Paradox of Self-Amendment by Peter Suber striking down the original statute, which Holmes never asserts. On the contrary, he suggests that the original legislation did exceed the enumerated powers of Congress, but that a treaty on the same subject may be valid under the treaty-making clause (Article II, §2), which could then justify implementing legislation. Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. Id. at 433. That is an accurate paraphrase of the supremacy clause (Article VI, §2), but in context Holmes made it suggest that treaties need not be consistent with the constitution provided they are "made under the authority of the United States" —which under Article II, §2, means to be made by the President with the concurrence of two-thirds of the Senate. It was this hint of the possibility of constitutional amendment or supersession by unilateral action of the President and the Senate that prompted the Bricker amendment 30 years later in 1953, to overturn Missouri, and to limit the effects of treaties and executive agreements. B. The Bricker amendment Executive agreements were even more worrisome than treaties in this respect, for they are unilateral acts of the President, without even the concurrence of the Senate. The constitution makes no provision for them, yet they have been held to supersede state law. U.S. v. Pink, 315 U.S. 203 (1942). In practice, executive agreements have virtually the same full range of contents as treaties. They have multiplied as both a cause and effect of the growing ambitions of the Executive over the last half century. Bricker's actual language prohibited the abridgment of the rights of American citizens by treaty (Sec. 1), prohibited the vesting of governmental powers in foreign or international bodies (Sec. 2), and prohibited the alteration or abridgment of federal laws, or of state laws and constitutions (suggesting a deliberate omission of the federal constitution) by treaty without the express action of Congress (Sec. 3). The other sections provided similar restrictions on executive agreements, provided Congress with power to enforce the amendment by appropriate legislation, and set a ratification deadline of seven years.[Note 14] Nothing in the amendment explicitly made the federal constitution superior to treaties or immune to amendment by treaty, except for those provisions of the constitution that allocate governmental powers and protect fundamental rights. Whether this omission should be blamed on poor draftsmanship or Senate bargaining is uncertain, for Bricker had more explicit and comprehensive language at his disposal that he chose not to use. The American Bar Association Committee on Peace and Law Through the United Nations drafted the following language, which the House of Delegates approved and which Bricker is known to have studied:[Note 15] Section 1. A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty. Language remarkably similar to this A.B.A. draft was proposed by North Carolina 165 years earlier. When other states were demanding a Bill of Rights in the federal constitution, North Carolina demanded an amendment that would say[Note 16] ...nor shall any treaty be valid which is contradictory to the Constitution of the United States. Scatterfield reports that Bricker was joined by 61 Senators in sponsoring his amendment; Chafee puts the number at "about 55".[Note 17] In any event a majority of Senators supported it, yet it did not pass the Congress to be submitted to the states. The strongest arguments against it were that it was unnecessary because treaties were already inferior to the constitution, a proposition many had reason to doubt, and that it would delay implementation and even ratification of treaties while Congress and the courts deliberated their merits.[Note 18] The Bricker amendment was, then, not only a potential example of self-amendment, but a case of Congress refusing to make determinate the indeterminate edges of one of the co-supreme powers of our legal system. Notes 1. Virtually all these rules are modified by the temporary suspension of a treaty while the United States is at war with the other signatories. Meier v. Schmidt, 150 Neb. 383, 34 N.W.2d 400 (1948). 2. These topics were discussed more thoroughly in Section 9.C. My final resolution of the problem lies in the concept of a completely, but contingently, reflexive hierarchy, for which see Section 21.D. 3. See Ilmar Tammelo, "The Antinomy of Parliamentary Sovereignty," Archiv für Rechts- und Sozialphilosophie, 44 (1958) 495-513, at pp. 509-10; W.J. Rees, "The Theory of Sovereignty Restated," Mind, 59 (1950) 495-521, at pp. 519f; Lester Bernhardt Orfield, The Amending of the Federal Constitution, University of Michigan Press, 1942, at p. 141. The relation between our supreme law and the external world order is well presented by George Grafton Wilson, "International Law and the Constitution," Boston University Law Review, 13 (1923) 234-60, 462-99. 4. This presupposes that at the time the Bricker amendment was proposed, treaties clearly could amend the constitution. John C. Scatterfield argued that treaties could do so, "Constitutional Amendment by Treaty and Executive Agreement," Mississippi Law Journal, 24 (1953) 280-94. Zechariah Chafee argued that treaties could not do so, "Amending the Constitution to Cripple Treaties," Louisiana Law Review, 12 (1952) 345-82. For other voices pro and con see note 18 below. It is possible that both sides were wrong, and that the effect of treaties on the constitution falls 121