Guest Essayist: Nathaniel Stewart, attorney in Washington, D.C.

Before ever penning his share of The Federalist Papers, before championing the Constitution for a new nation, before laying the foundations of American fiscal policy, Alexander Hamilton was a vocal and “passionate critic” of the practice of slavery.[1]

In March 1779, in the throes of the American War for Independence, Hamilton wrote to his friend and fellow New Yorker, John Jay, to endorse an effort proposed by Colonel John Laurens of South Carolina to recruit and employ black slaves in the Continental Army.  Jay was sympathetic to Hamilton’s abolitionism,
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Guest Essayist: Nathaniel Stewart, Attorney

Proposed Amendment: D.C. Statehood Amendment:

District of Columbia Statehood Proposal:


Section 1. For purposes of representation in the Congress, election of the President and Vice President, and article V of this Constitution, the District constituting the seat of government of the United States shall be treated as though it were a State.


Section 2. The exercise of the rights and powers conferred under this article shall be by the people of the District constituting the seat of government, and as shall be provided by the Congress.


Section 3. The twenty-third article of amendment to the Constitution of the United States is hereby repealed.


Section 4. This article shall be inoperative, unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

The nation’s capital city, Washington, DC, is a federal city, and it constitutes “the seat of Government of the United States.”[1] After great debate and deliberation over the location for the nation’s capital, the Founding generation settled upon a compromise in 1791.  Congress first raised the subject of a permanent capital for the government of the United States in 1783, and it was ultimately addressed in Article I, Section 8 of the Constitution (1787), which gave the Congress legislative authority over “such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States. …”  In 1788, Maryland gave to Congress “any district in this State, not exceeding ten miles square,” and in 1789 the state of Virginia ceded an equivalent amount of land.  In accordance with the “Residence Act” passed by Congress in 1790, President Washington in 1791 personally selected the diamond-shaped area along the shores of the Potomac River that is now the District of Columbia.

The Founders well-understood that the District of Columbia was under the control and jurisdiction of Congress itself, and the city was not itself a state, nor did it sit within the boundaries of any existing state.  This helped to ensure the federal government’s independence from state politics or inter-state quarrels that might develop and hinder federal action.  As a federal district, however, the capital did not have an elected local governor, nor did city residents have the right vote in national elections.

Nearly 200 years later, in 1961, the 23rd Amendment to the Constitution granted District residents the right to vote in Presidential elections, and it gave the District the number of electors in the electoral-college that it would have if it were a state.  The amendment did go so far as to provide the District with its own Senators or members of Congress, but the District has since gained a non-voting delegate in the House of Representatives.

A decade later, the left-wing political activist Julius Hobson formed the D.C. Statehood Green Party, which began campaigning for statehood for the District.  The movement for statehood, helped by Democratic Senator Ted Kennedy, was instrumental in Congress passing the District of Columbia Home Rule Act in 1973, granting the city an elected mayor and city council.

The movement pressed on, seeking full statehood for the District, and in 1978 Congress passed the District of Columbia Voting Rights Amendment.  The amendment was then sent it to the states for ratification.  The new amendment would have repealed the 23rd Amendment and given the District four electors (instead of three), as well as voting members in the Senate and House of Representatives.  The proposed amendment met with stiff opposition from the states who feared that granting the District voting members in Congress would dilute their own representation.  According to its terms, the proposed amendment would be “inoperative” if it was not ratified within seven years of the date it was submitted for ratification.  The deadline for ratification was August 22, 1985, and only sixteen of the fifty states had ratified the proposal before the time limit had expired, well-short of the thirty-eight needed for ratification.

In 1980, DC residents passed the District of Columbia Statehood Constitutional Convention of 1979, calling for a constitutional convention for a new state. Two years later, voters ratified the constitution for “New Columbia,” the proposed 51st state in the Union, but the campaign for statehood stalled after the proposed DC Voting Rights Amendment failed in 1985.  Since then, statehood advocates have periodically proposed legislation to enact the “New Columbia” state constitution, but it has never been passed by Congress, and the last serious congressional debate on the issue took place in November 1993, when D.C. a statehood proposal was defeated in the House of Representatives by a vote of 277 to 153.  Much of the momentum has since dissipated from the statehood campaign, and it is unlikely to be revisited by Congress or ratified by the several states anytime soon.

[1] U.S. Const. Amendment 23.

Nathaniel Stewart is an attorney in Washington, D.C.

June 21, 2012 

Essay #89 

Guest Essayist: Nathaniel Stewart, Attorney

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Early Origins of the 8th Amendment’s

“Cruel and Unusual Punishments” Clause

Like many provisions of the Constitution and the Bill of Rights, the protection against “cruel and unusual punishments” prescribed in the 8th Amendment has deep English roots.  The text of the 8th Amendment is taken almost verbatim from England’s Declaration of Rights of 1689, an indictment of King James II that reads rather like our own Declaration of Independence and accuses the king and his government of mistreating the people and subverting the law.

Historians generally agree that the “cruel and unusual punishments” clause of the English Declaration of Rights was in response to abuses by the infamous Lord Chief Justice Jeffreys of the King’s Bench during James II’s reign.  Lord Chief Justice Jeffreys presided over the “Bloody Assizes”—a special commission that tried, convicted, and executed hundreds of suspected rebels following the failed rebellion in 1685.  The Bloody Assizes carried out punishments that included drawing and quartering, burning, beheading, and disemboweling those convicted.  But these punishments, as vicious as they might sound to us today, were specifically authorized by law at the time.  More recent scholarship suggests that it was not the nature of the punishments that led to the Declaration of Rights provision, but the arbitrary sentencing power that Jeffreys had used in sentencing those found guilty.  Many believed that Jeffreys was merely inventing special penalties for enemies of the king, and that those penalties and punishments were not authorized by the common law or by statute.

Thus, the Declaration of Rights objects to the “illegal and cruel punishments inflicted . . . All which are utterly and directly contrary to the known laws and statutes and freedom of this realm.”  1 Wm. & Mary, Sess. 2, ch. 2 (1689).  Legal discussions at the time of the Declaration of Rights indicated that a punishment was not considered wrong only because it was severe or even disproportionate to the crime; but a punishment was “cruel and unusual” if it was “out of the Judges’ power,” “contrary to the law and ancient practice,” “without precedent,” “illegal,” or imposed by “pretence to a discretionary power.”  The phrase “cruel and unusual” was often synonymous with “cruel and illegal.”

By the time of America’s founding many of the colonies had constitutions with provisions very similar to the “cruel and unusual punishments” clause of England’s Declaration of Rights.  In 1791, five States prohibited “cruel or unusual punishments, and two more States prohibited “cruel” punishments.  The U.S. Constitution’s Bill of Rights ultimately followed Virginia’s prohibition of “cruel and unusual punishments.”

Because there were no federal common-law punishments, the clause effectively served as a check upon the Congress, not upon federal judges, so there is some question as whether “unusual punishment” continued to mean a punishment “contrary to law” as it had meant under English law.  Instead, “unusual punishment” came to mean one that “does not occur in ordinary practice.”  Webster’s American Dictionary (1828).  It is widely believed that by forbidding “cruel and unusual punishments,” the 8th Amendment prevents Congress from authorizing particular kinds or modes of punishment, especially cruel methods of punishment that are not regularly or customarily used.

The debates in the state ratifying conventions support the idea that the “cruel and unusual punishments” clause was designed to prohibit certain forms of punishment.  In the Massachusetts Convention in 1788, for example, one objection to the Constitution (without a Bill of Rights) was that Congress was “nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on it, but that racks and gibbets may be amongst the most mild instruments of discipline.”  2 J. Elliot, Debates on the Federal Constitution 111 (2d ed. 1854).  A Bill of Rights was needed, they argued, in order to prevent Congress from “inventing” such punishments and resorting to vicious types of discipline.

Early commentaries on the Amendment also indicate that it was designed to outlaw certain types of punishment:  “The prohibition of cruel and unusual punishments, marks the improved spirit of the age, which would not tolerate the use of the rack or the stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion.”  J. Bayard, A Brief Exposition of the Constitution of the United States 154 (1840).  And, as Justice Story observed in his Commentaries on the Constitution, the 8th Amendment was “adopted as an admonition to all departments of the national government, to warn them against such violent proceedings, as had taken place in England in the arbitrary reigns of some of the Stuarts.”  3 J. Story, Commentaries of on the Constitution of the United States § 1896 (1833).

As the history and origins of the 8th Amendment make clear, criminal punishments should not be arbitrary or exacted by judges contrary to the law; and neither should they be “unusual” or torturous methods of discipline that are beyond the ordinary forms of reproach.  The 8th Amendment helps to protect against such punishments, and is yet another example of the Founders drawing upon their understanding of the rights of Englishmen, adapting the rights and laws of England to their own circumstance and government, and learning the lessons of history so as not to repeat the same mistakes.

Nathaniel Stewart is an attorney in Washington, D.C.

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April 6, 2012

Essay # 35

Guest Essayist: Nathaniel Stewart, Attorney

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.


Sixth Amendment Overview

The Sixth Amendment is the centerpiece of constitutional criminal procedure.  It forms the framework, the underlying first principles governing the process by which our society will try and treat those accused of a crime.  As the English legal philosopher, William Blackstone, famously quipped, “better that ten guilty persons escape than that one innocent suffer,” expressing the ancient axiom—dating even to Genesis—that the law should be made to punish the guilty, but not the innocent.[1]

The Sixth Amendment sets out the legal strictures and protections designed to protect society from its criminals, and protect the innocent from society.  To secure these protections, the Amendment prescribes three sets of rights: (1) the right to a speedy trial; (2) the right to a public trial; and (3) the right to a fair trial.

The Founding-generation was well aware that a speedy trial was a fundamental right of Englishmen.  It was approved by the First Congress without discussion.  The right to a speedy trial protects several related liberty interests, namely, the individual’s interests in avoiding a prolonged pretrial detention and in minimizing reputational damage due to an unjust or false accusation.  It protects the innocent from suffering a de facto punishment—a lengthy pre-trial detention—before ever having the chance to defend himself.  Furthermore, ensuring a speedy trial also helps to facilitate a fair trial—one designed to discover the truth of the matter, not just a verdict—since a prolonged delay may harm the accused’s legal defense as memories fade, evidence is lost or destroyed, or witnesses die or move away.  The Founders made sure that the government could not merely charge the accused with a crime, infringe upon his liberties, damage his public reputation, and then fail to give him a legal forum for mounting a defense and clearing himself of the allegations.  A defense must be afforded quickly, for as another old saying goes, “justice delayed is justice denied.”[2]

The right to a public trial is “a trial of, by, and before the people.”[3] As one legal scholar succinctly put it, a trial should be “a public thing, the people’s thing,” and included in the right to a public trial are “the rights to (a) a trial held in public, (b) featuring an impartial jury of the people, (c) who come from the community where the crime occurred.”[4] The Founders would not sanction secret criminal proceedings, and there was a deep Anglo-American tradition that trials be open and public spectacles.  The Supreme Court acknowledged as much when it wrote: “by immemorial usage, wherever the common law prevails, all trials are in open court, to which spectators are admitted.”[5] Public trials serve a number of purposes in a number of ways, chief among them an added protection for the innocent.  As Professor Amar has noted, “Witnesses for the prosecution may be less willing to lie or shade the truth with the public looking on; and bystanders with knowledge of the underlying events can bring missing information to the attention of the court and counsel.  A defendant will be convicted only if the people of the community (via the jury) believe the criminal accusation—believe both that he did the acts he is accused of, and that these acts are indeed criminal and worthy of the community’s moral condemnation.”[6]

Finally, the Sixth Amendment’s protections provide the accused with a fair trial, affording him protections against an erroneous guilty verdict.  We see this expressed in the constitutional right to an attorney—that is, the right to defense counsel—and “to be informed of the nature and cause of the accusation,” as well as the right “to be confronted with the witnesses against him,” and the right to obtain “witnesses in his favor.” The process for trying the accused is to be fair and impartial.  If the government can martial its lawyers to prosecute, the accused must be entitled to the same.  If the government can prepare its case for accusation, the accused must know of the charges.  If the government can bring forth witnesses to testify against the defendant, the defendant must be allowed to confront them in open court and before a jury of his peers, and he is entitled to call witnesses on his own behalf.  These procedural protections, too, are part and parcel of a Constitution constructed with deliberate checks and balances designed to preserve both liberty and order in a free society.

The constitutional right to a speedy, public, and fair trial at least helps to ensure—though it cannot guarantee—a just result, and it encourages the public’s continued confidence in a criminal justice system whereby all men are presumed innocent until proven guilty.

Nathaniel Stewart is an attorney in Washington, D.C.

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March 30, 2012

Essay #30

[1] See, Genesis 18:23-32: “Abraham drew near, and said, ‘Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it?[3] … What if ten are found there?’ He [The Lord] said, ‘I will not destroy it for the ten’s sake.’”

[2] Often attributed to William Gladstone.

[3] Akhil Reed Amar, “Forward: Sixth Amendment First Principles,” 84 Georgetown L. J. 64 (1996).

[4] Id.

[5] In re Oliver, 333 U.S. 257 (1948).

[6] Akhil Reed Amar, “Forward: Sixth Amendment First Principles,” 84 Georgetown L. J. 64 (1996).


Guest Essayist: Nathaniel Stewart, Attorney

Article VI

1: All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

2: 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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.


Article VI concerns the debts of the United States, the supremacy of the Constitution and federal law, and the sworn obligation of office holders to uphold the Constitution.

America’s War for Independence was an expensive war – and most of it had been financed.  Tens of millions of dollars had been borrowed from foreign governments and wealthy financiers – some of them even English – who were understandably concerned that their debtors might try to use the country’s new-found independence to avoid repaying their loans.  Indeed, the 1783 Treaty of Paris, which brokered the peace between Britain and the United States, expressly provided that lawfully-contracted debts were to be paid to creditors on either side.

This concern resurfaced as the fledgling country traded in the relatively weak Articles of Confederation for a more authoritative Constitution.  Article VI, clause one, of the new document reassured unpaid creditors that “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” The ratification of the new Constitution then could not be used to shirk paying those who were rightfully owed under the old system.  It was well understood at the time that good credit must be established and maintained if the country would have any hope of survival or longevity.

The second clause, commonly known as the “Supremacy Clause,” makes clear that the Constitution is the binding legal authority on which the country was founded:  “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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This may seem axiomatic to us today, but the issue was far from settled and “the source of much virulent invective and petulant declamation against the proposed Constitution,” (Federalist No. 33) for it was widely feared that the formation of the federal government would intrude upon the rights and liberties enjoyed by the states and the people.

Richard Henry Lee, a prominent anti-federalist, expressed this fear in the alliterative “Federal Farmer IV” when he warned, “It is to be observed that when the people shall adopt the proposed constitution it will be their last and supreme act; it will be adopted not by the people of New Hampshire, Massachusetts, &c., but by the people of the United States; and wherever this constitution, or any part of it, shall be incompatible with the ancient customs, rights, the laws or the constitutions heretofore established in the United States, it will entirely abolish them and do them away: And not only this, but the laws of the United States which shall be made in pursuance of the federal constitution will be also supreme laws, and wherever they shall be incompatible with those customs, rights, laws or constitutions heretofore established, they will also entirely abolish them and do them away.”

Both Alexander Hamilton and James Madison took up the debate and defended the clause.  Hamilton first explained, “If individuals enter into a state of society the laws of that society must be the supreme regulator of their conduct.  If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted [sic] to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed.  It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for Political Power And Supremacy”  (Federalist No. 33).  But Hamilton, perhaps attempting to assuage the fears of men like Richard Henry Lee, insisted that the “acts of the larger society which are not pursuant to its constitutional powers” must then be held “invasions of the residuary authorities of the smaller societies” and will not become the supreme law of the land.  “These,” Hamilton argued, “will be merely acts of usurpation, and will deserve to be treated as such.”  Thus, although a supreme law was required for any proper government to function, the federal government would be limited in its scope to those laws pursuant to the Constitution.

James Madison’s Federalist No. 44 echoed Hamilton’s argument and contended that any Constitution without a Supremacy Clause “would have been evidently and radically defective.”  Madison warned in Federalist No. 44 that, were the state constitutions to exert supremacy over the federal Constitution, “the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.”

It didn’t take long for the question of legal supremacy to find its way to the Supreme Court.  Coincidentally, both the Supremacy Clause and the issue of pre-Treaty debt were taken up in the same case in 1796.  In 1779, during the War for Independence, Virginia had passed a law whereby all property within the state belonging to any British subject or which did belong to any British subject at the time of forfeiture was deemed to be the property of Virginia.  Not only did the statute confiscate British-owned property, it arguably nullified private debts owed by Virginians to British subjects.  In Ware v. Hylton, a British creditor sued an American debtor to recoup the money owed under a pre-war bond.  Virginia’s statute seemed to prevent the creditor from collecting his debt, and the Court was asked to decide: did Virginia’s law or the Treaty of Paris control the collection of the debt?

Making his only appearance as a lawyer before the Supreme Court, John Marshall argued brilliantly on behalf of the American debtor.  Justice Iredell, in the controlling opinion of the Court, ruled against the future Chief Justice:  “Under this constitution, therefore, so far as a treaty constitutionally is binding, upon principles of moral obligation, it is also, by the vigor of its own authority, to be executed in fact. It would not otherwise be the supreme law, in the new sense provided for, and it was so before, in a moral sense.”  The Treaty of Paris thus superseded Virginia’s contrary law, and the Court declined to give effect to the state statute.

Later, Chief Justice Marshall would pen the landmark decision in McCulloch v. Maryland (1819), ruling that Maryland’s tax on the Second Bank of the United States ran afoul of the Constitution.  Nullifying the state’s tax on the federal government, Marshall observed:  “If any one proposition could command the universal assent of mankind, we might expect it would be this— that the government of the Union, though limited in its power, is supreme within its sphere of action.”

A barrage of new federal laws from Capitol Hill and a long line of Supremacy Clause cases marched across the legal landscape in the twentieth century, leaving a blotted trail of nullified state statutes.  Today, “A state statute is void to the extent that it actually conflicts with a valid Federal statute,” (Edgar v. Mite Corporation (1982)), and such a conflict exists wherever compliance with both federal and state law is impossible; or where the state law stands as an obstacle to accomplishing the full purposes and objectives of Congress.

Thus, for example, the Supreme Court held in Raich v. Gonzales (2005) that California’s law permitting doctor-prescribed medical marijuana would frustrate Congress’s efforts to regulate the interstate marijuana market under the federal Controlled Substances Act.  And, as Justice Stevens’ majority opinion casually reminds us, “The Supremacy Clause unambiguously proves that if there is any conflict between federal and state law, federal law shall prevail,” because, as the Court had previously opined, “‘no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress.’” (quoting Wickard v. Filburn (1942)).  We might now wonder whether – in the Court’s view – there remain any regulatory “acts of the larger society which are not “pursuant to its constitutional powers” or which might still invade “the residuary authorities of the smaller societies.”

The third clause of Article VI establishes two important and related principles.  First, its “Oath Clause” requires that “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution . . . .” Once again, the Constitution is supreme, and a conscious effort was made for it to be supported and upheld not only by federal officers and judges, but by state officials as well.  As Hamilton explained in Federalist No. 27, the “Oath Clause” would help ensure that “the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and it will be rendered auxiliary to the enforcement of its laws.”

Second, the “No Religious Test” clause guarantees that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” In the founding era, much of Europe and many of the new American states used religious tests to protect their preferred churches and religions.  In England, the Test Act of 1672 required all public officers to swear a conspicuously anti-Catholic oath declaring disbelief in “any transubstantiation in the sacrament of the Lord’s Supper.”  In 1789, Delaware, Maryland, Massachusetts, North Carolina, and Pennsylvania all had constitutions requiring that their public officials to swear belief in tenets of Christianity.  The “No Religious Test” clause prevented such requirements for holding federal office, but left any such qualifications for state officers untouched.

Perhaps surprising to us today, this clause received a fair amount of debate and resistance from anti-federalists during ratification.  In Massachusetts, for example, one “principal objection” to the Constitution was its lack of a religious test – “rulers ought to believe in God or Christ,” it was argued.  Federalist Oliver Ellsworth defended the constitutional ban on religious tests, believing them to be “utterly ineffectual,” and arguing that “If we mean to have those appointed to public offices, who are sincere friends to religion, we, the people who appoint them, must take care to choose such characters; and not rely upon such cob-web barriers as test-laws are.”  Ellsworth’s view won out, of course – although it remains a rather open question whether we, the people who appoint our public officers, have taken much care to choose those predicted “sincere friends to religion.”

Nathaniel Stewart is an attorney in Washington, D.C.

Guest Essayist: Nathaniel Stewart, attorney and fellow at the Ashbrook Center for Public Affairs

In Federalist #75, Alexander Hamilton explains and defends the power of the President to make treaties with foreign nations “by and with the Advice and Consent of the Senate.”  The treaty-making power granted in Article II section 2 involves, as Hamilton observes, another example of an “intermixture of powers,” a power shared by the President and the smaller house of Congress.

Hamilton acknowledges four arguments levied against this particular arrangement and addresses them each in turn.  First, there are those who would vest the power in the President alone.  Second, there are some who called for the power to reside only in the Senate.  Still others called for the House of Representatives to hold a share of the treaty power.  And finally, having answered these objections, Hamilton explains why treaties may be approved by only “two-thirds of the Senators present,” rather than two-thirds of the whole body.

Hamilton begins with the initial explanation that the power to make treaties does not readily fit within either the legislative or administrative functions of government.  Here, Hamilton reminds his audience of the precise functions of these two branches of government, and distills them neatly:  “The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of society; while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate.”

But the power to negotiate a treaty, Hamilton argues, does not involve enacting a new law or enforcing an old one.  Treaties are not laws, they are contracts.  They enjoy “the force of law” derived from “the obligation of good faith,” but they are not laws as between a sovereign and its subject, or rules which must be obeyed.  Rather, a treaty is a contract between two sovereigns, and thus, the treaty-making power is a distinct and peculiar function, neither purely legislative nor wholly administrative.  This provides the foundation for Hamilton’s contention that the treaty power be shared between the branches, rather than vested in only one.

Turning then to the contention that the President alone should wield this power, Hamilton repeats the common refrain that history proves power to be all too tempting for men to resist.  The hereditary monarch, he notes, has too much at stake – given the length of his lifelong reign – to risk being corrupted by a foreign nation.  But such is not the case with a man elected for a mere four years; a man who may have risen to the rank of President from a more modest station, and for whom a foreign allegiance might then prove quite valuable when his term of office has expired.  To entrust this great authority in such an elected official would be “utterly unsafe and improper,” lest he be “tempted to betray the interests of the state to the acquisition of wealth.”

But this does not mean that the power should rest with only the Senate, for this would deprive the President of too much authority in foreign relations and negotiations.  The President is to enjoy “the confidence and respect” of other nations, and the Senate, as a legislative body, is unlikely to command such foreign confidence.  Thus, the country would lose the benefit of the President’s unique position among the nations were he to be excluded from the treaty process.  For Hamilton it is then clear that the “greater prospect of security” for the country lies in the joint sharing of the treaty-making power.

Despite the prudence of this “intermixture” between the Senate and the President, Hamilton resists the call to include the House of Representatives in the treaty power.  Treaties, he argues, require a set of qualities which cannot be expected from such a large and “fluctuating” body of representatives.  Treaties require “accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character, decision, secrecy, and dispatch.”  The design of the House of Representatives is not conducive to these qualities and would only muddy the waters at potentially critical and inopportune moments of decision.  While we might wonder today whether even the Senate possesses the requisite “uniform sensibility” that Hamilton envisioned, one would be hard pressed to quibble with his foresight in resisting the call to extend the treaty-power to the ever-ephemeral House of Representatives.

Finally, the author takes up the challenge that treaties ought to be ratified by two-thirds of the whole Senate, rather than merely “two-thirds of those present.”  Anytime a super-majority, like two-thirds, is required for an approval, the matter is increasingly beholden to the will of a select minority, rather than that of the majority.  Hamilton rightly recognized that the treaty-making power would be no exception.  Requiring two-thirds majority of the entire body to affirm a treaty risked the possibility that a minority of Senators could defeat the measure simply by not appearing to vote on it.  On the other hand, such gamesmanship would be discouraged and unrewarded by allowing the treaty to pass with the support of only a super-majority of those present.

The treaty-making power is a shared power.  Not a legislative function, nor an executive’s role, a treaty represents a bond between two sovereign powers, likely the culmination of a negotiation, a settling of terms.  It is for this reason that Presidents must enjoy enough power to broker the terms of the agreement, while a discrete and noble body of another branch ensures that such power is only invoked in the best interests of the nation and its security.

Tuesday, August 10th, 2010

Nathaniel Stewart is an attorney in Washington, DC, and a fellow at the Ashbrook Center for Public Affairs