Having left the previous day’s session seemingly in doubt as to the Senate’s reliability, the fact that the debate of September 8th opened on a somewhat contentious note should perhaps not come as a surprise. Some amount of agreement had ostensibly been reached, to be sure. For one thing, the discussion of the previous day appeared to settle the issue of how the Senate and the President were to cooperate in the establishment of treaties. Madison had failed to convince his colleagues that the upper house ought to possess the right to approve of treaties of peace without reference to the President, but he had least secured their agreement for a simple majority threshold for the approval of such agreements. But then, as the next day’s debate got underway, two delegates almost immediately raised such objections as to throw the whole subject into question once more. Rufus King of Massachusetts, for one, “Moved to strike out the “exception of Treaties of peace” from the general clause requiring two thirds of the Senate for making Treaties [,]” thereby seeking to reverse a decision that had previously been agreed to nem. con. And then, but a moment later, James Wilson of Pennsylvania added his own wrinkle to the proceedings. It was his wish, he said, that, “The requisition of two thirds to be struck out altogether. If the majority cannot be trusted,” he continued, “It was proof, as observed by Mr. Ghorum, that we are not fit for one society.” Between these two motions, one might fairly argue, most of the previous day’s work was set to be undone.
With Mr. King’s motion as the basis
of the ensuing discussion, the first of the delegates to speak was
Pennsylvania’s Gouverneur Morris. Contrary to his colleague representing the
state of Massachusetts, Morris believed that the clause in question was bound
to serve at least two useful purposes. On the one hand, since it would allow a
simple majority of Senators to approve of a treaty of peace, such a provision
would accordingly prevent a consensus of as much as fifty-nine percent from
being forced to admit their powerlessness when attempting to move a given
agreement. In any other context, a fifty-nine percent majority would be capable
of securing any motion or proposal it cared to, but that same majority – if the
clause in question was struck out – would be confronted with defeat and
embarrassment upon attempting to end a war by way of diplomacy. This, Morris
held, would be a truly disagreeable outcome, from a moral perspective if from
no other. But there was also, as it happened, a more pragmatic view as well. If
a majority in the Senate – but one which did not reach a two-thirds threshold –
desired to approve of a treaty of peace and failed, that same group might in
turn attempt to use its numbers to achieve the outcome it desired in the realm
of regular legislation. If, for example, a frustrated Senate majority, unable
to move a treaty of peace, instead voted in favor of cutting off funding for
the nation’s armed forces, the results might probably have been disastrous.
Granted, it would be hard to imagine a group of Senators willingly endangering
American servicemembers for the purpose of drawing a given armed conflict whose
ending they sought to a definitive conclusion, but Morris was nevertheless
correct in pointing out that the possibility definitely existed. If a Senate
majority was prevented from acting in this one policy area in exception to all
others, displeasure and resentment – and whatever outcome such feelings
produced – were very likely to be the result.
Unsurprisingly, given his cited antipathy for the whole concept of a two-thirds threshold, Morris’s fellow Pennsylvanian James Wilson also expressed his disagreement with striking out the clause in question. But while Morris approached the subject from the perspective of a potentially frustrated Senate majority, Wilson sought to point of the likely emergence of a powerful and unrepresentative Senate minority. “If two thirds are necessary to make peace,” he thus observed, “The minority may perpetuate war, against the sense of the majority.” What he meant by this, of course, was that if the sealing of a treaty of peace by the Senate required a majority vote of at least two-thirds of those seated, little more than one-third might be said to hold the balance of power. Indeed, it might be far fewer, depending on the opinions held by the various Senators. In a Senate in which all thirteen states hold two seats each, giving a total of twenty-six Senators altogether, a two-thirds majority would come out to seventeen. If ten Senators of these twenty-six were dead-set in favor of a treaty of peace, nine were dead-set against it, four were leaning in favor, and the remaining three were entirely unconvinced, which group holds the advantage? The ten wholly in favor of the treaty and the four leaning in that direction account for a simple majority between them, but they cannot secure the peace they desire without convincing all three of the undecideds. Does this kind of scenario not place an undue amount of power – the ability, as Mr. Gerry pointed out on the 7th, to give away fishing rights or cede territory – in the hands of only three people?
In point of fact, given that every state was to enjoy equal representation in the Senate, these three people might represent an even smaller fraction of the population than their relative numbers might imply. If every Senator represented the same number of people, three of them might claim to speak for one-ninth of the American people. But as the Senate, by design, was intended to grant equal weight to all states regardless of population, these three might instead represent the smallest among them – these being, as of 1780, Rhode Island, Delaware, and Georgia. Taken together, these three states, with a combined population of approximately one hundred and fifty thousand, would account for only one-seventeenth of the nation’s total population of two million six hundred thousand. Assuming that one Senator from each of these states constitute the three wavering votes, should the small fraction of the American people that these men represent be permitted to makes decisions on behalf of the rest? Decisions involving territorial secession, war reparations, or the continued suffering of American soldiers? James Wilson was of the opinion that this should absolutely not have been the case. The minority, he said, must not be allowed to perpetuate war against the sense of the majority. As true as this was within the specific context of the Senate, it was surely truer still in terms of the broader population.
Interestingly enough, North Carolina’s Hugh Williamson made what was essentially the opposite case to that his colleague Wilson by way of much the same logic. Responding specifically to Wilson’s initial premise and Morris’s seconding thereof, he argued that even under normal circumstances in the Senate, “There may be a majority of the States without a majority of the people. Eight men may be a majority of a quorum, & should not have the power to decide the conditions of peace.” In terms of raw numbers, this accounting was substantially accurate. With twenty-six Senators in total, a quorum – that is, the smallest number necessary to transact business – would come out to fourteen, a simple majority of which would indeed be only eight. But while allowing this majority of eight Senators to approve a potentially wide-ranging treaty of peace might seem a preferable alternative to allowing as few as three Senators to hold the balance of power under the terms of a two-thirds threshold, the same rationale which made the latter outcome appear unpalatable spoke little better for the former. Empowering eight Senators in this way might appear to be preferable to empowering three, but even an eight-man majority might represent less than half of the American population. Such was the nature of the Senate, after all, that just more than half of just more than half of its total membership might conceivably represent a far smaller fraction that these ratios would otherwise indicate. Consider, by way of example, some of the same population figures which were deployed above. The eight smallest states as of 1780 were New Hampshire, Rhode Island, Delaware, Georgia, New Jersey, South Carolina, Connecticut and New York, the combined population of which was approximately nine hundred and seventy thousand. With a total contemporary US population of two million six hundred thousand, a simple Senate majority comprised of one Senator from each of these eight specific states could claim to represent only about one-third of the American people.
There was no reason to believe that the numbers would always work out in this one specific way, of course. If the matter under discussion was a treaty of peace, it would seem likely that a greater number of Senators than just a bare quorum would make a point of appearing. And while the appearance of a bare quorum would require a majority of only eight Senators to approve of such a treaty, the resulting consensus might instead include those members who represented the eight largest states rather than the eight smallest. Indeed, it would seem quite unlikely, on the face of it, that this particular grouping of Northern states and Southern states, those who depended on slavery and agriculture and those who were primarily commercial or mercantile, would find common cause. Nevertheless, the possibility did exist. Just as a simple Senate majority might seek to exorcize its frustration at failing to surmount a two-thirds threshold by seeking to withhold military resources during a conflict which it wished to end, a majority of the eight smallest states – representing, as aforementioned, only one-third of the population – might approve of a treaty of peace whose terms could have severe consequences for the whole of the American people. Williamson’s intention, bearing this simple fact in mind, seemed to be increase the likelihood that the constituents represented by a Senate majority voting in favor of a peace treaty would actually constitute a majority of the American people as whole.
A two-thirds Senate threshold, while it might indeed have ended up playing into the hands of only a fraction of the seated members, was also far more likely to include the representatives of at least half of the total population. Granted, when one once again examines the figures cited previously, the shortest route to seventeen votes – two from each of the eight smallest states and one from the next-smallest, North Carolina – would amount to one million two hundred and fifty thousand or just under half (forty-eight percent) of the total. But if the same vote was being held with only a bare quorum, a two-thirds threshold – to the tune of nine votes, one each from the nine smallest states – would potentially amount to the same overall percentage. And bearing in mind that this selfsame arrangement of states is more than a little artificial, the likelihood of the remaining larger states being included would seem to increase the probability that a two-thirds threshold would yield an actual majority in terms of the represented population. There were no guarantees, of course; no way of ensuring that every vote on a treaty of peace was approved by the representatives of a majority of the American people. But this, within the context of the draft constitution as a whole, was rather par for the course. Examining just about any clause or provision in detail was likely to reveal potential edge cases or worst-case scenarios. Such was the nature of most any codified governing charter intended to rationalize the administration of that most irrational beast, mankind. Williamson’s intention, therefore, was simply to make the emergence of a truly representative Senate majority as likely as possible whenever the Senate was called upon to approve a treaty of peace. As a two-thirds threshold seemed a fairly reasonable way to accomplish this, he naturally supported it and spoke against efforts to the contrary.
Elbridge Gerry, it turned out, was thinking along the same lines as Hugh Williamson. When it came his turn to speak, he also made a point of drawing his colleagues’ attention to, “The danger in putting the essential rights of the Union in the hands of so small a number as a majority of the Senate, representing, perhaps, not one fifth of the people.” His math, as the cited figures make clear, was ever-so-slightly off. Even the smallest simple majority possible – being one Senator each from the eight smallest states – could claim to represent slightly over one-third of the total population. But Mr. Gerry can certainly be forgiven for not having had access to accurate demographic data. And his miscalculation, for that matter, did not lessen the cogency of his argument. A simple majority in the Senate, as Mr. Williamson had pointed out, might conceivably represent less than a majority of the American people. That such a small portion of the electorate – by choosing state legislators who, in turn, appointed Senators – should have been able to decide on behalf of the majority of their fellow citizens how such important matters as were regularly contained in a treaty of peace were ultimately settled truly was a most disagreeable notion. Erecting a two-thirds threshold might not have closed off this eventuality completely, but it would at least have made it substantially less likely from one treaty vote to the next.
At this point, the conversation at hand having thus far been concerned exclusively with ideal composition of a majority in the Senate for the purpose of approving a treaty, the parameters of the debate rather started to break down. Delegates who had previously held their tongues began openly questioning the basic premise of the discussion itself, others attempted to ram through their preferred proposals in spite of them having been previously denied, and the whole affair came to an abrupt halt with a final vote that more or less restored things to where they had been at the beginning of the day’s business. It made for a rather tumultuous exchange, to be sure, but one which nevertheless seemed to spur the formation of a final, durable consensus. Roger Sherman of Connecticut set things off in a rather dramatic fashion by making it know that, contrary to what his fellow delegates had been discussing for the better part of two days, he, for one, “Was agst. leaving the rights established by the Treaty of peace, to the Senate, & moved to annex a proviso that no such rights shd. be ceded without the sanction of the Legislature.” Such an admission placed Sherman well outside the conceptual boundaries of the discussion at hand. The assembled delegates had previously agreed that the Senate was best suited to evaluate and vote upon treaties negotiated by the executive in no small part because the House of Representatives was thought to be too large, too unwieldly, and too partial to the interests of the most populous states. And yet, in spite of the several votes that had been held which affirmed this consensus, here was Sherman attempting to tear it all down. And what’s more, he sought to do so without even providing an explanation. He did not say why he preferred not to leave the establishment of treaty rights to the Senate, or why he believed – against ample evidence to the contrary – that this responsibility was best allocated to the House. On the contrary, he simply asserted that he was against the former and for the latter, as if that was all his fellow delegates would need to hear.
Amazingly enough, this did seem to be all that Gouverneur Morris needed to hear in order to change his tune entirely from supporting a simple majority vote in the Senate to casting the Senate aside altogether. As recorded by Mr. Madison, Morris, “Seconded the ideas of Mr. Sherman.” But then Madison himself, who had been among the most strenuous in favor of allowing the Senate to vote upon treaties recommended by the executive – to the point of even suggesting that the Senate might vote upon treaties of peace entirely on its own initiative – made an apparent attempt to keep the conversation on track. He did this by observing, in reference to Mr. Sherman’s preference for allowing the House to weigh in on the establishment of treaty rights, “That it had been too easy in the present Congress to make Treaties altho’ nine States were required for the purpose.” The intention of this remark was presumably to draw attention to how easily the Continental Congress had approved of the treaties that had been placed before it over the course of the preceding decade in spite of the fact that nine of thirteen states were required to voice their agreement in order to do so. Granting that the idea of nine of thirteen states agreeing on anything during the 1780s is a fairly remarkable one, it nevertheless remains unclear precisely what else it was Madison was trying to communicate. Congress had ratified several international treaties during the period in question, notably those establishing relations with Sweden, Prussia, and Morocco. And at the same time, American diplomats had been involved in discussions with the governments of several other states in North Africa for the purpose of securing the release of hostages taken prisoner by local pirates and establishing the regular payment of tribute to stave off further attacks. But what had any of this to do with the fitness – or not – of Congress to ratify treaties? Did Madison find the terms of any of these particular agreements unpalatable? Was he embarrassed that his country had so quickly given in to the threat of piracy? Did he believe that the Senate, placed in the same role as the Continental Congress, would exercise a more suitable combination of fortitude and forbearance? Again, it is not clear, and the fact that Congress, under the auspices of the Articles of Confederation, voted by state rather than by representative makes it even less so. Why should he have argued against the example of the “present Congress” at all when the body most alike to it under the terms of the proposed constitution was to be his favored Senate?
Regardless of whatever Madison was actually trying to say, the evident effect of it was to close off the avenue of discussion that Roger Sherman had attempted to open. Though Gouverneur Morris had explicitly seconded his call for the House to become part of the treaty process, the vote which immediately followed did not take Sherman’s motion as its question. Rather, it returned to the proposal that Rufus King had put forward when the day’s business first began – i.e. that of excepting treaties of peace from the two-thirds majority requirement in the Senate. According to the resulting tally, King has read the room well. In spite of the fact that the previous day had ended with a majority in favor of allowing treaties of peace to be ratified in the Senate by a simple majority – per Mr. Madison – the majority now favored the opposite tack entirely. By a count of eight states to three – with only New Jersey, Delaware, and Maryland voting against – peace treaties were no longer to be except from the two-thirds threshold. But rather than move on to another topic in the face of this evident show of unity, several delegates instead persisted in attempting to secure a majority vote for their own, often directly contradictory proposals. Messrs. Wilson and Dayton, for example, immediately moved that the two-thirds threshold – which the majority of their colleagues had just voted to uphold – be struck down entirely, resulting in another vote by which the assembled delegates – to the tune of nine against, one in favor, and one abstention – showed their attachment to the status quo. This same exchange arguably repeated itself a moment later when Messrs. Rutledge and Gerry introduced yet another proposal which their colleagues then proceeded to vote down by a wide margin. In this case, the purpose of the motion was to ensure that, “No Treaty be made without the consent of 2/3 of all the members of the Senate-according to the example of the present Congs.” But when it came to a vote, the same numbers appeared as before: eight opposed, three in favor.
The intent of this last motion, it bears noting, was specifically to define a majority in the Senate for the purpose of ratifying international treaties. As Mr. Williamson had pointed out at some point earlier in the day’s discussion, a simple majority, under tradition quorum rules, would amount to only eight Senators in total. A two-thirds threshold would raise this number to nine, but this was still a very small number in light of the potential scope of a treaty of peace. Rutledge and Gerry’s proposal would have abandoned the traditional quorum rule – whereby a legislative body may transact business as normal as long as at least fifty-one percent of its members are present – and instead required a majority of, “2/3 of all the members of the Senate” for a vote of approval. This would have raised the threshold on all successful treaty votes from a minimum of nine votes to a minimum of seventeen, thereby increasingly the likelihood of a truly representative majority. This, recall, is exactly what Mr. Williamson had argued in favor of, and what Mr. Gerry had seconded, scant moment before. Rutledge and Gerry’s proposal would accordingly have further solidified a rule which their colleagues had only just agreed to adopt – or re-adopt, as the case may be. But while the fact that it was voted down might seem to indicate that the majority was as swiftly turning against the two-thirds rule as they had only recently voted in its favor, the truth was likely somewhat more mundane. Though there seemed to be – for the most part – substantial agreement among the assembled delegates that a two-thirds threshold on Senate treaty votes was indeed preferable to one which would have given the same power to only a simple majority, it was also undeniable – at least for the foreseeable future – that distance and context was bound to affect how many Senators might be in a position to report for a given vote.
This was, after all, the late 18th century. Not only was road infrastructure spotty at best – especially in rural areas – but travel was virtually impossible between certain regions of the country during certain times of the year. Bear this in mind, it would not be all that difficult to imagine a scenario in which fewer than seventeen Senators were able to appear for a treaty vote but among whom a majority still existed in favor of approval. Suppose that, after a long and arduous process of negotiation, a treaty is finally sealed between the United States and some foreign belligerent. A draft of the treaty is delivered at the first possible opportunity for the appraisal and approval of Congress, but it also happens to be the beginning of the winter season. Congress is out of session, all the various Senators have gone home, and a special session will need to be called in order for the vote to be held. No one wants the conflict in question to drag on any longer than it has, so a session is indeed called and summons are dispatched. But as a result of a sudden snow squall, blocked mountain passes, or generally beastly winter conditions, only ten or twelve Senators are able to make the journey in a reasonable amount of time. Under traditional quorum rules, these twelve are enough to transact business. And, as it happens, ten of these twelve have also made it clear their intention to approve the treaty that has been submitted to their scrutiny. Under the terms of the Constitution, however – thanks to Messrs. Rutledge and Gerry – only, “2/3 of all the members of the Senate” counts as a majority for the purposes of approving a treaty. Ten votes are not enough. The Senators could wait, of course, to see if any more of their colleagues arrive. But while military campaigns in the 18th century tended to be put on “pause” during the winter, there was no guarantee that the resulting delay might not cost more American soldiers their lives. And even if no fighting occurred in the meantime, the soldiers that had already been dispatched would still need to be paid. One way or another, delay would come at an expense.
Without knowing for certain that
this kind of hypothetical was on the minds of the assembled delegates when they
voted to reject the proposal of Rutledge and Gerry, it would not have been in
the least bit out of character if it had. More than once, the men who answered
the summons to Philadelphia in the spring of 1787 had made plain their
awareness of the need to balance principle with pragmatism. And so, while most
of them might have agreed with Mr. Williamson’s assessment that the Senate’s
tendency to distort the actual weight of a majority ought to be taken into
account when allocating the power to approve treaties of peace, they were also
doubtless conscious of the practical implications of erecting an absolute
two-thirds threshold without any allowance for circumstance. To be sure, the
set of conditions necessary to create the kind of situation described above
were unlikely to ever coincide. Then again, so were the circumstances which
might produce only a nine-member two-thirds majority under the traditional
quorum rule in the Senate. In consequence, it no doubt appeared to the majority
of these delegates then present that the best thing to do was simply maintain
the two-thirds threshold while refraining from carving out an exception to the
quorum rule. There may have remained, under the circumstances, the possibility
of an unrepresentative majority, but such was almost certainly bound to be the
case at some point in the history of Congress under the Constitution. Rather
than choose to address every minute chance of something potentially going wrong
– and creating, in the process, a framework of government so rigid as to very
soon become constrictive – the Framers instead opted for a course of
flexibility, simplicity, and durability.
The next several sets of motions and votes that followed seemed very much to prove out the strength of this collective conviction. After the defeat of Rutledge and Gerry’s proposal, Roger Sherman then asserted that, “No Treaty be made without a Majority of the whole number of the Senate.” And while Mr. Williamson attempted to shoot this motion down by observing – rather pointedly – that, “This would be less security than 2/3 as now required,” the question was nevertheless put to a vote after a seconding by the aforementioned Mr. Gerry. After the resulting tally came out once again in the negative – albeit by a close margin of six against and five in favor – James Madison opted to keep the ball rolling by offering his own amendment along much the same lines. Specifically, he moved that, “A Quorum of the Senate consist of 2/3 of all the members.” Without calling into question the sincerity of the man’s underlying motives, this proposal on the part of Madison was plainly and inarguably flawed. His purpose, no doubt, was to ensure that no Senate meeting was ever gaveled into session without it being possible for the attending members to approve a treaty. If two-thirds of the total members were required to be present before any business could ever be transacted, there would accordingly never come a time when it was mathematically impossible for a two-thirds majority to coalesce. The only trouble with this plan, of course, was that it would prevent the Senate from acting in any official capacity unless two-thirds of its members were present. Granting that this might not seem such a high bar to clear here at the beginning of the 21st century, it most certainly would have been at the end of the 18th.
As discussed above, long distance travel at the time that the various delegates were meeting in Philadelphia could be an exceptionally arduous undertaking, due in equal parts to the effects of inclement weather, the slow average speed of most modes of transportation, and the relatively primitive state of contemporary public infrastructure. Bearing all of this in mind, it would have been quite unlikely that a national legislative body like the Senate – which drew people from across the nation to one single location at varying distances from their homes – would have been gaveled into session with its full membership present more than once in every handful of years. Rather than hazard the journey on anything like a frequent basis – at risk of life and limb, potentially, or at least to the detriment of their private interests and estates – Senators whose homes states were particularly distant from the nation’s capital would doubtless have appeared only as often as they felt was absolutely necessary and left their colleagues nearer at hand to carry out the chamber’s day-to-day business. In consequence, while a simple majority of Senators might manage to attend to their official responsibilities with some regularity, a two-thirds majority was bound to be a rarer occurrence. This basic fact was why the quorum rule was erected in the first place. Truly representative government is a noble ambition, and one worthy of every reasonable effort to see it through. But before the era of rapid, cheap, and widely available transportation – before what came to be known as the “annihilation of time and space” by the introduction of steam-powered travel in the 19th century – it was functionally unavoidable that any given representative assembly was going to operate at less than full membership for most of its life. Establishing a means by which said assembly could operate at partial strength without disregarding the essential principle of majority rule was accordingly essential.
Madison’s proposal flew in the face of this basic admission to lived reality. If the Senate could only operate if two-thirds of its members were present, how often would it ever be gaveled into session? Perhaps, under such conditions, it might meet once in a given year, vote upon every piece of legislation that had been placed on its docket, and then split apart again for another twelve month period. Meeting so infrequently, one wonders how closely the assembled Senators would be inclined – or able – to scrutinize the items placed before them. Would they pour over every line of the bills and treaties submitted for their approval, or would they fairly quickly develop an expedited procedure intended to get their various members back to their homes as soon as possible? And what if, under these specific circumstances, a special session was summoned six months after the previous regular session for the purpose of ratifying a treaty of peace? How many Senators would make the journey right in the middle of their extended recess? A majority? Entirely possible. A two-thirds majority? Substantially unlikely. But while the traditional quorum rule would allow just a bare majority to proceed to a vote, Madison’s two-thirds quorum would require a much rarer assemblage. In consequence, while Madison’s intention, once again, was both plain and theoretically sound, his attempt to counter the potentially unrepresentative nature of a simple Senate majority would have almost certainly, if approved, made the Senate far less effective as a whole.
The events which immediately followed the introduction of Madison’s aforementioned motion would seem to demonstrate the extent to which his colleagues were aware of its less desirable implications. Gouverneur Morris, for one thing, shot back that the Virginian’s plan, “Will put it in the power of one man to break up a Quorum.” Granting that Madison then very astutely pointed out that, “This may happen to any Quorum [,]” the mood of those assembled seemed nevertheless to be arrayed against him. The subsequent vote proved this out, though by a surprisingly slim margin. Of the eleven state delegations that cast a ballot, six voted against the motion – New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, and Delaware – and five voted in favor – Maryland, Virginia, North Carolina, South Carolina, and Georgia. While this came to the same total as the previous vote on Roger Sherman’s cited motion, the composition of these two specific groups would seem to be a significant one. The majority, who voted against Madison’s proposal, was comprised entirely of northern states. The minority, who voted against it, was comprised entirely of states in the south. The northerners in the room, whose states increasingly favored commerce over agriculture, doubtless anticipated the passage of more trade treaties with foreign nations. In consequence, perhaps they viewed any amendment that would hamper the Senate’s ability to approve such agreements as antithetical to the whole concept of a strong central government capable of advocating on behalf of its citizens’ economic interests. Meanwhile, the southerners then present, whose states favored agriculture over commerce and saw territorial expansion as a necessary facilitator of the former, quite likely viewed foreign trade agreements as a source of concerted anxiety. Outnumbered in the Senate – if only by a handful of votes – they may have accordingly favored such measure as would keep that same body from easily approving bi-lateral treaties. In this way, they might have hope to prevent their northern counterparts from giving away land on the western frontier along the disputed Mississippi River, or more generally from granting trade concession which favored northern commerce at the expense of southern farming.
Whatever the logic that underpinned this final tally, it can at least be stated for a fact that it marked the end of the discussion of the Senate’s power to make treaties. After many exchanges and many votes spread out over the course of two days of debate, the assembled delegates had finally settled upon a mechanism by which the upper house of Congress was to provide input into foreign agreements. Some of the Framers were more inclined to hold firm to certain philosophical principles, specifically as they declined to grant the executive too much autonomy or power or sought to ensure that a majority in the Senate represented a majority of the American people. Others, meanwhile, made a point of drawing attention to certain practical considerations, from the unique suitability of the executive to attend to foreign affairs to the need to balance majoritarian principles with material circumstances. In the end, the final outcome represented a balance of each of these approaches. Indeed, this sense of compromise is surely what led the assembled delegates to grant treaty-making power to the Senate in the first place. Such agreements could not be put to referenda. Such a mechanism was far too unwieldly to be practical. And the House of Representatives, while true to its name, was both too large to be very efficient and was bound to be dominated by the largest states seated therein. The executive, it was true, might have handled matters themselves, but this would place a tremendous amount of additional power in the hands an already powerful officer of state. The Senate accordingly represented both the pragmatic choice and the most philosophically sound. It was less unwieldly than the House and more deliberate than the executive; simple thresholds could be put in place to make the emergence of a true majority more likely; and it could even punish a delinquent executive by other means if they were determined to abuse their diplomatic responsibilities. No one, to be sure, was prepared to argue that thus empowering the Senate represented the perfect solution to the issue at hand. But, then again, it didn’t need to be. So long as it met enough of the Framers’ philosophical and practical requirements – and so long as its most obvious flaws were relatively unlikely to make themselves known – then it would remain unchallenged in its role as co-administrator of foreign relations.
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