It is not infrequently pointed out by the advocates of constitutional amendments restricting the treaty powers that just such restrictions as are envisioned by the Bricker Resolution are, in fact, already the law in Canada, and that the Dominion has not only managed to “get along”—but has actually moved forward with great speed in terms of international importance.
The Canadian arrangement is frequently eulogized by the advocates of amendment as a model of constitutional horse-sense and practicality. Such damning praise is richly undeserved. The resemblances which appear to link the Canadian treaty powers and the Bricker Amendment are neither all substance nor all illusion. It can, however, be said that those which are shadow are irrelevant, and those which are substance are a source of regret to most Canadians. In neither instance is the analogy a very happy one.
There are, of course, important constitutional similarities between the two nations. Both Canada and the United States are products of a federation of colonies; both constitutions are the result of compromise; and both nations still face the problem of protecting “states’ rights.” These constitutionally-constant factors make comparison logically feasible.
Comparisons, when they are made, are, of course, always directed at the famous section two of the Bricker Resolution. This contains two entirely unconnected propositions which appear to have nothing more fundamental in common than the co-ownership of a verb. The first proposition requires that all treaties, before they may be considered to have altered the domestic law of the land, must first have been legislatively enacted. The second proposition requires that such enacting legislation be passed by the legislature which, in the absence of a treaty, would have jurisdiction over the particular subject-matter. Let us examine these two propositions in the light of the Canadian analogy.
The Bricker Amendment in Canada . . . a Rose-coloured Optical Illusion,
34 Neb. L. Rev. 59
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