Senator John Bricker (R-OH) proposed the Bricker Amendment nominally as a means of reducing the president’s treaty concluding powers. Though his amendment failed, Bricker’s efforts contributed to the near-forty-year delay in the United States’s ratification of the Genocide Convention, and reflect the interplay between Jim Crow and international human rights treaties in post-war America.
“My purpose in offering this resolution,” wrote Senator John Bricker (R-OH) in 1951, “is to bury the so-called covenant on human rights so deep that no one holding high public office will ever dare to attempt its resurrection.” Senator Bricker’s resolution, which ultimately grew into the Bricker Amendment, was the culmination of an organized effort by predominantly Southern senators to make dead letters out of the various UN human rights treaties being considered for ratification in the years following World War II. The nominal goal of Senator Bricker’s eponymous amendment was to amend the Constitution to curtail the president’s treaty-making authority, a seemingly innocuous change that belied a far more sinister intent.
For although ostensibly proposed to protect the United States from the threat of a “world government,” the Bricker Amendment was largely conceived as a means of ensuring the continuation of racial segregation in the Jim Crow South and protecting Jim Crow’s proponents from the obligations that would be imposed by the Universal Declaration of Human Rights (UDHR) and the Genocide Convention.
“The object of the Bricker Amendment,” wrote the prominent Black journalist Gordon B. Hancock in the midst of the debates surrounding its adoption, “is to free the United States from any limitations from the UN which might restrain this country in its anti-Negro attitudes.” As a direct consequence of these racial considerations, the Genocide Convention—which entered into force in 1951—was only ratified by the United States nearly forty years later, in 1988.
This was not, however, the only legacy of the Bricker Amendment’s racialized motivations. Although the amendment effort was defeated in 1954 by a fifty to forty-two vote in the Senate (with four abstentions), the Bricker Amendment nonetheless enjoys a substantial afterlife. Indeed, a desire to reconcile the United States’s international obligations with the Bricker Amendment’s commitment to Jim Crow would alter the fabric of American constitutional law. The history of the Bricker Amendment thus stands as a potent reminder of the degree to which racial animus has seeped into the very bedrock of the American legal system.
Hostility towards the Genocide Convention and the UDHR marked a historic shift in the foreign policy attitudes of the Southern states. Prior to the Bricker Amendment, the South was squarely in the internationalist camp. Between 1947 and 1952, for instance, 87 percent of Southern Democrats in the Senate supported treaties, resolutions, and amendments focused on collective security, compared with just 47 percent of Republicans. Southern senators from segregationist states thus overwhelmingly supported international obligations such as the North Atlantic Treaty, the Japanese Defense Treaty, and the Vandenberg Resolution. Each committed the United States to military action in defense of various allies and necessitated the same, if not greater, impositions on sovereignty as the Genocide Convention and the UDHR.
The apparent divergence between Southern attitudes toward collective security on one hand and human rights on the other is a direct product of the implications that both the UDHR and the Genocide Convention would have on institutionalized segregation. Thus, while framed as an attempt alternatively to keep the United States out of foreign entanglements, protect against infringements on domestic jurisdiction, and defend against the implementation of a world government, the Bricker Amendment was in actuality concerned with forestalling an effective abrogation of Jim Crow.
The architects of Jim Crow rule had good cause to fear the duties imposed by the human rights treaties, particularly the Genocide Convention. Included in the Convention’s definition of genocide is the killing of individuals from a given racial group, “causing serious bodily or mental harm to members of the group,” and “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” Considering that between 1865 and 1950 (one year before the Genocide Convention entered into force) there were more than 4,400 lynchings resulting in the deaths of nearly 6,500 Black men, women, and children in the United States, Southern proponents of the Bricker Amendment had reasonable grounds for alarm. A country intent on the maintenance of white supremacy enforced by racial violence could hardly accede to a treaty that would render this regime an international crime.
“Opponents of the Convention,” wrote current USAID Administrator and former US Ambassador to the UN Samantha Power, “played on the Senators’ insecurity, and argued that Senate passage would hand African-Americans a weapon in their struggle, enabling the victims of segregation to drag the United States before an international court on genocide charges.” The segregationists’ fears proved decisive. By the time the Convention was finally ratified nearly forty years later, the Senate had appended to it two reservations and five “understandings,” which drastically reduced the breadth of the United States’s obligations.
While the Bricker Amendment was ultimately rejected, it nonetheless resulted in what law professor David Sloss refers to as an “invisible constitutional transformation.” Prior to Senator Bricker’s failed constitutional campaign, it was largely taken for granted that, in accordance with the plain text of the Supremacy Clause of the Constitution, the individual states were bound by all treaties entered into by the federal government, regardless of whether congressional implementation of a given treaty was required or not. However, as law professor Martin S. Flaherty writes, “[c]hange, almost unnoticed by the general public, came after World War II, when the United Nations Charter and other treaties protecting human rights, among other things, threatened Jim Crow in the South.” This led to the ossification of a “de facto Bricker Amendment,” if not a de jure one.
Professor Thomas Lee writes that in order to reconcile human rights treaties with the Southern states’ entrenched tradition of racial segregation, and in order to head off Senator Bricker’s proposed constitutional change, opponents of the Bricker Amendment “dilute[d] treaty supremacy by grafting onto it the ‘non-self-executing’ rider.” Non-self-executing treaties—that is, treaties that require additional congressional action to have an impact—permit signatories to effectively ignore their treaty obligations while still being formal signatories.
As Professor Sloss elaborates, as a consequence of this interpretational shift, “modern doctrine holds that the treaty makers may opt out of the [supremacy clause] rule by deciding, at the time of treaty negotiation or ratification, that a particular treaty provision is “non-self-executing.” The dilution of the Supremacy Clause made it possible for the United States to be a party to the UDHR and the UN Charter—both of which explicitly prohibit racial discrimination—while simultaneously maintaining Jim Crow in the South.
The legacy of the Bricker Amendment and the Southern campaign against the early human rights treaties is, therefore, more complex than the initial failure of the United States to ratify the Genocide Convention. Rather, as Professors Sloss, Flaherty, and Lee all demonstrate, a determination to appease the proponents of racial discrimination directly affected the United States’s relationship with the international community by undermining the Supremacy Clause.
The impact of race on the American legal system is well documented: legalized housing discrimination, disproportionaly toxic air quality in communities of color, heightened rates of arrests of Black people for drugs despite comparable usage amongst whites, to name but a few. Each of these outcomes is the product of facially non-discriminatory laws. Added to this ignominious list is yet another reminder of the impact of race on the law, for as the preceding discussion attests to, the United States’s commitment to Jim Crow discreetly yet fundamentally altered the constitutional status of treaties.
Graham Glusman is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from Columbia University (Columbia College) in 2019.
