The 17th Amendment’s effect on the Senate’s treaty power makes for much the same kind of story as that of its effect upon the power of appointment. That is, while state assemblies did not always take a concerted interest in the terms of the international agreement upon which it was the Senate’s responsibility to weigh in, they did do so enough times for the ratification of the amendment to make a difference. In 1898, for example, as the Spanish-American War was coming to a close, a number of state assemblies sent explicit instructions to their Senators to vote in favor of the peace treaty that was then under consideration. In light of the terms of said treaty, this might seem like a rather odd directive to have to deliver. Not only did the document guarantee the independence of Cuba from Spain – the ostensible goal for which the United States had been fighting – but it also mandated the transfer of the Spanish colonies of Puerto Rico, the Philippines, and Guam to immediate American control. For three months’ work, one could hardly imagine a more favorable outcome. And yet, it was the scale of the American victory – the magnitude of the spoils which the United States was preparing to reap – that ended up provoking uncertainty among the membership of the Senate. The Republican Party, in spite of the fact that it controlled both houses of Congress and the office of President, was divided at that time between what might be called a mainstream wing of pro-business, pro-gold standard, territorial expansionists and a smaller but no less vocal contingent of populists, pro-silverites, and anti-imperialists. Granted, the pro-silver faction – who had gone so far as to support William Jennings Bryan (1860-1925), the Democratic nominee for President, during the Election of 1896 – was in the process of fading away, but there nonetheless remained a fairly avid group of Republican Senators who looked in particular upon the foreign policy of the McKinley Administration with a sense of skepticism verging on horror.
The Republican Senator from Massachusetts,
the aforementioned George Frisbie Hoar, was one such dissident voice. In 1897,
as the United States was preparing to finally annex the Hawaiian Islands after
a years-long back and forth between Republican and Democratic administrations,
Hoar not only met with a deputation of Hawaiian leaders who had come to
Washington to oppose the act, he personally presented their written petition to
Congress and went out of his way to engineer the defeat of the relevant treaty
when it was submitted to the Senate. Among those who supported Hoar in this
effort was South Dakota Republican William F. Pettigrew (1848-1925), a former
silverite who had previously represented the unincorporated Dakota Territory in
the House of Representatives. As the aforementioned conflict between the United
States and Spain was winding down in the summer of 1898, Pettigrew gave an
impassioned speech in response to the efforts of President McKinley and his supporters
to once again annex the far-flung Pacific islands, this time by way of a joint
resolution of Congress. Doubtless fully aware that his cause was lost – joint
resolutions require only the support of a simple majority, and Hawaii had since
proven its usefulness to the United States Navy during its recent campaign in
the Philippines – the South Dakotan accordingly declined to spare his
colleagues the full force of his disillusioned eloquence. “The American flag
went up on Hawaii in dishonor [,]” he said, referring to the coup d’état that
had brought down the Hawaiian Kingdom in 1893. “It came down in honor, and if
it goes up again now it will go up in infamy and shame and this Government will
join the robber nations of the world.”
While the fact that the relevant resolution
was ultimately passed – thus transforming the ad hoc Hawaiian Republic into the
unincorporated Hawaii Territory – is not in the least bit surprising, certain
of the effects of the thing are nevertheless worth reflecting upon. The final
vote took place – in what was then no doubt judged to be an auspicious bit of
happenstance but which now seems rather gross – on July 4th, 1898.
The Spanish-American War was at that point still ongoing, with hostilities not
set to conclude until the middle of the following month. The most recent federal
elections, meanwhile, had taken place almost two years prior, in November of
1896. Those former Silver Republicans who had not defected to the Democrats had
mostly reintegrated themselves into the GOP proper, it is true, but there
nevertheless remained a small group of Congressmen and Senators who still had
reason to feel at odds with the mainstream of their party. And while the war
with Spain had helped to solidify the dominance of President McKinley’s brand
of Republican Party politics, the conflict over Hawaii ensured – at least for
the moment – that some manner of breach would remain. When a treaty securing
peace between the American republic and the Spanish kingdom was thereafter
submitted to the Senate following its signing in Paris in December of 1898, it
accordingly stood to reason that some of the members of the Republican Senate
majority would be no mood to be cooperative.
Senator Hoar, unsurprisingly, led the
charge against ratification. Summing up his position, he declared that, “This
Treaty will make us a vulgar, commonplace empire, controlling subject races and
vassal states, in which one class must forever rule and other classes must
forever obey.” He was not joined in this effort by very many of his Senate
colleagues, it must be said. Fellow New England Republican Eugene Hale
(1836-1918) and Missouri Democrat George Graham Vest (1830-1904) were assuredly
the most prominent among them. But Hoar’s position did enjoy the support of a
substantial segment of the American public. In the form of the American
Anti-Imperialist League, a host of influential figures in the worlds of
literature, politics, the arts, and industry – among them noted industrialist
Andrew Carnegie (1835-1919), former President Grover Cleveland, author and
humorist Mark Twain (1835-1910), and union leader Samuel Gompers (1850-1924) – came
out against the creation of a globe-spanning American empire. With this kind of
backing, and in the midst of discussions on the supposed benefits of “Christian
civilization” and whether subject peoples would have rights under the
Constitution, it therefore doubtless seemed more than a little uncertain from
outside Washington whether or not the treaty would ultimately be approved or
defeated.
It was for this reason, no doubt, that certain
Republican-controlled state assemblies made a point of sending instructions to
their representatives in the Senate. California did so, for one, as the debate
over the treaty dragged on into the early months of 1899. Evidently, the
Republican majority in Sacramento felt there was some cause to worry about the
manner in which either Senator Stephen White (1853-1901) or Senator George
Perkins (1839-1923) intended to cast their vote. As did the Republican legislators
who formed the majority in the South Dakota state assembly. They may not have
had much cause for concern as to the probable actions of Senator James H. Kyle
(1854-1901), a man whom history records as an avid supporter of the war with
Spain, but such was demonstrably not the case when it came to the
aforementioned Richard Pettigrew. In addition to being something of an
anti-imperialist, it should be noted, Pettigrew was also an unapologetic
anti-capitalist who famously wrote in his book Triumphant Plutocracy (1921)
that, “Capital is stolen labor and its only function is to steal more labor.”
More to the point, he also observed in that same tome – of one of the spoils of
the Spanish-American War – that, “The sum and substance of the conquest of
the Philippines is to find a field where cheap labor can be secured, labor
that does not strike, that does not belong to a union, that does not need an
army to keep it in leading strings, that will make goods for the trusts of this
country.” Within the context of a Republican Party increasingly dominated by
expansionists and capitalists, a man who could make such bold and damning
claims was bound to arouse his share of anxiety. No wonder, then, that the same
legislative body which had sent him to the Senate later tried to reign him in.
The Treaty of Paris (1898) was ultimately
ratified, of course. By a margin of 57-27, the United States Senate voted to
take control of the Philippines, Puerto Rico, and Guam, and to oversee the
eventual creation of a (semi) independent Cuban government. The opposition,
when the votes were tallied, came principally from the minority Democrats,
though two Republican Senators did elect to carry their dissent to its final
conclusion. One, surprising nobody, was George Frisbie Hoar. The other, no less
foreseeable, was the aforementioned Eugene Hale. Richard Pettigrew, evidently,
was convinced to stow his dislike for the prospect of the American republic
becoming an empire in the style of contemporary Europe. His did not vote to
reject the treaty, though his declarations before and after the event would
seem to indicate that he normally would have. And for his troubles, his
benefactors in the South Dakota legislature then declined to re-elect him in
1900. One wonders how many other Republican Senators underwent a similar
experience. How many, that is, ultimately agreed to vote against their
conscience only to be rewarded for their service by being tossed aside? And
what if they hadn’t been accordingly instructed? Fifty-seven votes was just
over the two-thirds majority required for the Treaty of Paris to receive the
assent of the Senate. What if the state legislatures had had no power over the
Senate? What if Pettigrew and a handful of other Republicans had voted to
reject to treaty? Would the war with Spain continued? Would the agreement have
been re-negotiated? Would the United States have proceeded to establish its
sovereignty over the aforementioned territories? In light of the subsequent
history of Puerto Rico and the Philippines in particular, an alternative
outcome such as this would seem to represent a drastic diversion from American
history as we know it. And while the 17th Amendment came too late to
alter this event, the mere fact of it would seem to indicate that subsequent
treaty votes have very likely been affected.
For somewhat more recent examples of how
the 17th Amendment has altered the expression of the Senate’s treaty
power – or rather how the lack of state influence over the treaty power has affected
the state/federal relationship – consider some of responses elicited by the
General Agreement on Tariffs and Trade (GATT) treaty which gave rise to the
World Trade Organization (WTO) and the subsequent ratification of the North
American Free Trade Agreement (NAFTA), both in 1995. Leading up to the vote on
the former, the National Conference of State Legislatures – a non-partisan
organization formed in 1975 in order, to quote its own literature, “To advance
the effectiveness, independence and integrity of legislatures and to foster […]
especially in support of state sovereignty and state flexibility and protection
from unfunded federal mandates and unwarranted federal preemption” – made a
point of supporting the agreement while also staking out a qualification. The
NCSL was in favor of the creation of the WTO, it said, “As long as the pact
includes guarantees for state legislative authority and principles of
federalism.” Shortly thereafter, as the Senate prepared to consider the treaty
which would go on to establish NAFTA, this same organization offered a further
suggestion: the creation of an official liaison between the states and the U.S.
Trade Representative. In order, “To best protect states measures,” the proposal
declared at the time, “State legislatures should be part of the state-federal
communications loop.”
One cannot help but regard these kinds of
statements with a certain amount of amusement. Because what purpose did the
pre-1913 Senate really serve if not to ensure that the state legislatures were,
“Part of the state-federal communications loop [?]” What other purpose did the
Framers have in mind when they mandated that the state assemblies would appoint
the membership of the Senate than the protection of, “State legislative
authority and [the] principles of federalism [?]” What was the NCSL pining
after – whether its members knew they were doing it or not – but a kind of
reversion to the status quo before the ratification of the 17th
Amendment? They felt the absence of a state voice in the midst of high-level
trade discussions and asked whether provision might be made to address their
concerns. Would not the pre-1913 Senate have addressed this need directly? If
the state legislatures had retained control over the election of Senators,
there would seemingly have been no need for them to try to insert themselves
into the treaty process. Through their ability to appoint and instruct
Senators, the members of the state assemblies could have asserted themselves as
much as they wished. Granted, not every Senator would have done as they were
told, particularly if a transfer of power at the state level assured their
defeat when next they faced reelection. But as the cited example of Richard
Pettigrew would seem to prove, sometimes even the most vociferous Senators
could successfully be brought to heel. One is further given cause to wonder
whether an organization like the NCSL would have been founded in the first
place in the event that the 17th Amendment was never ratified. If
the Senate still existed for the purpose of allowing the state governments to
influence federal policy, what possible need would there have been for the
creation of a lobby group whose purpose is to seek alternative means of
accomplishing this same goal? Indeed, absent the 17th Amendment, the
whole tenor of the state/federal relationship would most assuredly be quite
different.
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