though the power to conduct international relations superseded its obligations under domestic law. On September 24, 1965, President Johnson announced that the treaty of 1903 would be abrogated and that negotiations would begin on new treaties. That in itself was an unauthorized usurpation of power. Congress had in no way provided authority by legislation or by resolution which would allow President Johnson to assume article IV powers. In fact, just the opposite was the case. Numerous actions, particularly in the House of Representatives, had indicated that the sentiment was against the abrogation of the sovereignty and perpetuity clauses of the 1903 treaty. Indeed, by the time that the treaties had been negotiated pursuant to the President's announcement and initialed in 1967, the sentiment in both Houses was strongly opposed to them. In fact, the executive branch felt that the sentiment was so strong that the treaties were not even sent up to the Senate. Nevertheless, on February 4, 1974, then Secretary of State Henry Kissinger signed a so-called agreement on basic principles with Panamanian Foreign Minister Juan Tack. Mr. Chairman, I ask that a copy of the basic principles be included in the record with my testimony. [The joint statement follows:] JOINT STATEMENT BY THE HONORABLE HENRY The United States of America and the Republic of Panama have been engaged in negotiations to conclude an entirely new treaty respecting the Panama Canal, negotiations which were made possible by the Joint Declaration between the two countries of April 3, 1964, agreed to under the auspices of the Permanent Council of the Organization of American States acting provisionally as the Organ of Consultation. The new treaty would abrogate the treaty existing since 1903 and its subsequent amendments, establishing the necessary conditions for a modern relationship between the two countries based on the most profound mutual respect. Since the end of last November, the authorized representatives of the two governments have been holding important conversations which have permitted agreement to be reached on a set of fundamental principles which will serve to guide the negotiators in the effort to conclude a just and equitable treaty eliminating, once and for all, the causes of conflict between the two countries. The principles to which we have agreed, on behalf of our respective governments, are as follows: 1. The treaty of 1903 and its amendments will be abrogated by the conclusion of an entirely new interoceanic canal treaty. 2. 3. 4. 5. The concept of perpetuity will be eliminated. The Termination of United States jurisdiction over The Panamanian territory in which the canal is The Republic of Panama shall have a just and equit- |