Bricker Amendment - Aftermath

Aftermath

Senator Bricker introduced another proposal later in the 83rd Congress and proposed similar constitutional amendments in the 84th and 85th Congresses. While hearings were held in the 84th and 85th Congresses, the full Senate took no action and the idea of amending the Constitution was never again seriously considered. In part, this was because the Supreme Court issued rulings that undercut arguments for it, notably in Reid v. Covert.

The Supreme Court in 1957 declared that the United States could not abrogate the rights guaranteed to citizens in the Bill of Rights through international agreements. Reid v. Covert and Kinsella v. Krueger concerned the prosecution of two servicemen's wives who killed their husbands abroad and were, under the status of forces agreements in place, tried and convicted in American courts-martial. The Court found the Congress had no constitutional authority to subject servicemen's dependents to the Uniform Code of Military Justice and overturned the convictions. Justice Hugo Black's opinion for the Court declared:

There is nothing in which intimates that treaties and laws enacted pursuant to 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.

In Seery v. United States the government argued that an executive agreement allowed it to confiscate property in Austria owned by an American citizen without compensation. But this was rejected, the Court of Claims writing "there can be no doubt that an executive agreement, not being a transaction which is even mentioned in the Constitution, can impair constitutional rights."

The United States ultimately ratified the U.N.'s Genocide Convention in 1986. The Convention was signed with reservations, which prevented the law being enacted if it contradicted the Constitution. Several states expressed concern that this would undermine the provisions of the convention.

The Bricker Amendment is occasionally revived in Congress. For example, in 1997, Representative Helen Chenoweth (R–Idaho) offered her version of the Bricker Amendment in the 105th Congress.