LIQUOR TREATY PROBLEM.

New Zealand Herald, Volume LXI, Issue 18601, 8 January 1924, Page 7

LIQUOR TREATY PROBLEM.

AMERICA'S CONCESSION.

CONSTITUTIONAL VALIDITY.

BRITAIN SEEKS SURETY.

By Telegraph Press Association— A. and N.Z. LONDON, Jan. 6.

The Washington correspondent" of the Times says that the British Government's fear that the United States Supreme Court will declare the proposed liquor search treaty unconstitutional is still delaying negotiations, despite the State Department's assurances that the pact is entirely constitutional.

The British Government is extremely Anxious that the treaty should become effective as a whole or not at all, and has asked the United States to agree that if the Supreme Court declares part of the treaty unconstitutional, especially the provision permitting British liners to bring liquor into United States territorial waters under bond, the whole treaty shall become inoperative.

British fears are based on the Supreme Court's decision in the so-called liquor transit case, when it was decided that liquor could not be carried on railroads through the United States from Canada or Mexico, although under bond. _ The holding of liquor aboard a British liner might be considered a violation of this principle. Tho State Department holds that this is not applicable to liquor on liners, which is being consigned to nowhere, but which is a portion of the shin's stores.

AMERICANS PERPLEXED. 9 CONFLICT OF LAW AND TREATY. By the treaty now being negotiated between the United- States and Britain, the United States is to have the privilege of searching all British vessels in an indefinite area off the- American coast to prevent the smuggling of liquor, and in return for this privilege British vessels are to be permitted to bring into American ports liquor under seal so that it may be used on the return voyage when the vessel is outside American jurisdiction. This has started a very interesting controversy, wrote Sir A. Maurice Low from Washington, to .th©, Times recently. Newspapers of the highest standing show 1 an ignorance of the Constitution that is really surprising. Lawyers are battlinir over the meaning of words. And the public is befogced. The Constitution (Article VI., Section 2) ordains that " 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 ho the supreme law of the land ; and 'the Judges in every State shall be bound thereby; anything in the Constitution or laws of any State to the contrary notwithstanding." That, it would seem, is simple enough. Common sense shows it is a limitation upon the States. Congress can make laws only under the powers derived from tha Constitution. Treaties can be made only in accordance with the constitutional method, that is, by the President with the assent of two-thirds of the Senate. These two things, laws passed by Congress and treaties '(Constitutionally negotiated and ratified, constitute the supreme law of the land. If any State should incorporate into its Constitution or enact a law repugnant to a law passed by Congress or a treaty it would be invalid. Treaty May Repeal Law. , The Constitution, it will be noted, makes laws and treaties " the supreme law of the laud hence in America, unlike in Europe, where , treaty-making is, in theory at least, the prerogative of the Sovereign, a treaty is both an international compact and municipal law. Inasmuch as the Constitution brackets laws and treaties, it is obvious neither is superior to the other ; but the Srpreme Court has removed all doubt. It has decided that a treaty may act as the repeal of a law, and a law may, in effect, abrogate a treaty. Whenever there is conflict between a law and a treaty or vice versa. | the result is the same as when there is conflict between two laws. In that case the last enactment prevails. The Eighteenth Amendment to the Constitution prohibits the importation of beverage liquor, and the Supreme Cov.rt held that liquor brought in under seal is an importation, hence a violation of the Constitution. That is elementary, but many newspapers, some of them of the # highest standing, have read the Constitution with so little understanding that they have told their readers that a treaty is " supreme," and that anything the President may do by treaty, if it is concurred in by the, necessary majority of the Senate, is binding upon" the American Government and constitutes a valid contract with a foreign nation. This is a confusion of ideas. A law cannot override the Constitution. A treaty cannot add to or subtract from the Constitution. This has been decided by the Supreme Court.

Supreme Court Must Decide. Nobody claims that Consrress can by lay permit the importation of liquor, yet it is now proposed to do by treaty what admittedly could not be done by law. That is what puzzles the public, many newspapers, and some lawyers. When the President, himself a lawyer, and Secretary Hughes, one of "the foremost lawyers in the country and a former member of the Supreme Court, are the propounded of the treaty plan and have publicly announced they are certain the treaty is no't repugnant to the Constitution, it would seem as if that should be sufficient and remove all doubts. But thero are lawyers of excellent standing who say the so-called treaty is as full of holes as a sieve, and the Supreme Court would quickly prove it is too leaky to hold whisky even inside the three-mile limit. The subject may be left here until the expounder of 'the Constitution, the Supreme Court of the United States, passes judgment upon it, but ft is, a trifle inconsistent for Americans to criticise Europeans for not understanding the American Constitution when they themselves cannot agree what its powers are.