Paradox of Self-Amendment by Peter Suber But while there is no clear-cut case, there are many rumblings that the power may exist. When President Truman ordered his Secretary of Commerce to seize many of the nation's steel mills in World War II, the Supreme Court held his act to be an unconstitutional extension of executive authority. Three dissenters, however, led by Chief Justice Vinson, found Truman's order not only justified, but constitutional, under the Charter of the United Nations and the North Atlantic Treaty. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 668, 669 (1952). Truman did not, as far as we know, act under the belief that international agreements authorized him to seize private property in the United States in a way that otherwise violated the constitution. But in the area of civil rights he deliberately tried to use the U.N. Charter to affect domestic law. When Congress proved reluctant to pass his civil rights program, Truman's Committee on Civil Rights tried to bypass Congress by having Truman's program incorporated into the U.N. Charter. In 1952 his Committee made such a proposal to the U.N.'s Human Rights Committee.[Note 7] At least this episode reflects the belief of the Truman administration that the U.N. Charter could establish civil liberties at the level of federal statutes, if not at the level of the constitution. Others believed this too, from conservatives who feared that the United States could be turned socialist by the U.N.[Note 8] to liberals who hoped with Truman's Committee on Civil Rights that the U.N. could adopt meaningful (and self-executing) civil rights legislation faster than our dawdling Congress.[Note 9] Article II of the U.N. Charter (as noted) said that nothing in the Charter "shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state." But as Moses Moskowitz has pointed out,[Note 10] Perhaps the correct position would be that once a matter has become, in one way or another, the subject of regulation by the United Nations, be it by resolution of the General Assembly or by convention between member states at the instance of the United Nations, that subject ceases to be a matter 'essentially within the domestic jurisdiction of the Member States.' Such views gave ample grounds for the hope and fear that the constitution could be amended by international agreements. In February of 1952 the Section of International and Comparative Law of the American Bar Association reported to the House of Delegates that treaties could, under certain circumstances, deprive Americans of rights guaranteed by the constitution.[Note 11] So far as the requirement of indictment by grand jury and trial by jury are concerned, these apply only to trials in the federal courts, and can have no application to an international court set up by a group of nations in the exercise of their treaty-making power....[T]here is no reason why such courts may not be created in the exercise of the treaty-making power. Supreme Court pronouncements have been ambiguous and inconsistent on the relative ranks of the constitution and treaties. In Doe v. Braden, 57 U.S. 635 (1853) the Court clearly said that the constitution was superior to treaties. When a treaty is properly adopted, then "the courts of justice have no right to annul or disregard any of its provisions, unless [the terms of the treaty] violate the Constitution of the United States." But only four years later it held that courts could not nullify treaties, even if they were inconsistent with the constitution. Fellow v. Blacksmith, 60 U.S. 366 (1857). By 1890 the treaty power was again under control: 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 government or of its departments, and those arising from the nature of 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.... Geofroy v. Riggs, 133 U.S. 258, 267 (1890); cf. Downes v. Bidwell, 182 U.S. 244 (1901), Reid v. Covert, 354 U.S. 1, 16 (1957). The continuing uncertainty of the relation between treaties and the constitution is well illustrated by U.S. v. Minnesota, 270 U.S. 181, 208 (1926) in which Justice Van Devanter summarized the history of the Supreme Court's position as that treaties are "generally...regarded as on much the same plane as acts of Congress, and are usually subject to the general limitations of the Constitution."[Note 12] In Milliken a treaty seemed to authorize what the Eighteenth Amendment (Prohibition) forbade, and in Fellow an apparent conflict between treaty and constitution was decided de facto in favor of the treaty. In both cases the treaty survived because judicial review failed or withdrew, not because any court positively affirmed the priority of the treaty. The most striking case of a treaty seeming to violate or amend the constitution, followed by an affirmative pronouncement of the Supreme Court, is Missouri v. Holland, 252 U.S. 416 (1920). In an earlier case a federal statute protecting migratory birds was struck down as unconstitutional for not falling under any of Congress's enumerated powers. U.S. v. Shauver, 214 F. 154 (E.D. Ark. 1914). The United States then (1918) entered into a treaty with Great Britain to protect migratory birds in substantially the same way as the recently voided federal statute. Congress enacted legislation that implemented the treaty domestically.[Note 13] Not surprisingly, this implementing legislation was soon attacked for attempting to do what a court had recently declared it unconstitutional for Congress to do. The precise complaint was that the enabling legislation violated the reserved powers of the State of Missouri under the Tenth Amendment. In Missouri the Supreme Court upheld the federal implementing legislation. This certainly looks like, and was widely perceived as, a case of an unconstitutional statute becoming constitutional solely because a treaty intervened to authorize it. As such it appeared to be a case of a treaty overriding or superseding the constitution, and amending it to the extent necessary to validate the implementing legislation. But Justice Holmes did not find the implementing legislation to be constitutional solely because it was authorized by the treaty. Primarily, he held, the implementing legislation was authorized by the "necessary and proper" clause (Article I, §8.18). This implies that the lower court erred in 120