When Barack Obama was elected in 2008, much was made in the press of the perception that this event reflected voters’ fatigue with foreign entanglements and a turning inward to domestic issues. While there is truth to that, events are not controlled by voters’ sentiments and have a way of upsetting comfortable delusions. It might be said, with apology to Leon Trotsky, “You may not be interested in international conflict, but international conflict is interested in you.” Thus, by 2012, Russia rising, Iraq fracturing, Syria boiling, China blustering once again placed foreign relations on the political radar. Still, Mitt Romney’s warnings about, for example, Russia as the preeminent geopolitical threat, fell on insufficient numbers of listening voters’ ears, and Barack Obama was re-elected.
The Treaty Making Power of the Executive
For the Independent Journal
Author: Alexander Hamilton
To the People of the State of New York:
THE President is to have power, “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.”
Though this provision has been assailed, on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. One ground of objection is the trite topic of the intermixture of powers; some contending that the President ought alone to possess the power of making treaties; others, that it ought to have been exclusively deposited in the Senate. Another source of objection is derived from the small number of persons by whom a treaty may be made. Of those who espouse this objection, a part are of opinion that the House of Representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two thirds of ALL the members of the Senate, to two thirds of the members PRESENT. As I flatter myself the observations made in a preceding number upon this part of the plan must have sufficed to place it, to a discerning eye, in a very favorable light, I shall here content myself with offering only some supplementary remarks, principally with a view to the objections which have been just stated.
With regard to the intermixture of powers, I shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the Executive with the Senate, in the article of treaties, is no infringement of that rule. I venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the 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. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.
However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years’ duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.
To have intrusted the power of making treaties to the Senate alone, would have been to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations. It is true that the Senate would, in that case, have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former. Besides this, the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy. While the Union would, from this cause, lose a considerable advantage in the management of its external concerns, the people would lose the additional security which would result from the co-operation of the Executive. Though it would be imprudent to confide in him solely so important a trust, yet it cannot be doubted that his participation would materially add to the safety of the society. It must indeed be clear to a demonstration that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the separate possession of it by either of them. And whoever has maturely weighed the circumstances which must concur in the appointment of a President, will be satisfied that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity.
The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. 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 despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project.
The only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members PRESENT. It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. This consideration seems sufficient to determine our opinion, that the convention have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community. If two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position might be adduced from the examples of the Roman Tribuneship, the Polish Diet, and the States-General of the Netherlands, did not an example at home render foreign precedents unnecessary.
To require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better then merely to require a proportion of the attending members. The former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. The latter, by making the capacity of the body to depend on a PROPORTION which may be varied by the absence or presence of a single member, has the contrary effect. And as, by promoting punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. It ought not to be forgotten that, under the existing Confederation, two members MAY, and usually DO, represent a State; whence it happens that Congress, who now are solely invested with ALL THE POWERS of the Union, rarely consist of a greater number of persons than would compose the intended Senate. If we add to this, that as the members vote by States, and that where there is only a single member present from a State, his vote is lost, it will justify a supposition that the active voices in the Senate, where the members are to vote individually, would rarely fall short in number of the active voices in the existing Congress. When, in addition to these considerations, we take into view the co-operation of the President, we shall not hesitate to infer that the people of America would have greater security against an improper use of the power of making treaties, under the new Constitution, than they now enjoy under the Confederation. And when we proceed still one step further, and look forward to the probable augmentation of the Senate, by the erection of new States, we shall not only perceive ample ground of confidence in the sufficiency of the members to whose agency that power will be intrusted, but we shall probably be led to conclude that a body more numerous than the Senate would be likely to become, would be very little fit for the proper discharge of the trust.
Federalist No. 69 & Federalist No. 70 – Cathy GillespieFederalist Paper 69, Federalist Paper 70, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 68, Federalist No. 69, Federalist No. 69, Federalist No. 70, Federalist No. 70, Federalist No. 71, Federalist No. 72, Federalist No. 73, Federalist No. 74, Federalist No. 75, Federalist No. 76, Federalist No. 77
Greetings from Long Beach Island New Jersey! What fun I’ve been having reading the Federalist Papers on the beach! And what interesting looks I get from passersby who take the time to glance at the cover of my book.
Federalist Papers 68-77 are especially interesting to me personally, as I have been fascinated by the Presidency for as long as I can remember. My first “political” experience was writing to President Nixon when I was in grade school, telling him I was praying for him during his struggles. In Junior high, I begged my father to take me to SMU, in Dallas near where I grew up, to stand in a rope line in order to catch a glimpse of President Gerald Ford. I voted for the first time in 1980, proudly casting my ballot for Ronald Reagan. My first college course in political science at Texas A&M was taught by an expert in the Presidency, and although regretfully I can’t remember his name, I loved the course so much, I switched my major from business to political science that semester!
During the last decade, I got an even closer look at the Presidency through my husband’s work with President George W. Bush, and opportunities our family had to interact with him. I had always admired President Bush’s steady leadership, and his unwavering commitment to certain values and principles, most notably keeping America safe. But getting to know him personally, I admired the way he carried the office of the Presidency. When you are President, you are always President, whether relaxing in a small group or at public events. President Bush respected the office, and lived every day in a way that could make our country proud.
Thank you to Professor Joerg Knipprath for your enlightening and thorough essays on Federalist Papers No. 69 (The Real Character of the Executive ) and 70 (The Executive Department Further Considered ). The historical background you provide gives a useful prism from which to view these two papers that explore the President’s powers versus those of the British Monarch and the New York Governor, and the decision of the founders to have a unified executive, versus two or more heading that branch.
In Federalist No. 69 Publius makes a convincing argument that the United States Presidency, while powerful enough to head the country, is not as powerful as the King, or even the New York Governor (with the exception of the power to make treaties). This is a fascinating comparison, and reveals the founders’ thought process on why the Presidency of our country is vested with certain powers and limited in others.
Some of the President’s powers originally outlined by the founders have waned, while others have increased. The President’s term in office still remains at four years, but is now limited to two terms by the twenty-second Amendment.
The President’s power to
“nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution,”
has been expanded over the years by the President’s ability to create “Czar” positions. These “Czar” positions sound eerily similar to the power Publius ascribes to the King, and denies the President having:
”The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices.”
Time Magazine provides an interesting history of “Czars” in the United States at this link: http://www.time.com/time/politics/article/0,8599,1925564,00.html
Time states the first Czar existed in President Woodrow Wilson’s cabinet during World War I, when Wilson appointed Bernard Baruch to head the War Industries board, and was known as the Industry Czar. This must have been the proverbial camel’s nose under the tent, as the use of “Czars” has mushroomed from that point forward.
In Federalist No. 70, Publius defends the decision of the founders to have a single executive in the office of the Presidency head the executive branch, versus two or more individuals. The benefits of a unified executive make an extraordinary amount of sense, especially in protecting the people’s liberty through transparency, and accountability. As difficult as it was to pinpoint blame in Watergate, for example, imagine how much more difficult it might have been had there been two Chief Executives. Professor Knipprath quotes Harry Truman’s famous line, “the buck stops here,” and that indeed is one of the most important attributes of the United States Presidency.
The founders’ grasp of history, as they detail the failures of past plural executives, such as the Achaens, or the dissensions between the Consuls and the military Tribunes in Roman history once again illuminates their arguments. And their grasp of human nature is equally as profound –
“Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity.”
“Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. But if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character.”
Our United States Presidency is a unique institution, crafted thoughtfully and skillfully by our founding fathers!
On to Federalist #71!
Good night and God Bless,
Tuesday, August 3rd, 2010
Federalist No. 69Federalist Paper 69, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Article II, Federalist No. 69, Federalist No. 73, Federalist No. 74, Federalist No. 75, Federalist No. 76, Federalist No. 77, Joerg W. Knipprath
In Federalist 69, Hamilton responds to the charge by the Constitution’s opponents that the president is an American king. He compares the powers of the “president of confederated America” (interesting phrasing) under the Constitution with those of the king of Great Britain and the governor of New York. He chooses the latter for several reasons. First, the essays of Publius are written during the pendency of the New York and Virginia ratifying conventions and were obviously intended in the first instance to influence those closely-fought skirmishes.
Second, Hamilton was deeply involved in state politics as a member of the downstate faction that favored both the Constitution and, later, the Federalist Party. Though it is hard to believe today, New York City politically was, in many ways, a Tory town. It was a hotbed of Loyalist sentiment during the Revolutionary War, so much so that the British made it their headquarters. Hamilton was intimately familiar with the operation of his state’s government and, given the emerging significance of the city and state, would find New York’s system more important than others’.
Third, the governor of New York was a rather strong chief executive compared to the state governors at the time. Comparing the president’s powers favorably to those of a republican American state executive would resonate particularly well with the persuadable delegates by avoiding charges that comparing the prerogatives of the president to those of the British monarch was irrelevant to the cause, as no American king was to be crowned.
But there is one more reason. The governor of New York, George Clinton, was the presiding officer at the convention and a staunch Antifederalist. He was also a member of the upstate Albany faction politically opposed to Hamilton. Clinton is the likely author of potent attacks on the Constitution in “Letters of Cato.” Many historians believe that it was the publication of some of those letters that induced the Constitution’s supporters to organize the effort that became The Federalist. The executive was one of Cato’s particular concerns. In an essay published four months before Federalist 69, Cato labeled the president the “generalissimo of the nation,” assailed the scope of the president’s powers, compared those powers alarmingly with those of the king of Great Britain (especially the war power), and warned, “You must, however, my countrymen, beware that the advocates of this new system do not deceive you by a fallacious resemblance between it and your own state government [New York]….If you examine, you…will be convinced that this government is no more like a true picture of your own than an Angel of Darkness resembles an Angel of Light.” Hamilton had no choice but to respond.
The result is a brief comparative overview, the particulars of which do not matter much today, as the king’s prerogatives, already circumscribed then, are virtually non-existent now. The essay does provide an introduction to various powers of the president, most of which are in Article II of the Constitution. Hamilton will delve into greater detail of various of them over the course of Federalist 73 to 77.
The Framers saw Congress as the most dangerous branch, and the one most likely to encroach on the domain of the others. While there were dangers in an independent and powerful executive, the lessons from the Revolutionary War and life under the Articles showed the need for just such an officer. The turbulence of state governments with weak and dependent executives only proved the point. Most agreed that a strong, independent executive was needed. But, how strong?
What is significant for us is the dog that does not bark, the constitutional clauses that are not mentioned by Publius. Not long after the Constitution was approved, Hamilton used the occasion of Washington’s Neutrality Proclamation in 1793 to advance a broad theory of implied executive powers. His position, vigorously challenged by Madison during the Pacificus-Helvidius debates, was that the president has all powers that are not denied to him under the Constitution either expressly or by unambiguous grant to another branch. That approach has been used by subsequent presidents to fuel the expansion of executive power.
Article II is rather short, and the president’s powers few and specific. Beyond that, the boundaries are vague. It was broadly understood that George Washington would be the first president. The general recognition of his propriety and incorruptibility meant that he would have discretion to define the boundaries of the office. Indeed, Washington was expected to do so, and he was well aware of that responsibility. In addition to the oath of office, there are three clauses whose text suggests room for discretion. Those three, the executive power clause, the commander-in-chief clause, and the clause that the president “shall take Care that the Laws be faithfully executed,” have proved to be generous reservoirs of necessary implied executive powers.
Publius spends little time on the commander-in-chief clause, and essentially none on the others. He portrays the role of the president as if he would be confined to leading the troops in military engagements. While Washington, with Hamilton as his aide, actually dressed in military regalia and mounted up to lead troops during the Whiskey Rebellion, they soon delegated that project to General “Light Horse Harry” Lee. That is the least likely role of the president today. Indeed, even during the ratification debates, that was a questionable view not usually advocated, as it frightened republicans by blurring the line between civilian control and military command and was thought likely to lead to the election of “military chieftains.”
The executive power clause is the principal source for the president’s implied or inherent powers, those that the president’s detractors would disparagingly call royal or prerogative powers. The textual significance is that, while Article I says that, “All legislative powers herein granted shall be vested in a Congress …,” Article II declares that, “The executive power shall be vested in a President …”[italics added]. That affirmative grant to the president has to mean something, and –unlike Article I regarding Congress–it has to mean more than the powers mentioned later in the text. The question ever since has been, “Just what does it mean?” Presidents have massaged that ambiguity and the flexibility of the other elastic clauses mentioned to act unilaterally, as necessity demands, usually in military affairs, foreign relations, and national security matters. Executive unilateralism came under particular scrutiny by Congress, the courts, the academy, and the media during the Bush(43) administration, though interest in that topic has slackened since the election of 2008–perhaps not coincidentally.
Not surprisingly, as advocate for the Constitution’s adoption, Hamilton does not spend time defending, or even recognizing, the theory of implied executive powers that he embraced soon thereafter. The enumeration of specific limited presidential powers and Hamilton’s soothing interpretations in Federalist 69 do not give due credit to the possible sweep of the executive office. His next essay presents a more forthright defense of the need for an energetic executive.
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums. His website is http://www.tokenconservative.com
Howdy from the Constituting America RV! We are on the road from California to Arizona!! We filmed Jacob Wood and he is a truly special young man. Check out his music on our site and our behind the scene footage and photos.
I am determined to catch up on the Federalist Papers as I have yet to fall behind until I was in pre-production for our Cross Country RV Road Trip!!
Alexander Hamilton and our Constitutional forefathers had such a remarkable insight into the human psyche and even better, a realization as to how important a role it played into the art of politics. Inalienable rights, they taught us, are given by God, not government and the powers of government are being delegated to men, who are not angels. They understood the fallibilities and temptations of men and these weaknesses were the driving force in their insistence on separation of powers.
Hence, the Constitutional designations regarding the negotiating of treaties.
Alexander Hamilton states in Federalist Paper No. 75,
“But that a man raised from the station of private citizen, to the rank of chief magistrate, possessed of but a moderate or slender fortune, and looking forward to a period not very remote, when he may probably be obliged to return the station from which he was taken, might sometimes be under temptations to sacrifice duty to interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state for the acquisition of wealth.”
Checks and balances. Temptations never die, whatever the age. We fool ourselves if we think our representatives are immune to them. Human nature is eternally flawed and even though we are not under the rule of a monarchy our Republic is still, and always will be at risk.
Alexander Hamilton states it best,
“The history of human conduct does not warrant the exalted opinion of human virtue, which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would the president of the United States”
Sunday, August 15th, 2010
Federalist No. 75 – The Treaty Making Power of the Executive, For the Independent Journal (Hamilton)Federalist Paper 75, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Nathaniel Stewart 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article II Section 2, Federalist No. 75, Nathaniel Stewart
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