Guest Essayist: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Publius now begins his fifth and final topic respecting the Senate: its powers.  In Federalist 64 he considers the power to ratify treaties.

Publius argues that the state legislatures will likely choose outstanding men to represent them in Congress.  Senators will be known to their electors, who will “not be liable to be deceived by those brilliant appearances of genius and patriotism which, like transient meteors, sometimes mislead as well as dazzle” (think “Aaron Burr”).  State legislators will want representation by men they trust who have the intelligence and strength of character to defend and advance the interests of their state in the national government.  One might add that the removal of two such men from the local scene would not bereave the less gifted rivals they leave behind.

Did it work?  The record of the nineteenth century suggests that it did: Adams, Clay, Calhoun, Webster, Benton, Houston, Chase, Seward, Lodge: these men enjoyed more prominence than most of the presidents of their time.  Among the best (if long-forgotten) accounts of the old Senate remains Oliver Dyer’s Great Senators of the United States Forty Years Ago, published in 1889.  One of the first stenographers in America, Dyer worked in the Senate in 1848 and 1849, and his highly readable account of the lions of those days stands as a fine introduction to the nature of political life itself as well as a testament to the kinds of men who once found that life worth choosing.

Such prominence can serve the country in foreign policy. Given the need for secrecy and careful timing in any confidential matter, presidents and their ambassadors negotiate treaties.  The experiment in making Congress responsible for such negotiations had failed to satisfy the Framers.  The Senators will not negotiate treaties; they will ratify them, inasmuch as the results of secret negotiations obviously require public review.  The need for a two-thirds majority for ratification ensures that the treaty will have broad support among the states.

What is more, treaties are laws; still more than that, they are supreme laws of the land.  This had not been so under the Articles, under which the states reserved the power to implement treaties, with predictable results.

The supremacy of treaty law made (and still makes) Americans nervous.  Publius observes that if treaties were “repealable at pleasure,” no foreign country would “make any bargain with us.”  Treaties are contracts between nations not under one another’s sovereignty.  They are harder to enforce than ordinary laws.  Like contracts, they require the consent of both parties to enact but would be worthless if one party were legally entitled to unilaterally rescind them—unless, of course, the contract stipulates the right to do so under specified circumstances.  This does not mean that the United States cannot withdraw from a treaty—break the contract.  But it should do so in the knowledge that its partner in the contract may attempt to enforce the terms of the contract, up to and including the use of military force.  The conditions for the just termination of treaties and their just enforcement were familiar to the founders from the major works of international law then extant—most particularly The Law of Nations by the French Swiss writer Emer de Vattel, from whom Jefferson had drawn several of the phrases in the Declaration of Independence.

Domestically, the supremacy of treaty law meant that both states and individual citizens needed to abide by them. Treaties now overrode state laws.

But do they override existing constitutional law?  This worried the senators who voted against the League of Nations, fearing that membership in the League would impinge upon their power to declare war.  Although one never knows what a modern Supreme Court decision might say, from more or less the beginning the consensus thus far has been “no.”  Because treaties are made under the authority of the United States they cannot (as Alexander Hamilton observed in 1796) “rightfully transcend the constituting act”—change any constitutional law.  If treaty law could amend the Constitution, this would lead to the absurdity of senators amending the Constitution without recourse to ratifying conventions of the states.  The Constitution, federal statutes, and treaties are all supreme laws of the land, but the Constitution is (as it were) more supreme than statutes and treaties.

Publius touches on a remarkable feature of the treaty ratification power: it is held by the body that represents the states.  The most `locally’-centered branch of the national government will hold the most `international’ power.  Although the states may see their laws overridden by treaties, it will be the states’ representatives who consent to doing so.

Publius may imply that the habit of causing the ambassadors from the states to think in terms of treaties that will affect the whole country might serve to build national sentiments.  This it might have done, but the more powerful domestic issue of slavery overcame any such sentiments in the 1850s.  Be this as it may, lodging the treaty ratification power in the Senate solves the problem of the Articles.  It removes the possibility of individual states obstructing a treaty by refusing to implement it, but it allows the states to retain a proximate influence upon treaties by making their representatives responsible for voting treaties up or down.

Monday, July 26th, 2010

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.  His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.


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