FReeper Book Club: The Debate over the Constitution, Federalist #75

While Hamilton turned to Jay to explore the Senate’s role in making treaties, he himself addresses the President’s responsibilities in this regard.

² The President is to have power, “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.”

³ Though this provision has been assailed on different grounds with no small degree of vehemence, I scruple not to declare my firm persuasion that it is one of the best digested and most unexceptionable parts of the plan.

⁴ One ground of objection is the trite topic of the intermixture of powers, some contending that the President ought alone to possess the power of making treaties, others that it ought to have been exclusively deposited in the Senate.

⁵ Another source of objection is derived from the small number of persons by whom a treaty may be made.

⁶ Of those who espouse this objection, a part are of opinion that the House of Representatives ought to have been associated in the business, while another part seem to think that nothing more was necessary than to have substituted two-thirds of all the members of the Senate to two-thirds of the members present.

⁷ As I flatter myself the observations made in a preceding number upon this part of the plan must have sufficed to place it to a discerning eye in a very favorable light, I shall here content myself with offering only some supplementary remarks, principally with a view to the objections which have been just stated.

⁸ With regard to the intermixture of powers, I shall rely upon the explanations already given in other places of the true sense of the rule upon which that objection is founded, and shall take it for granted as an inference from them that the union of the Executive with the Senate in the article of treaties is no infringement of that rule.

⁹ I venture to add that the particular nature of the power of making treaties indicates a peculiar propriety in that union.

¹⁰ Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition, for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them.

¹¹ The essence of the legislative authority is to enact laws, or in other words to prescribe rules for the regulation of the society, while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate.

¹³ It relates neither to the execution of the subsisting laws nor to the enaction of new ones, and still less to an exertion of the common strength.

¹⁴ Its objects are contracts with foreign nations which have the force of law, but derive it from the obligations of good faith.

¹⁵ They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign.

¹⁶ The power in question seems therefore to form a distinct department and to belong properly neither to the legislative nor to the executive.

¹⁷ The qualities elsewhere detailed as indispensable in the management of foreign negotiations point out the executive as the most fit agent in those transactions, while the vast importance of the trust and the operation of treaties as laws plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.

¹⁸ However proper or safe it may be in governments where the executive magistrate is an hereditary monarch to commit to him the entire power of making treaties, it would be utterly unsafe and improper to entrust that power to an elective magistrate of four years’ duration.

¹⁹ It has been remarked upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers.

²⁰ 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.

²¹ An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth.

²² An ambitious man might make his own aggrandizement by the aid of a foreign power the price of his treachery to his constituents.

²³ 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.

²⁴ To have entrusted the power of making treaties to the Senate alone would have been to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations.

²⁵ It is true that the Senate would in that case have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former.

²⁶ Besides this, the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and of course would not be able to act with an equal degree of weight or efficacy.

²⁷ While the Union would from this cause lose a considerable advantage in the management of its external concerns, the people would lose the additional security which would result from the cooperation of the Executive.

²⁸ Though it would be imprudent to confide in him solely so important a trust, yet it cannot be doubted that his participation would materially add to the safety of the society.

²⁹ It must indeed be clear to a demonstration that the joint possession of the power in question by the President and Senate would afford a greater prospect of security than the separate possession of it by either of them.

³⁰ And whoever has maturely weighed the circumstances which must concur in the appointment of a President will be satisfied that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom as on that of integrity.

³¹ The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties.

³² The fluctuating and, taking its future increase into the account, the multitudinous composition of that body forbid us to expect in it those qualities which are essential to the proper execution of such a trust.

³³ Accurate and comprehensive knowledge of foreign politics, a steady and systematic adherence to the same views, a nice and uniform sensibility to national character, decision, secrecy and dispatch – are incompatible with the genius of a body so variable and so numerous.

³⁴ The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection.

³⁵ The greater frequency of the calls upon the House of Representatives and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project.

³⁶ The only objection which remains to be canvassed is that which would substitute the proportion of two-thirds of all the members composing the senatorial body to that of two-thirds of the members present.

³⁷ It has been shown under the second head of our inquiries that all provisions which require more than the majority of any body to its resolutions have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority.

³⁸ This consideration seems sufficient to determine our opinion that the Convention have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community.

³⁹ 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.

⁴⁰ And the history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder.

⁴¹ Proofs of this position might be adduced from the examples of the Roman tribuneship, the Polish Diet and the States-General of the Netherlands, did not an example at home render foreign precedents unnecessary.

⁴² To require a fixed proportion of the whole body would not in all probability contribute to the advantages of a numerous agency better than merely to require a proportion of the attending members.

⁴³ The former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance.

⁴⁴ The latter, by making the capacity of the body to depend on a proportion which may be varied by the absence or presence of a single member, has the contrary effect.

⁴⁵ And as by promoting punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other while there would be much fewer occasions of delay.

⁴⁶ It ought not to be forgotten that under the existing Confederation two members may, and usually do, represent a state, whence it happens that Congress, who now are solely invested with all the powers of the Union, rarely consist of a greater number of persons than would compose the intended Senate.

⁴⁷ If we add to this, that as the members vote by states and that where there is only a single member present from a state, his vote is lost, it will justify a supposition that the active voices in the Senate, where the members are to vote individually, would rarely fall short in number of the active voices in the existing Congress.

⁴⁸ When in addition to these considerations, we take into view the cooperation of the President, we shall not hesitate to infer that the people of America would have greater security against an improper use of the power of making treaties under the new Constitution than they now enjoy under the Confederation.

⁴⁹ And when we proceed still one step further and look forward to the probable augmentation of the Senate by the erection of new states, we shall not only perceive ample ground of confidence in the sufficiency of the members to whose agency that power will be entrusted, but we shall probably be led to conclude that a body more numerous than the Senate would be likely to become, would be very little fit for the proper discharge of the trust.

Hamilton is nearly finished with his methodical overview of the Executive Branch and has now come to the place already addressed by John Jay in Federalist #64, dealing with the power of making treaties with foreign powers. So well does he consider that Jay has dealt with the topic (7) that he decides to restrict his remarks to two of the principal objections that he regards as yet to be satisfactorily addressed. The first of these is related to the requirement that both Executive and Senate be involved in the making and approval of such treaties. To the critics this appears to violate the principle of the separation of powers.

⁴ ...some contending that the President ought alone to possess the power of making treaties, others that it ought to have been exclusively deposited in the Senate.

Hamilton does not consider treaties to be legislation, thus justifying the involvement of a non-legislative branch of the government (11). It is to him more akin to forming a contract with a foreign power (14). Hence although a treaty may possess the force of law, it is not “prescribed by sovereign to the subject, but...between sovereign and sovereign” (15). The formulation “between sovereign and subject” may be regarded as somewhat unfortunate in the context of a nation of free men, and Hamilton’s critics would be quick to point this out as an indication of his own autocratic sensibilities. Nevertheless, the distinction has been drawn.

So why not place the entire matter in the hands of the President? It had precedents, to be sure, in every monarchical government of the day, wherein the Crown was personally responsible for the commitment of his nation to treaties with foreign nations. But, Hamilton objects, such seats are hereditary and for life, ensuring that the monarch be exquisitely sensitive to the outcome of such treaties. Not so for the President, “an elective magistrate of four years’ duration” (18), who, because of this, may find himself open to bribery without the necessity to suffer the consequences (20).

Then why not place the matter into the hands of the Senate? Primarily, to provide a point of focus on the part of foreign negotiators (26), as well as a sense of personal responsibility on the part of the Executive charged with the treaty’s enforcement.

What of the House of Representatives? For two reasons – Jay has already addressed this and Hamilton is only summarizing – first, the “fluctuating and...multitudinous composition of that body” (32) makes it impractical for reasons both political and logistical (35), and second, the necessity for “accurate and comprehensive knowledge of foreign politics” (33), which Hamilton clearly does not regard as possible in a body elected every two years and distastefully close to the people. Thus the participation of both President and Senate is, according to Hamilton, a compromise designed to fit the unique requirements of this sort of proceeding.

The second objection he wishes to address regards the “small number of persons by whom a treaty may be made” (5). Making that number one in the person of the President, Hamilton has already addressed, but what of the oddly worded requirement that a treaty be approved by “two-thirds of the Senators present” instead of two-thirds of the overall number? The answer is dispatch, or more accurately the lack of dispatch caused by the necessity to assemble the Senate in its full number and the ability of a small number of Senators to delay or thwart the proceeding merely by making themselves absent (39). It is no idle speculation: Hamilton cites that behavior in Roman history as well as the more recent behavior of the Polish Diet and the States-General of the Netherlands (41), both of which bodies Hamilton has been bitterly critical in previous papers for sacrificing the overall interest of their respective nations to the tumult of local and regional politics. It is also a spur to attendance and punctuality (43, 45) in the Senate. It is, in fact, a system superior to the occasionally dilatory one within the existing Confederation (46).

There was good reason for caution. As Jay had already pointed out, the new government will inherit existing treaties with no fewer than six foreign nations, all of which, under Article VI, will remain in force, as well they might, for the Treaty of Paris that ended the war was one of them. The new nation would need to turn its face outward as well as inward, and if the critics were alarmed at the ability to do so placed in a single Executive’s hands, they must have been reassured by those hands being the sober and skeptical George Washington’s, whose warning against “foreign entanglements” would echo eight years later in his Farewell Address.

To: 14themunny; 21stCenturion; 300magnum; A Strict Constructionist; abigail2; AdvisorB; Aggie Mama; ...

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2 posted on 01/03/2011 7:58:29 AM PST by Publius (No taxation without respiration.)

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