In addition to the subject of executive appointments, the attendees of the Philadelphia Convention also spent a goodly portion of the session of September 7th, 1787 discussing the propriety of requiring the approval of the Senate for the final ratification of international treaties. Among the various responsibilities which had been provisionally granted to said body, treaty ratification was potentially among the thorniest, in no small part because it appeared to combine the prerogatives of the executive and legislative branches. Foreign policy, under the auspices of the proposed constitution, was to be the particular responsibility of the American republic’s chief executive, both in terms of the nomination of ambassadors or special envoys and in the context of actual diplomatic negotiations. But as treaties, of whatever type, were also described in the text of the proposed constitution as carrying the full force of law, it made a certain amount of sense for their terms to be subject to legislative approval. The President, after all, could not be permitted to alter or abridge the terms of domestic law on his own recognizance, particularly if his efforts were the product of close cooperation with a foreign power. But while looping Congress into the treaty-making process accordingly made a certain amount of both practical and philosophical sense, it was not necessarily clear – at least not at the outset of the relevant discussions – just how such an arrangement might best be accomplished. The Senate was an early favorite in terms of which branch of the national legislature was best suited to the responsibilities in question, owing, no doubt, to its intended status as the representative chamber of the wealthy and connected. But was this first impulse necessarily the right one? Were there drawbacks to allowing indirectly elected Senators to singlehandedly approve of legally binding treaties? Were there ways to ameliorate some of the drawbacks inherent to the Senate, or was it perhaps the better part of wisdom to re-examine the whole idea?
James Wilson was the first delegate to raise this particular subject during the discussion of September 7th. The day’s conversation had previously been focused on the nature of the Senate’s appointment powers, and this was indeed the avenue to which it would return. But for a moment, before being diverted, Wilson gave voice to certain concerns. Specifically, the assembled delegates having for the moment opted to take up the clause of the proposed constitution which stated that, “The President by & with the advice and consent of the Senate shall have the power to make Treaties &c [,]” the gentleman from Pennsylvania, “Moved to add, after the word ‘Senate’ the words, ‘and the House of Representatives.’” His rationale, as he thereafter went on to explain it, was simple enough. “As treaties [,]” he said,
Are to have
the operation of laws, they ought to have the sanction of laws also. The
circumstance of secrecy in the business of treaties formed the only objection;
but this […] so far as it was inconsistent with obtaining the Legislative
sanction, was outweighed by the necessity of the latter.
In
keeping with his position on the question of executive appointments, Wilson
seemed to be speaking mainly from a place of principle when he made this
assertion. Secrecy, he admitted, was often an important element in the
successful negotiation of international treaties, and it would have been
difficult to argue that the expansive and changeable House of Representatives
would be better able to keep its proceedings secret than the much smaller and
more stable Senate. The former was bound to attract a more energetic sort than
the latter, and the security of certain sensitive negotiations may well have
suffered if the larger of the two was made party to the discussions in question.
All that being said, Wilson nevertheless endorsed the inclusion of the House
along with the Senate in the ratification of binding treaties. As
aforementioned, such documents were to possess, “The operation of laws,” and he
evidently found it inconceivable that the more representative chamber of
Congress should have been excluded from any process that produced them. The
result may have been inconvenient – taking the form, perhaps, of the occasional
breach of secrecy – but to Wilson’s thinking it was an acceptable trade-off
given what was at stake.
During this brief dip into the
subject of treaty ratification amidst the larger discussion of executive
appointments, the only other delegate who was recorded as having spoken was
Connecticut’s Roger Sherman. And while his observation on the matter at hand
was a relatively brief one, it was also characteristically astute. “The only
question that could be made [,]” he said, “Was whether the power could be
safely trusted to the Senate. He thought it could; and that the necessity of
secresy in the case of treaties forbade a reference of them to the whole
legislature.” But while this comment might seem on the surface like little more
than a straightforward rebuttal of Wilson’s cited reflection – in as much as
Wilson thought secrecy less important and Sherman thought it more important –
it in fact cut to the heart of the issue then under discussion. Wilson’s
position, in essence, was that the treaty-making power which he and his fellow
delegates were preparing to bestow upon the national government came too near
to being a species of legislation for it to fall only partly within the purview
of the United States Congress. If treaties thus negotiated were indeed to
possess the full force of law, it then stood to reason that the body
responsible for making law for the United States should have been granted full
power and responsibility to examine the same and vote its approval or
rejection. This was a reasonable enough position, of course, but one which Mr.
Sherman seemed to think only served to obscure the real issue at hand. While
Mr. Wilson had claimed, as justification for granting the House equal
responsibility for treaties with the Senate, that if treaties were to, “Have
the operation of laws, they ought to have the sanction of laws also [,]” –
i.e., that if treaties were going to be treated like every other federal law
then they should be approved by Congress like every other federal law – what he
really meant to say was that he didn’t trust the Senate to see to this task
alone.
Such a belief, as far as Roger
Sherman was concerned, was quite unfounded. And while he did not explain his
reasoning, per se, his base assertion was nevertheless a sound one. The
assembled delegates, recall, had already provisionally agreed to allow the
Senate to approve of treaties on its own recognizance without any reference to
the House of Representatives. Wilson objected to this procedure, on the general
grounds that things that behaved like laws should be treated like laws, but he
did not go into very much detail as to why. Why, in his mind, could the Senate
not attend to the ratification of treaties on its own authority? Why, given the
aforementioned need for secrecy, did this not represent an acceptable
compromise between requiring the approval of both chambers of Congress and
allowing the executive to make treaties on their own? The answer, as near as
Sherman could figure it, was that Wilson simply didn’t trust the Senate. He
hadn’t said as much, of course, but what other answer could there be? He didn’t
trust the Senate in the same way that he trusted both chambers of Congress
together and was willing to sacrifice the needs of secrecy to satisfy his own
peace of mind. Sherman, as noted above, disagreed with his position. And though
he did not explain from where he derived his trust in the upper house, it was
nevertheless very shrewd of him to identify this selfsame sense of
institutional faith as the crux of the issue at hand. Between asking the Senate
to ratify treaties alone and asking both chambers of Congress to do so
together, the former course was inarguably the more practical of the two. It
stood to reason, then, that the only question worth answering was whether one
trusted the Senate or one held them under suspicion.
Without being able to say,
precisely, how each of the assembled delegates ultimately felt compelled to
respond, the result of the vote which was held shortly thereafter on Wilson’s
motion would seem to serve as evidence for a fairly definitive general
consensus. Wilson’s proposal having been seconded by his countryman Thomas
Fitzsimmons, the final tally was ten states opposed and only one state in
favor. The only delegation that voted to adopt the motion, perhaps
unsurprisingly, was Wilson’s own Pennsylvania. Most of the attendees to the
Philadelphia Convention, it seemed, had come around to the idea that vesting
the upper house of Congress with certain unique responsibilities was both a
safe and useful course of action. And while they would continue to debate
precisely how and under what circumstances these responsibilities were to be
exercised, they no longer appeared interested in questioning whether the Senate
could be trusted or whether its members were in need of institutional
restraint. On the contrary, rather than seek to restrain the Senate, most of
the delegates seemed increasingly to be of the opinion that a sufficiently
empowered Senate might act as a useful restraint upon the nation’s chief
executive. They too, quite possibly, did not trust the Senate implicitly –
being, as it was, a self-consciously aristocratic body. But they almost
certainly reserved their deepest suspicions for the office that was most
obviously ripe for abuse. A council of notables, after all, might well conspire
to defraud the people, but a canny executive could do so without requiring any
knowing assistance at all.
This exact sentiment, in point of
fact, formed the basis of a further discussion of the Senate’s treaty-making
power which took place some time later during that same session of September 7th.
Having returned to, and partly settled, the matter of the upper chamber’s
appointment power, the assembled delegates turned they attention once more to
the Senate’s presumptive role in the ratification and enforcement of
international agreements. At this point in the course of the Convention, the
draft text of the proposed constitution declared that, “The President by and
with the advice and consent of the Senate shall have power to make Treaties […]
But no treaty shall be made without the consent of two thirds of the members
present [.]” Wilson’s attempt to grant the lower chamber equal authority to
that of the upper chamber had, as aforementioned, been voted down by an
overwhelming majority, but this had evidently done little to dampen the
vehemence of that selfsame gentleman’s concerns. Indeed, upon having the
relevant draft text read back to him, Mr. Wilson promptly rose to declare that
he, “Thought it objectionable to require the concurrence of 2/3 which puts it
in the power of a minority to controul the will of a majority.” Rufus King then
proceeded to voice his concurrence, “Remarking that as the Executive was here
joined in the business, there was a check which did not exist in Congress where
the concurrence of 2/3 was required.” Evidently, as far as these two gentlemen
were concerned, powerful Senate minorities were to be feared and avoided no
less so than a corrupt executive.
There was something to this branch
of argument, of course, particularly in the context of an equally apportioned
Senate. The entire purpose of the upper house, pursuant to the terms of the
Connecticut Compromise, was to allow every state to hold the same degree of
authority regardless of the size of their respective populations. Small states
like Connecticut, for example, would be on an equal footing with large states
like New York, thus forcing such large states to seek compromise in order to
achieve their desired outcomes. But in the event that the Senate was granted a unique
and particularly sweeping power – like, say, the right to advise and consent to
executive appointments or to ratify or reject international treaties – this
measure, whose intention was to grant the small states some sense of security
and confidence, might in turn produce a situation in which the principle of
majority rule became meaningless. Consider, to that end, a fairly straightforward
scenario. The Senate, pursuant to its established responsibilities, is tasked
with either approving or rejecting a treaty of amity and trade between the
United States and a foreign power. The President, pursuant to his own authority
in this sphere, has worked long and hard with his envoys and their foreign
counterparts to secure what they all feel to be a mutually beneficial
agreement, and the document in question has now been submitted for Senate
appraisal. Of the twenty-six Senators then seated, the approval of eighteen is
required before the treaty can be considered ratified. A debate ensures,
speeches are given, points are raised, and a final vote is eventually held.
Seventeen Senators, representing all of the largest states and a number of the
smaller ones, vote in favor. The remaining nine, representing, say, the smaller
New England states nearest the border with Canada, votes against. The motion is
thus defeated; the treaty is not adopted.
Granting that this is a purely
hypothetical scenario wholly lacking in detail or context, the circumstances
which might produce it are not all that difficult to imagine. If the agreement
in question was between the United States and the Kingdom of Spain, for
example, with the aim of opening up trade between the former nation and the
latter’s colonial possessions in the Americas, it might easily come to pass
that Southern states intent on trading in slaves and transporting their produce
to market via the Spanish port city of New Orleans might find themselves in
direct opposition to Northern states whose commercial interests favored access
to British and French possessions in the Caribbean or in Canada. The
representatives of New York and Pennsylvania might conceivably see their way
clear to approving of such an accord, their states’ commercial leanings tending
to favor any agreement that promised opportunity for profit, but the New
England states might as easily claim to see in such a pact a concerted Southern
effort to disrupt their accustomed mercantile superiority. “This is only petty
animus,” their representatives in the Senate might accordingly claim, “A
jealous attempt to gain an advantage for themselves while our own merchants
suffer for a lack of commercial opportunities. The great empires of Europe will
not tolerate making agreements with the same nations as their rivals, and the
representatives of the South have selfishly chosen to prejudice their own
interests over those of the commercial heart of this nation.” Concessions might
be made, to be sure, provided all parties come to agree that the accord was
never intended as an instrument of spite. But, then again, they might not, the
result of which would be the rejection of a potentially lucrative trade
agreement at the behest of a minority of Senators representing a minority of
the American population. For a nation which would claim for itself the mantle
of liberty and justice, this would seem to be a result at once unjust and
potentially dangerous.
Bearing the possibility of such an
outcome in mind, Messrs. Wilson and King accordingly believed that requiring a
two-thirds majority for the ratification of treaties to be both inadvisable and
unnecessary. Inadvisable, as Mr. Wilson mentioned, because it would place far
too much power in the hands of a minority of the American people, the result of
which might end up being the complete erosion of popular trust in the very
notion of an American republic. And unnecessary, as Mr. King mentioned, because
the President would act as a check on Congress in their own right. What King
meant by this, almost certainly, was that the threshold of treaty ratification
need not have been so high because the chief executive was intended to play an
integral role in the relevant process from start to finish. If the Senate were
to posses sole the responsibility for approving treaties, it might indeed make
good sense to require a two-thirds majority for ratification. Setting the
relevant threshold at only a simple majority would allow as few as fourteen
Senators representing less than half of the total population to grant the
approval of Congress to a series of legally binding treaty directives with
potentially wide-ranging consequences. But the Senate, of course, was not to
possess this power. As mandated by the text of the proposed constitution, the
upper chamber of Congress was permitted to review and provide their consent
only to such agreements as the President saw fit to present them. And since the
President was to set to be the only officer in the entire federal government
who could claim to represent the whole of the American people, their role in
the treaty-making process might be considered a form of “pre-clearance.” It
would be permissible, in short, for only a simple majority of Senators to vote
to approve a given treaty because said treaty had necessarily already been
approved by the one magistrate in the entire country who could claim a national
mandate.
In the moment, as it happened, no one took this argument up. Or, at the very least, they did not take it up directly. The next argument to be offered, however, did represent something of a philosophical counterpoint. Wilson and King, recall, had shown themselves to be both distrustful of the Senate and willing to place their confidence in the President as the common representative of the American people. A minority in the Senate, they said, should not be allowed to obstruct the vital business of the nation, while the office of President, they said, could be trusted to ensure that no treaty placed before the Senate for approval failed to account for the best interests of the population. James Madison’s response to these assertions – if, again, response is the right word – was to give voice to a substantially divergent set of sentiments. But first, to the apparently unanimous approval of his colleagues, he, “Moved to insert after the word “treaty” the words “except treaties of peace” allowing these to be made with less difficulty than other treaties [.]” That Messrs. Wilson and King appeared to support this alteration is substantially unsurprising. It was their assertion, after all, that a two-thirds threshold represented an unnecessarily high barrier against the passage of potentially critical international agreements. Madison’s suggestion that treaties of peace might be approved by only a simple majority accordingly addressed this concern, at least in part. But Mr. Madison, as it turned out, had further changes to suggest.
From seeming to offer solace to those who believed that the President had an important role to play in the treaty-making process – namely as an agent of restraint upon the authority of the Senate – the gentleman from Virginia thereafter proceeded to propose something that seemed calculated to offend these very same individuals. Madison, it was thus recorded,
Moved to
authorise a concurrence of two thirds of the Senate to make treaties of peace,
without the concurrence of the President. The President he said would
necessarily derive so much power and importance from a state of war that he
might be tempted, if authorised, to impede a treaty of peace.
Evidently,
as far as Madison was concerned, the role to be played by the President within the
treaty-making process should have been a source of suspicion rather than
comfort. Oh, perhaps the chief executive could be counted on when it came to
treaties of commerce and the like, but treaties of peace? As the Virginian explicitly
noted, the President stood to derive far too much unchecked power from the
existence of a state of war to grant them too much leeway when it came time to
sue for peace. Granted, it wasn’t entirely clear how the Senate might go about
forming a peace treaty on its own initiative given that most of the foreign
policy machinery of the national government was to rest in the hands of the
executive branch. Would the upper house choose its own negotiators? Would
Senators simply attend to the business themselves? Madison did not say. But
what was clear was how little comfort the gentleman in question derived from
this one aspect of the President’s authority. Better, he seemed to think, to
allow the Senate to bypass the chief executive entirely in the event that
enough of its members agreed to do so.
The immediate response to Mr. Madison’s proposal was understandably somewhat mixed. Pierce Butler of South Carolina spoke up immediately to offer his support, and a short time later would give voice to a very interesting justification. But before he could do so, Nathaniel Gorham and Gouverneur Morris first made clear their abiding skepticism. Gorham, for one, “Thought the precaution unnecessary as the means of carrying on the war would not be in the hands of the President, but of the Legislature.” Morris then proceeded to add that he also, “Thought the power of the President in this case harmless; and that no peace ought to be made without the concurrence of the President, who was the general Guardian of the National interests.” The crux of both of these arguments, of course, was that the President’s powers within the context of a state of war actually weren’t to be feared as much as Madison avowed that they should be. How was the President supposed to take undue advantage of their war powers if it lay with Congress to make the relevant declaration? A conspiracy between these two entities might conceivably give rise to some species of military tyranny, it was true, but how likely were Congress and the President to find their interests so aligned? Gorham did not say. Nor did he pay any heed to the notion that an ill-designing President might seek to take advantage of a war they did not start for the purpose of further empowering themselves.
And then, of course, there was the aforementioned Mr. Morris, who seemed to think that the President’s role as the superintendent of national affairs absolutely required them to play some part in drafting treaties of peace. Was it possible that this superintending authority might conceivably be abused? Was it possible that some future President might attempt to use their war powers in a way that was anything but harmless? Morris, also, did not say. But while this conspicuous silence might seem to indicate a sense of cupidity on the part of the gentleman from Pennsylvania and his colleague from Massachusetts, this need not have necessarily been the case. More than likely, rather than being too naïve for their own good, Morris and Gorham were simply of the opinion that the President should not have been a source of fear and suspicion. They and their colleagues had created the office to serve a particular purpose, after all, and it doubtless seemed strange to them to then fetter it with myriad restrictions for fear of what some future occupant might do. If the executive branch was to function as the chief organ of the nation’s foreign policy, they doubtless reasoned, then it made little sense to burden it with a great many caveats and qualifications, thus lessening its effectiveness.
It was at this point that Pierce Butler finally gave voice to the reasons behind his aforementioned support for Madison’s cited proposal. He was, he said, “Stenuously for the motion, as a necessary security against ambitious & corrupt Presidents.” And as evidence of the kinds of ambitious and corrupt behavior he hoped to guard against, he made mention of two instances from recent European history. The first, as Butler put it, was, “The late perfidious policy of the Statholder in Holland [,]” while the second was, “The artifices of the Duke of Marlbro’ to prolong the war of which he had the management.” The gentlemen said no more about either of these allusions, unfortunately, leaving it up to his audience to piece together precisely what it was he meant. Luckily for those of us otherwise unfamiliar with all the myriad ins and outs of 18th century European history, a little research would seem to provide a fairly obvious set of explanations. In the first instance, Butler was almost certainly referring to a series of events which took place in the Dutch Republic between about 1780 and 1787 known collectively as the Patriottentijd. And in the second instance, he was unquestionably speaking about the actions taken and the opinions expressed by John Churchill, 1st Duke of Marlborough, during the closing phase of the War of the Spanish Succession (1701-1714).
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