Eisenhower in War and Peace

Ike was also not the best golfer to occupy the White House. That distinction goes to John F. Kennedy, who was obsessively secretive about his love for the game. But of the fourteen presidents since William Howard Taft who have played golf while in the White House,^a Eisenhower was clearly the most dedicated. When Ike took office in 1953, 3.2 million Americans played the game on some five thousand golf courses around the nation.² By 1961, the number of golfers had more than doubled, and there were not enough tee times to meet the surging demand. “Whatever remained to be done to remove the last traces of the average man’s carefully nurtured prejudice against a game originally linked with the wealthy and aloof was done by President Eisenhower,” wrote historian Herbert Warren Wind.³ Ike made golf accessible, motivating millions of men who were forty and over to try the game for the first time.⁴

Golf was as necessary to Eisenhower’s mental health as a good night’s sleep. “Without golf,” said Major General Howard Snyder, the president’s longtime personal physician, “he’d be like a caged lion, with all those tensions building up inside him. If this fellow couldn’t play golf, I’d have a nut case on my hands.”⁵

The Democrats initially sought partisan advantage and criticized Ike for his time on the links. Some portrayed him as a full-time golfer who moonlighted as president. “Ben Hogan for President,” read a bumper sticker in the 1956 campaign. “If we’re going to have a golfer, let’s have a good one.” Others joked that Ike had a thirty-six-hole workweek, which was literally true since he usually played a round on Wednesday afternoon and another on Saturday morning.⁷ It was President Truman—a nongolfer himself—who finally blew the whistle on such criticism. “To criticize the President … because he plays a game of golf is unfair and picayunish,” said Truman. “He has the same right to relax from the heavy burdens of office as any other man.”⁸ ^b

It was clear that Eisenhower needed the relaxation. While Ike might delegate the details, the major decisions—and the responsibility—rested with him. The Republicans in Congress had no intention of giving up their opposition to the federal government just because their party had captured the White House. Eisenhower’s principal adversaries throughout his tenure as president were not the Democrats but the calcified wing of the Republican party, which continued to live in the shadow of Calvin Coolidge and to see Communists under every bedstead.

Senate confirmation of Bedell Smith and James B. Conant represented preliminary skirmishes. The first real battle between Eisenhower and McCarthy was joined on February 27, 1953, when Eisenhower nominated Charles E. “Chip” Bohlen to be ambassador to Moscow. A career Foreign Service officer who was fluent in Russian and French, Bohlen was currently serving as counselor in the State Department, the senior professional post. He had previously served in Moscow and was considered an authority on Soviet affairs. Because of his fluency in Russian, he had been FDR’s interpreter at Teheran and Yalta, and had served Truman in the same capacity at Potsdam. For McCarthy, that was tantamount to treason.

Dulles warned the president that the nomination might be in trouble and at one point appeared ready to throw Bohlen under the bus, but Eisenhower would have none of it. “I knew Bohlen and had learned to respect and like him,” said Ike. “When I was the Allied commander in NATO … I had many conversations with him concerning our difficulties with the Soviets. So fully did I believe in his tough, firm but fair attitude … that I came to look upon him as one of the ablest Foreign Service officers I had ever met.”¹⁵ Eisenhower assumed that if he made his support for Bohlen clear, the Republicans in the Senate would fall into line. That did not happen. Not only was Bohlen tarred for having been an accomplice to the “sell out” to Stalin at Teheran and Yalta, but there was also derogatory information in his FBI security file that had been leaked to McCarthy.^c

Eisenhower, who was confident Bohlen would pass muster, overruled Attorney General Brownell and authorized two senators, one from each party, Taft and Alabama’s John Sparkman, to review the file. After reading the file at the Department of Justice, Taft and Sparkman reported that it contained nothing that should stand in the way of Bohlen’s confirmation.¹⁶

Nevertheless, a bitter floor fight followed. In a lengthy Senate speech, McCarthy asserted that Bohlen had been “at Roosevelt’s left hand at Teheran and Yalta, and at Truman’s left hand at Potsdam,” and ranted about his “ugly record of great betrayal.” Senator Herman Welker of Idaho said, “Don’t send Bohlen to Moscow. Send General Van Fleet [the commander of Eighth Army in Korea] instead.” Senator Everett Dirksen piled on. “I reject Yalta, so I reject Yalta men.”¹⁷

McCarthy had struck out against Ike’s diplomatic nominees. The State Department’s Voice of America provided easier pickings. In February, the Government Operations Committee set out to purge the VOA’s 189 overseas libraries of the works of pro-Communist authors. McCarthy charged that the committee had found more than thirty thousand books by 418 suspect writers, including W. H. Auden, Edna Ferber, John Dewey, Bernard De Voto, and Arthur Schlesinger, Jr.²⁰ Dashiel Hammett’s totally nonpolitical detective classics The Maltese Falcon and The Thin Man were expunged because Hammett was a “Fifth Amendment Communist,” based on his refusal to testify before the House Un-American Activities Committee.²¹

Eisenhower struck back on June 14. Slated to give the commencement address at Dartmouth College, Ike found himself on the platform with fellow honorary degree recipients John McCloy; Sherman Adams (Dartmouth, 1920); Lester Pearson, the Canadian minister of external affairs; and Joseph Proskauer, chairman of the New York State Crime Commission. McCloy, who was well connected in Germany after his years as high commissioner, was telling the others how books were being burned in American libraries abroad at the instigation of Senator McCarthy.

“I was telling about the burning of State Department books abroad,” McCloy replied.

“I’m afraid they are, Mr. President. I have the evidence. And the value of those books that are being destroyed was that they were uncensored. They criticize you and me and anyone else in government. The Germans knew they were uncensored and that’s why they streamed into our libraries.”²³

There was little doubt about Eisenhower’s target. Telegrams and messages pouring into the White House backed the president ten to one. On Capitol Hill, reaction was mixed. “He couldn’t very well have been referring to me,” McCarthy deadpanned. “I have burned no books.”²⁵

Eisenhower’s Dartmouth College speech notwithstanding, McCarthy had a pernicious impact throughout the government. Several of Eisenhower’s cabinet appointees—Arthur Summerfield and Sinclair Weeks, for example—initially were strong supporters of the senator, as was General Jerry Persons, Ike’s congressional aide. The Loyalty Review Board appointed by President Truman worked overtime to discover Communist sympathizers on the federal payroll. American employees of international organizations were caught up in the net. Ralph Bunche of the United Nations, who had won the Nobel Peace Prize in 1950 for negotiating an armistice between Israel and the Arab states, was investigated by the board as a dangerous leftist.

When Eisenhower learned that the FBI was collecting information branding Bunche a Communist, he was appalled. “I am willing to bet he’s no more a Communist than I am,” Ike told cabinet secretary Max Rabb.

“I feel very strongly about this,” said the president. “Bunche is a superior man, a credit to our country. I just can’t stand by and permit a man like that to be chopped to pieces because of McCarthy feeling.”²⁶

Eisenhower asked Bunche how he could help, but Bunche was confident he could handle the matter himself. He was called before the board to answer accusations on several occasions. One hearing was shortened to enable Bunche to keep a dinner appointment. He had been invited to dine at the White House with the president.²⁷ Eisenhower offered no direct help, but the symbolism was unmistakable. On May 28, 1954, the Loyalty Board unanimously found that Bunche was above suspicion and that his loyalty to the United States was not in doubt.

Eisenhower’s luck ran true to form. At the end of 1953, McCarthy’s approval ratings had reached an all-time high of 50 percent in the Gallup poll.²⁹ Encouraged by that showing, McCarthy unleashed his committee’s investigative team to rout out Communists in the United States Army. Informed by one of his many spotters that an Army dentist at Camp Kilmer, New Jersey, was a member of the American Labor Party (a Trotskyite group on the attorney general’s list of subversive organizations), the senator launched a full-scale investigation. The officer in question was Captain Irving Peress, a dentist at Camp Kilmer’s reception center for inductees, who had been drafted into the service for two years under the doctor draft law. Peress had refused to sign a loyalty oath, and the Army’s adjutant general was preparing his discharge papers. Before the discharge came through, McCarthy interrogated Peress, who invoked the Fifth Amendment and declined to testify. McCarthy demanded that Peress be court-martialed. Peress requested an immediate discharge and the Army complied, routinely promoting him to major in the process—as the doctor draft law required.

McCarthy had crossed the line. The American Legion and the Veterans of Foreign Wars issued public rebukes, and even the Chicago Tribune editorialized that General Zwicker deserved better treatment.³¹ On the Senate floor, Republican senator Ralph Flanders of Vermont rose to deliver the sharpest attack yet made on McCarthy by a colleague. “In this battle [against Communism] what is the part played by the junior Senator from Wisconsin? He dons his war paint, he goes into his war dance, he emits his war whoops. He goes forth to battle and proudly returns with the scalp of a pink Army dentist.”³² Flanders, a former president of the Federal Reserve Bank of Boston, enjoyed impeccable Republican credentials. Scarcely had he finished speaking than he received a note from the White House. “I was very much interested in reading the comments you made in the Senate today,” wrote Eisenhower. “I think America needs to hear more Republican voices like yours.”³³

That same evening, Edward R. Murrow broke television journalism’s self-imposed ban against attacking McCarthy and devoted his entire program See It Now to film clips of the senator in action—bullying, blustering, out of control. “The line between investigation and persecution is a very fine one,” said Murrow, “and the junior senator from Wisconsin has stepped over it repeatedly.”³⁴ The next day Eisenhower invited Murrow to the White House and congratulated him.³⁵

Eisenhower explained his unwillingness to attack McCarthy directly. “This is not namby-pamby,” Ike wrote his friend Paul Helms. “It is certainly not Pollyanna-ish. It is just common sense. A leader’s job is to get others to go along with him in promoting something.… I am quite sure that the people who want me to stand up and publicly label McCarthy with derogatory titles are the most mistaken people that are dealing with this whole problem, even though in many instances they happen to be my warm friends.”³⁶

First off the mark was the Army. Secretary Robert T. Stevens, who had already crossed swords with McCarthy, ordered General Zwicker not to testify further before McCarthy’s committee. The order was expanded to include all members of the military. Officers were instructed to ignore whatever summonses they might receive from McCarthy. Eisenhower escalated the response. Writing to Secretary of Defense Charles Wilson, the president extended the ban to all employees of the executive branch. Not only were they not to testify, but they were forbidden to submit any documents or other evidence to the committee. “I direct this action so as to maintain the proper separation of powers between the Executive and Legislative Branches of the Government in accordance with my responsibilities and duties under the Constitution,” Eisenhower wrote. “This separation is vital to preclude the exercise of arbitrary power by any branch of the Government.”³⁹ As Ike told Senate majority leader Knowland, “My people are not going to be subpoenaed.”⁴⁰

Eisenhower’s action was unprecedented. He had expanded the concept of executive privilege far beyond that employed by any of his predecessors. Arthur Schlesinger, Jr., writing in The Imperial Presidency, called it “the most absolute assertion of presidential right to withhold information from Congress ever uttered to that day in American history.”⁴¹ McCarthy was stymied. Without the power to subpoena government records or employees, his investigations would grind to a halt. McCarthy appealed to government employees to disregard the president’s order and report directly to him on “graft, corruption, Communism, and treason.”⁴² Insofar as Eisenhower was concerned, McCarthy was now beyond the pale. The senator’s statement, he told Jim Hagerty, “is the most arrogant invitation to subversion and disloyalty that I have ever heard of. I won’t stand for it one minute.”⁴³

The hearings began on April 22, and were televised nationally. The Army was represented by Joseph Welch, a gentle, courtly, old-fashioned lawyer from the prestigious Boston firm of Hale and Dorr. McCarthy and Cohn acted as their own counsel. The hearings lasted thirty-five days, and across the country the nation watched, spellbound by the spectacle. (I was in my senior year at Princeton, and classes regularly shut down as we tromped over to Whig Hall to sit before one of the few large-screen television sets on campus. My classmate Donald Rumsfeld ascribes his decision to enter politics partially to the fascination he felt watching the hearings.)⁴⁵ The folksy, understated manner of Joseph Welch played well on television. McCarthy and Cohn came across as villainous bullies engulfed in a cloud of darkness.

The high point of the hearings came with Roy Cohn on the witness stand. He was being examined by Welch about a cropped photo of Army Secretary Stevens and Private Schine. Welch wanted to know who had cropped the photo, and Cohn was being evasive. Finally, in exasperation, Welch said, “Surely, Mr. Cohn, you don’t suggest it was done by a pixie?”

McCarthy interrupted. “Point of order. Point of order, Mr. Chairman. Will Mr. Welch please tell the Committee what a pixie is?”

As the battle with McCarthy played out, Eisenhower was engaged on another front with Senate conservatives who sought to amend the Constitution to restrict the power of the president to conclude agreements with foreign countries. The immediate impetus for the drive stemmed from FDR’s wartime agreements with the Soviet Union, but the issue was one of long standing.

Article 6 of the Constitution provides 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 be the supreme Law of the Land.”

This is known as the “supremacy clause.” Note that for a law passed by Congress to be the supreme law of the land, it must be made pursuant to the Constitution. But treaties face no such test. A treaty becomes the supreme law of the land as soon as it goes into effect. And, except for the requirement that a treaty cannot violate the express terms of the Constitution, there is no limit to the treaty power.⁴⁸ In 1916, the United States government wanted to regulate the hunting of migratory birds on their annual flights in spring and fall, but it lacked authority under the Constitution to do so. So it concluded a treaty with Canada that had the same effect.^f And this pertained not only to treaties. Executive agreements made by the president with foreign countries, which unlike treaties do not require the approval of two-thirds of the Senate, also become the supreme law of the land as soon as they go into effect.⁴⁹ And because both treaties and executive agreements supersede state law, states’ rights advocates since the time of the Migratory Bird Treaty in 1916 have sought to curtail the treaty power. Roosevelt’s wartime agreements with Stalin gave the movement a new urgency, and additional fuel was added to the fire by agreements relating to the United Nations, particularly a proposed “Covenant on Human Rights,” which conservatives charged would impose “socialism by treaty” on the United States.

When the Eighty-third Congress convened on January 7, 1953, Senator John Bricker of Ohio, who had been Dewey’s running mate in 1944, stepped forward to introduce a constitutional amendment to restrict the treaty power. Designated Senate Joint Resolution 1 (S.J. Res. 1), Bricker’s amendment would give Congress the power to regulate all agreements made by the president with foreign countries. It also specified that a treaty would become effective as internal law in the United States “only through legislation which would be valid in the absence of a treaty,” in effect repealing the Supreme Court’s 1920 decision in the migratory bird case.⁵⁰

The Bricker Amendment was cosponsored by sixty-four senators, giving it the necessary two-thirds of the Senate required for passage, even if all ninety-six senators voted. Forty-five of the Senate’s forty-eight Republicans backed the resolution, as did nineteen Democrats. If the amendment cleared the Senate, passage by two-thirds of the House of Representatives was a foregone conclusion, and in the political climate of 1953, adoption by three-quarters of the state legislatures was all but guaranteed. The amendment was endorsed by a large portion of the American Bar Association, the U.S. Chamber of Commerce, the Daughters of the American Revolution, the American Legion, the Veterans of Foreign Wars, and a grassroots organization called Vigilant Women for the Bricker Amendment, which quickly obtained more than a half million signatures in support. Mail to congressional offices ran nine to one in favor of the amendment, and with the exception of The Washington Post and The New York Times, most of the nation’s press supported it as well.⁵¹

Initially, Eisenhower sought to conciliate the GOP’s Old Guard and avoid a confrontation. “Can’t we find a way to avert a head-on collision over this thing?” Ike asked early on.⁵³ In the case of McCarthy, the president had resisted the temptation to criticize the senator because he believed it would work to McCarthy’s advantage. In the case of Bricker, Eisenhower wanted to avoid disclosing the fissure in the Republican party. “I’m so sick of this I could scream,” he told his cabinet in early April. “The whole damn thing is senseless and plain damaging to the prestige of the United States. We talk about the French not being able to govern themselves—and we sit here wrestling with the Bricker Amendment.”⁵⁴

Eisenhower’s primary objection to the Bricker Amendment was that it would curtail the power of the president to conclude agreements with foreign countries. That would include the status-of-forces agreements that the United States was negotiating with the various NATO countries and with which Ike had firsthand familiarity. To give Congress control of those arrangements would add boundless complications. Perhaps equally important, the Bricker Amendment would subject all treaties to continuing review by Congress. That would jeopardize the permanence of treaties because one Congress could nullify the action of a preceding Congress. If that were the case, few foreign countries would feel comfortable negotiating with the United States. America was now the principal power in the Western world and the primary obstacle to Communist expansion. This was no time to be curtailing the power of the president to conduct foreign affairs.

Eisenhower made it through the first session of the Eighty-third Congress without the Bricker Amendment coming to a vote. The amendment stayed on the front pages of the nation’s newspapers but the president declined to make a public statement. Lucius Clay watched from the sidelines. “The White House staff always got a little edgy whenever I got involved, so I tried to be very careful not to get involved.”⁵⁶

Late in 1953, Clay received a telephone call from John W. Davis, the distinguished constitutional lawyer (of Davis, Polk, Wardwell, Sunderland, and Kiendl) who had been the Democratic nominee for president in 1924 against Calvin Coolidge. “Davis was held in awe by most of the legal profession,” said Clay. “I knew him, but not well.”⁵⁷

Davis told Clay how concerned he was about the Bricker Amendment, and how he and Professor Edward S. Corwin at Princeton, the dean of constitutional law scholars, were organizing a committee to fight it: the Committee for Defense of the Constitution. Davis asked Clay if he would join them as cochairman.

Davis and Professor Corwin dined with Eisenhower on January 23, 1954. Two days later, Ike went public. “I am unalterably opposed to the Bricker Amendment,” the president wrote Senate majority leader Knowland. “Adoption of the Bricker Amendment by the Senate would be notice to our friends as well as our enemies abroad that our country intends to withdraw from its leadership in world affairs.”⁵⁹ The battle lines were now drawn: Eisenhower and Senate liberals against the conservative blocs in both parties. Lyndon Johnson, the Senate minority leader, held the key.

Johnson and his fellow New Deal Democrats from the South were caught between a rock and a hard place. They did not want to diminish the authority of the president to conduct foreign policy, but their constituents expected them to vote for the Bricker Amendment. In Johnson’s case his major financial backers, Texas millionaires Sid Richardson, Clint Murchison, H. R. Cullen, and H. L. Hunt, insisted that he vote in favor of it.

Eisenhower won the Bricker Amendment fight, but his leadership had been hesitant. Not until John W. Davis and Professor Corwin aroused him to the constitutional danger posed by the amendment did he take his opposition public. The true victors in the amendment fight were Davis, who organized the opposition and knew which buttons to press, and Lyndon Johnson, whose Machiavellian dexterity ultimately saved the day.

Eisenhower’s battles with McCarthy, Bricker, and the Old Guard of the GOP drove him toward the center—toward the Democrats and the liberal wing of the Republican party. When Chief Justice Fred Vinson died unexpectedly of a massive heart attack on September 8, 1953 (Vinson was sixty-three), it was natural that Ike should look to his left for a replacement. Eisenhower’s first instinct was to promote from within. That was the Army’s method, and it made imminent sense. There would be no break-in period. The obvious choice was Associate Justice Robert H. Jackson, who had been American chief prosecutor at the Nuremberg war crimes trials. The fact that Jackson was a Democrat did not seem to matter. What ruled him out was the bitter public feud he was conducting with Justice Hugo Black. Brownell warned Ike against taking sides, and also noted that Jackson, as an assistant attorney general, had backed FDR’s court-packing effort in 1937. The only Republican on the court was Harold Burton, a former senator from Ohio whom Harry Truman had appointed in 1945. But Burton was in poor health and probably not up to the job in any case.

That left Earl Warren. During the campaign, Eisenhower had met with Warren on several occasions and discussed the possibility of either a cabinet post or a Supreme Court appointment.^h In early December, as president-elect, Eisenhower called Warren to tell him that he would not be asked to join the cabinet. “But I want you to know that I intend to offer you the first vacancy on the Supreme Court. That is my personal commitment to you.”⁶⁴

Eisenhower may or may not have assumed that his commitment to Warren included the chief justiceship. In his Memoirs, Ike said he did not. Warren assumed it did. In any event, finding himself unable to make an internal appointment, and with Davis and Dulles out of the picture, Eisenhower dispatched Brownell to California to offer the post to Warren. The fall term of the court would begin on October 5, and Ike wanted the vacancy filled before then. A number of important cases were on the calendar—including reargument of the great desegregation case Brown v. Board of Education—and it was important to have a full bench.

Brownell flew to California and met clandestinely with Warren at McClellan Air Force Base, ten miles from Sacramento, on Sunday morning, September 27. Brownell made the offer and Warren accepted. The only condition, said Brownell, “is that you take your seat a week from tomorrow.” Warren allowed as how that was “a helluva way” to leave the governorship of California after eleven years, but if it was necessary it could be done.⁶⁷ At his press conference three days later, Wednesday, September 30, Eisenhower announced Warren’s appointment as chief justice of the United States. It was a recess appointment, Congress was not in session, and Warren took the oath of office in the Supreme Court chamber on October 5.ⁱ

Eisenhower’s brothers Edgar and Milton both criticized the choice. From his perch on the Far Right, Edgar said Warren’s appointment “would be a tragedy” and would cost Ike “a lot of support.” Milton, who was now president of Penn State, thought Warren to be dangerously to the right.⁷⁰ Eisenhower took time off to reply to both. “What you consider a tragedy, I consider a very splendid and promising development,” he wrote Edgar. “I wonder how often you have met and talked seriously with Governor Warren. This I have done on a number of occasions. To my mind, he is a statesman, a man of national stature, of unimpeachable integrity, of middle-of-the-road views, and with a splendid record during his years of active law work.”⁷¹

Ike told Milton he was surprised Milton thought Warren too far to the right, since so far “the only people that opposed the idea of his appointment were of the Chicago Tribune stripe.”

Eisenhower’s appointment of Earl Warren to be chief justice of the United States, like John Adams’s appointment of John Marshall, was one of the major events of his presidency. Ultimately, Ike would appoint five justices to the court, including John Marshall Harlan and William Brennan.⁷⁵ His appointees ushered in a judicial revolution in citizenship law, civil liberties, and civil rights. Eisenhower did not always agree with the decisions of the Warren Court, but he accepted his constitutional responsibility to “take care that the laws be faithfully enforced.” He was also the first president to submit his judicial nominees to the American Bar Association for formal vetting (a practice discontinued by George W. Bush but resumed by President Obama). His appointees to the lower federal courts, moderate Republicans such as John Minor Wisdom in Louisiana and Elbert P. Tuttle in Georgia, were judicial heroes in the civil rights struggle. Those who would criticize Eisenhower for not moving fast enough on civil rights should remember that it was his judicial nominees who made the revolution possible.

^a Truman, Hoover, and Jimmy Carter did not play.

^b Eisenhower’s brother Edgar sent him a cartoon from the Chicago Tribune critical of his golfing. “My only comment,” Ike replied, “is that while I may allow my eye to stray from the ball, I am never so careless as to let it stray far enough so as to read the Chicago Tribune.” DDE to Edgar Newton Eisenhower, June 9, 1953, The Papers of Dwight David Eisenhower, vol. 14, The Presidency 287. Cited subsequently as 14 The Presidency.

^c In the argot of the 1950s, the damaging information in Bohlen’s security file pertained to his “family life,” a euphemism for his sexual orientation. The suggestion was that he was homosexual. The accusation, which was unfounded, was based on the fact that once while serving abroad he had rented his house in Washington to a homosexual couple.

^d Of the thirteen no votes, eleven were Republicans: John Bricker (Ohio), Styles Bridges (New Hampshire), Everett Dirksen (Illinois), Henry Dworshak (Idaho), Barry Goldwater (Arizona), Bourke Hickenlooper (Iowa), George “Molly” Malone (Nevada), Joseph McCarthy (Wisconsin), Karl Mundt (South Dakota), Andrew Schoeppel (Kansas), and Herman Welker (Idaho). Democrats Pat McCarran of Nevada and Edwin C. Johnson of Colorado also voted no.

^e Franklin Roosevelt made a fatal error in 1937 when he intervened in the Democratic caucus to force the election of Alben Barkley (Kentucky) as majority leader instead of Pat Harrison (Mississippi), the Senate’s sentimental choice. Many senators, especially those from the South, never forgave the president. Jean Edward Smith, FDR 391–92.

^f At the beginning of the twentieth century, naturalists and other environmentalists became concerned that migratory fowl were threatened with extinction because of unregulated hunting during their biannual flights. In 1913, Congress passed legislation to restrict such hunting, but the courts struck it down because there was no provision in the Constitution that gave Congress that authority. The federal government responded by negotiating the Migratory Bird Treaty of 1916 with Great Britain (on Canada’s behalf), which accomplished the same purpose. This was upheld by the Supreme Court in 1920 in the leading case of Missouri v. Holland, 252 U.S. 416. Said Justice Oliver Wendell Holmes, Jr., speaking for the court: “Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared so when made under the authority of the United States.”

^g The “George substitute” for the Bricker Amendment deleted the objectionable “which clause”—“A treaty shall become effective as domestic law … only through legislation which would be valid in the absence of treaty”—as well as the provision that would have subjected executive agreements to congressional review. The text of the George substitute is reprinted in note 60.

^h Eisenhower was indebted to Warren for his action at the Republican convention, as well as for campaigning vigorously for the ticket. At the convention, California had supported Ike’s forces and voted for the “Fair Play Amendment,” which led to the seating of the Eisenhower delegations from Georgia, Louisiana, and Texas. Then he had remained in the race as a favorite son, denying California’s seventy votes to Taft. Eisenhower always denied he was politically indebted to Warren, but that was often Ike’s way. See 14 The Presidency 564–70, diary entry October 8, 1953.

ⁱ According to legend, after he left office Eisenhower is supposed to have said that his great mistake as president was to appoint Earl Warren chief justice of the United States. The legend has acquired the status of revealed truth, and countless writers have cited it as if it were fact. The problem is that Eisenhower never said that. I have found no evidence that he ever made such a statement. To the contrary, there is abundant evidence that he did not. Herbert Brownell, who was also concerned about the allegation, conducted his own detailed investigation and reported that the story was apocryphal.

Myths about presidents and chief justices are plentiful. An analogous canard pertains to Andrew Jackson and Chief Justice John Marshall. After Marshall rendered the decision of the court in the 1832 Cherokee case (Worcester v. Georgia, 31 U.S. 515), President Jackson is alleged to have said, “John Marshall has made his decision, now let him enforce it.” Again, the problem is that Jackson never said that. It was concocted by Horace Greeley in 1864 and put in Jackson’s mouth. (Jackson died in 1845.) The story of Eisenhower and Warren is equally bogus.

See Herbert Brownell and John P. Burke, Advising Ike: The Memoirs of Attorney General Herbert Brownell 173 (Lawrence: University Press of Kansas, 1993); Jean Edward Smith, John Marshall: Definer of a Nation 518 (New York: Henry Holt, 1996); Horace Greeley, 1 The American Conflict: A History of the Great Rebellion in the United States of America, 1860–64 106 (Hartford, Conn.: O. D. Case, 1864).

^j Curiously, Warren’s early support for the internment of Japanese Americans on the Pacific Coast led southern senators such as Walter George and Richard Russell of Georgia to vigorously support his nomination for chief justice, assuming that Warren would naturally support racial segregation. As for the evacuation, Warren later confessed that he had been wrong in 1942. “I have since deeply regretted the removal order and my own testimony advocating it, because it was not in keeping with our American concept of freedom and the rights of citizens. Whenever I thought of the innocent little children who were torn from their home, school, friends, and congenial surroundings, I was conscious-stricken.” The Memoirs of Earl Warren 149 (Garden City, N.Y.: Doubleday, 1977).

^k Warren served as deputy district attorney of Alameda County, California, from 1920 to 1925; as district attorney from 1925 to 1939; and as attorney general of California from 1939 to 1943.

TWENTY-ONE

First Off the Tee