Federalist 64
John Jay returned in Federalist 64 to the project of defending the Constitution. Jay is the least well-known of the authors, despite being a prominent figure of the era, including being the first Chief Justice of the Supreme Court. He was a man of broad learning and great intelligence and also one schooled in foreign affairs, having served as ambassador to Spain during the war, as a leader of the delegation that negotiated the Treaty of Paris ending the war, and then as Secretary of Foreign Affairs during the latter years of The Articles of Confederation, experience which led him to believe the US needed a stronger central government. He had been a member of the original Continental Congress but withdrew rather than sign The Declaration of Independence, preferring reconciliation with Great Britain to separation from. Once independence had been declared, however, he fervently supported it.
He had also withdrawn from participation in The Federalist essays largely because of health concerns, and 64 was his fifth and final contribution to the series. Not surprisingly he focused on the national government’s power to make treaties, paying special attention to the role of the Senate. Granted, it would be difficult to imagine what a national government would look like without the power to make treaties, just as with state governments, but the important institutional questions are who has that power and to what end will it be exercised? The Constitution divided the power between the Senate and the executive and in Article VI the Constitution enlarged the power with this controversial clause: “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.”
I’ll have more opportunities to discuss the Supremacy Clause, but note that it is connected directly to the power to make treaties, one of the things about Article II’s grant of authority that worried critics, along with the constant blending of power between the legislative and executive branches. We often talk about “separation of powers,” but the Anti-federalists realized that that is not what the Constitution did; rather, it had separate branches sharing powers, and such sharing of power would undoubtedly result in consolidation and growth of the central government.
This general concern led Jay to start by admonishing the Anti-federalists, accusing them of nitpicking their way through the Constitution. Because they didn’t like the general structure of it, he argued, they tended to complain about parts of it that no sensible person could possibly criticize, locating the treaty-making power in the Senate being a prime example. As I said, any government has to have the capacity to negotiate with other governments and that power to do so has to be placed in someone’s hands. How do you insure that the power won’t be abused in the sense of either working against the genuine public interest or by advancing a particular set of interests?
Jay approached this concern in a couple of ways, but perhaps his most novel argument was that the Anti-federalists were being overly scrupulous in their concerns. Skepticism is like bile in the body, he said: necessary for good health, but too much of it and it destroys the body’s well-being. Conversely, an Anti-federalist might say, power is like food: we need some of it to survive, but too much of it is destructive of health. As Brutus repeatedly noted: a power once given will never be retracted or even scaled-back. Better to get it right at the beginning than think you can keep readjusting it as you go along because the ratchet will only turn in one direction.
That argument didn’t persuade Jay who insisted that the new government could make its adjustments as circumstances dictated. What was called for was an operational system that could not be constructed a priori but required development in the process of its functioning. As the nation would grow and the economy, especially commerce and trade, would become more complex, the government’s treaty-making power had to have the capacity to adjust to the changing realities of politics and economics.
This need for adjustment was taken by Jay to be a mark in the Constitution’s favor in two senses. In the first place the treaty-making power would require men of extraordinary ability, wisdom, and virtue and who possessed a sterling reputation for honorable conduct. The mode of selection for both senators and presidents, having been taken out of the hands of the people, insured that only such persons would hold the high offices. This further guaranteed that they would operate only in the public interest and never in their own or in that of a particular class of citizens.
Anti-federalists feared that Jay’s emphasis on “trade and commerce” gave away the game, for the conflict between the agrarian and merchant classes was a good part of what drove the controversy over ratification. Aping Hamilton’s insistence on the vital importance of trade and commerce, Jay reaffirmed the Constitutional tilting of the balance, his belief in keeping both power and selection non-democratic justifying his confidence that only the best and the brightest would engage in treaty-making, and that only out of concern for the public good. Vietnam alone ought to have shaken our continued adherence to such confidence.
I would not gainsay Jay’s belief that honor matters among political actors and that when honor wanes governance surely goes sideways. Washington took the concept of honor very seriously indeed, and it directed his actions, including his pattern of abdicating power. But we have not always had a Washington. About LBJ, for example, his biographer Robert Caro wrote that “Johnson's ambition was uncommon – in the degree to which it was unencumbered by even the slightest excess weight of ideology, of philosophy, of principles, of beliefs.” One reason we are suspicious about power adapting to changing circumstances is because those circumstances require interpretation and judgement, and that can’t be left in the hands of the people who will also exercise the powers.
Jay’s second defense of the principle of adjustment was that both the mode of selection and the length of terms were necessary to stabilize the political system in its dealings with foreign countries. Jay rightly points to the fact that treaties require (at least) two parties, and that a party with whom one treats expects it to hold regardless of changes in administration or legislative staffing. Were all of government to turn over every year or two, foreign nations would be hesitant indeed to make deals with us, for any deal is brokered on expectations concerning future performance. Longer terms stabilize the system in such a way as to generate confidence among those with whom we treat.
The other key, Jay believed, was that time in office would give senators the requisite experience, and thus prudence, they needed to deal well with foreign actors. Furthermore, the cycling of senators by thirds every two years would provide to junior members the kind of mentoring and instruction they needed to make good decisions. Against the tempests of the democratic house the aristocratic Senate alone provided calm seas. “These gentlemen,” Jay wrote about the critics, “would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them ABSOLUTELY, but on us only so long and so far as we may think proper to be bound by it.” We have become all-too-familiar with situations where governments fail to live up to their obligations or change the terms of treaties on the fly.
Jay finally addressed the concerns about corruption, that the senate and executive might conspire together or that a particular set of interests might prevail. Interestingly enough Jay dismissed this as a near logical impossibility for the simple reason, along the lines Madison argued in 57, that for any law to be legitimate it had to bind those who made the law, without exception. “It will not be in the power of the President and Senate,” Jay expounded, “to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community; and, having no private interests distinct from that of the nation, they will be under no temptations to neglect the latter.”
Experience again suggests that Jay was too optimistic in his view that national interests would always prevail over private ones, and that politicians would not use their offices and their ability to make deals with foreign powers to enrich themselves or their progeny. So, too, did he place too much confidence in numbers, the idea that you could never get ⅔ of the senate to collude with the administration and that the executive would always be staffed by an honorable man. As Madison himself said: “Enlightened statesmen will not always be at the helm.”
For Anti-federalists Article VI strongly indicated that states would not be able to treat with foreign powers, or that any treaties they had found be superseded, and this too was an attenuation of state sovereignty. The whole design titled away from the interests of the states. Perhaps a more energized national government was required, but one should always hesitate to overreact to current circumstances.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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