Federalist 75
Our tendency to think of the states as little more than administrative units of the federal government creates endless confusion concerning the controversies over ratification. Likewise, our understanding of international politics and our hopelessly naive view of the world as “flat” distorts our understanding of international politics. The idea that “minding one’s own business,” which for a long time was the standard approach to foreign affairs, now seems quaint.
Any government has to have the capacity to make deals with other governments. These deals will typically be arranged according to the interests of both and can involve, among other things, commercial transactions, suits for peace, yielding of territory, or agreements about passage. These agreements typically operate off leverage and self-interest. A treaty often ends a war, and the losing side will agree to it because it is in their best interest to do so. The treaty might result in disarmament or cession of territory, but the losing side will agree because the alternative is much worse. Treaties require legitimately constituted authorities acting as agents for the principal actors and insuring that those authorities don’t substitute their own interests for those they represent.
Treaties may involve single actors or alliances; if it’s an alliance then serious attention must be given to whom can speak on behalf of all. The fact is that most negotiations work best by limiting the number of parties involved. In America politics the principal/agent takes on a unique complexity because it’s not clear who the principal or principals are: the “people” or the states?
A political leader, when treating with a foreign potentate, may understand himself as operating on behalf of “the people,” but there will always be remainders. Surely some of the people will regard the deal as a bad one, and regard themselves as losers. The crafters of NAFTA may have thought they were making a “good” deal that served the interests of many, of not most, Americans, but it should be obvious by now that many workers perceive NAFTA as having worked contrary to their interests.
As I’ve indicated, the nature of the treaty determines the interests involved. A peace treaty typically works to the advantage of everyone, since war respects neither class nor creed, but commercial treaties tend to separate the polity into winners and losers. Knowing this, the architects of the Constitution had to decide whether all kinds of treating were created equal and who should be responsible for each. Options included allowing each state to pursue treaties on their own; or deferring to one or both chambers of the legislature; or allowing the executive to enjoy the royal privilege of treating; or blending the powers of different branches, the solution settled upon.
That solution, of course, rubs against the idea of separating powers, but also indicates that the Constitution never intended an absolute separation but rather a careful blending of powers. This blending alarmed critics and put the Constitution’s advocates on the defensive. Since the blending of power was typically understood to be a recipe for tyranny, the defense of it had to allay fears of tyranny. Treaties could be made that worked against the people’s interests and little could be done, especially since the President and Senators were not only not directly elected by the people but held lengthy terms.
The most interesting debates concerning Article II’s granting of treaty power to the executive and the Senate occurred at the state ratifying conventions. This should not surprise us because this power, along with the commerce power, was the one that most put the states at a disadvantage. Many delegates understood the treaty power in Article II as tied to Congress’s commerce power in Article I section 8, thus justifying combining executive energy and dispatch with congressional deliberation and legitimacy.
We may obviously focus on what we gain by treating with other nations but pay less attention to what we might give up. The treaty power is not like other governmental powers because it doesn’t pertain between governor and citizen but between two sovereign authorities. It has more the nature of a contract than a bond between the ruler and the ruled. But it also has less accountability and, because negotiations are often done in secret, less transparency.
That lack of accountability can become a special problem when one considers what a government might trade off to get what it wants. Those who worried most about the treaty power worried that government might trade off land or, worse still, individual liberties in order to make a deal. I think this is one of those complicated situations where there is no ideal solution and the convention may have settled on the least objectionable one. The House, many worried, would make settlements too complicated and would also not be capable of the secretiveness required. The Senate’s comparatively small size and being a step removed from the people would solve that problem, especially when combined with the executive representing the whole nation to a foreign dignitary.
Hamilton, in Federalist #75, again employed his typical rhetorical strategy of dismissing arguments against this clause of the Constitution, allowing that “though this provision has been assailed, on different grounds, with no small degree of vehemence,” he nonetheless would “declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan.” It’s true that the clause was discussed extensively, but not because it was unexceptionable but because so much was at stake. Most delegates worried not about what would happen if a power was used well but fretted about the likelihood it would be used badly, and to the disadvantage of liberty.
The treaty power, Hamilton argued, was neither purely executive or purely legislative in character. Indeed, in our relations with foreign nations we sometimes see Congress take the lead, as in NAFTA, and sometimes the executive through the use of executive agreements that get executed without congressional consent, a tactic already used by Washington and Adams during their presidencies. The president cannot summarily terminate treaties, however, because under the Supremacy Clause they do become the supreme law of the land, which to critics meant that it could be another tool by which the new government would usurp the authority of the states.
Thus they referred the treaty power to the Senate as well, for the Senate represented the interests of the states. It was entirely thinkable and even likely that the federal government could enact treaties, especially of a commercial nature, that would work to the economic interests of one region and against those of another. For that reason the clause insists on ratification by ⅔ of the members present (operating on the assumption that you wouldn’t always have all the members present, given the distances they had to travel and the treaties might occur in emergent situations). As Hamilton observed:
“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.”
At the Virginia ratifying convention Madison made it clear that Blackstone was to be the trusted authority on this question. In his Commentaries Blackstone had claimed that
“With regard to foreign concerns, the king is the delegate or representative of his people. It is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves. Unanimity must be wanting to their measures, and strength to the execution of their counsels. In the king therefore, as in a center, all the rays of his people are united, and form by that union a consistency, splendor, and power, that make him feared and respected by foreign potentates; who would scruple to enter into any engagements, that must afterwards be revised and ratified by a popular assembly.”
So why not simply give the president sole power to make treaties? Obviously comparing too closely the president to the king would be a fraught process, but as Madison had said in another context, enlightened statesman would not always be at the helm. The Senate was needed as a check upon the possibility of a corrupt person occupying the White House. This would especially be the case if, as Hamilton worried might be the case, someone from the lower classes would ever make his way to the presidency.
“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.”
We have seen sufficient evidence of unscrupulous people using their office for personal gain to acknowledge the wisdom of Hamilton’s suspicions.
The Anti-federalists objected not so much to the president having the power to treat — they recognized that any nation had to have that power and it had to be concentrated — but worried about the blending of executive and legislative powers, a violation of Montsquieu’s principles of sound constitutionalism and a recipe for tyranny. Some of them wanted the House to have a larger role, given its proximity to the people.
There was one widely accepted limit to the treaty power: the person in charge did not have the authority to “dismember the empire.” Treaties in extreme situations might be required in order to preserve the body politic but could never be a suicide pact. But I think the critics worried more about treaties concerning commerce than they did peace treaties. The, too, sensible people warned about the dangers of entangling alliances with the hopes that the young nation would largely avoid involving itself in European affairs. These warnings often went unheeded.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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