FReeper Book Club: The Debate over the Constitution, Federalist #64

When it comes to the role of the Senate in treaties, who better to comment than one of America’s premier diplomats? John Jay weighs in on the issue of foreign relations.

² It is a just, and not a new, observation that enemies to particular persons, and opponents to particular measures, seldom confine their censures to such things only in either as are worthy of blame.

³ Unless on this principle, it is difficult to explain the motives of their conduct who condemn the proposed Constitution in the aggregate and treat with severity some of the most unexceptionable articles in it.

⁴ The second section gives power to the President, ”by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.”

⁵ The power of making treaties is an important one, especially as it relates to war, peace and commerce, and it should not be delegated but in such a mode and with such precautions as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good.

⁶ The Convention appears to have been attentive to both these points: they have directed the President to be chosen by select bodies of electors to be deputed by the people for that express purpose, and they have committed the appointment of senators to the state legislatures.

⁷ This mode has in such cases vastly the advantage of elections by the people in their collective capacity where the activity of party zeal, taking the advantage of the supineness, the ignorance and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors.

⁸ As the select assemblies for choosing the President, as well as the state legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence.

¹⁰ By excluding men under 35 from the first office and those under 30 from the second, it confines the electors to men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism which, like transient meteors, sometimes mislead as well as dazzle.

¹¹ If the observation be well founded that wise kings will always be served by able ministers, it is fair to argue that as an assembly of select electors possess in a greater degree than kings the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment.

¹² The inference which naturally results from these considerations is this: that the President and senators so chosen will always be of the number of those who best understand our national interests, whether considered in relation to the several states or to foreign nations, who are best able to promote those interests and whose reputation for integrity inspires and merits confidence.

¹⁴ Although the absolute necessity of system in the conduct of any business is universally known and acknowledged, yet the high importance of it in national affairs has not yet become sufficiently impressed on the public mind.

¹⁵ They who wish to commit the power under consideration to a popular assembly composed of members constantly coming and going in quick succession seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects which require to be steadily contemplated in all their relations and circumstances, and which can only be approached and achieved by measures which not only talents, but also exact information and often much time, are necessary to concert and to execute.

¹⁶ It was wise, therefore, in the Convention to provide not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns and to form and introduce a a system for the management of them.

¹⁷ The duration prescribed is such as will give them an opportunity of greatly extending their political information and of rendering their accumulating experience more and more beneficial to their country.

¹⁸ Nor has the Convention discovered less prudence in providing for the frequent elections of senators in such a way as to obviate the inconvenience of periodically transferring those great affairs entirely to new men, for by leaving a considerable residue of the old ones in place, uniformity and order, as well as a constant succession of official information, will be preserved.

¹⁹ There are a few who will not admit that the affairs of trade and navigation should be regulated by a system cautiously formed and steadily pursued, and that both our treaties and our laws should correspond with and be made to promote it.

²⁰ It is of much consequence that this correspondence and conformity be carefully maintained, and they who assent to the truth of this position will see and confess that it is well provided for by making concurrence of the Senate necessary both to treaties and to laws.

²¹ It seldom happens in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate despatch are sometimes requisite.

²² These are cases where the most useful intelligence may be obtained if the persons possessing it can be relieved from apprehensions of discovery.

²³ Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives, and there doubtless are many of both descriptions who would rely on the secrecy of the President, but who would not confide in that of the Senate and still less in that of a large popular assembly.

²⁴ The Convention have done well, therefore, in so disposing of the power of making treaties that although the President must in forming them act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest.

²⁵ They who have turned their attention to the affairs of men must have perceived that there are tides in them, tides very irregular in their duration, strength and direction, and seldom found to run twice exactly in the same manner or measure.

²⁶ To discern and to profit by these tides in national affairs is the business of those who preside over them, and they who have had much experience on this head inform us that there frequently are occasions when days – nay, even when hours – are precious.

²⁷ The loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs may turn the most favorable tide into a course opposite to our wishes.

²⁸ As in the field, so in the cabinet there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them.

²⁹ So often and so essentially have we heretofore suffered from the want of secrecy and despatch that the Constitution would have been inexcusably defective if no attention had been paid to those objects.

³⁰ Those matters which in negotiations usually require the most secrecy and the most despatch are those preparatory and auxiliary measures which are not otherwise important in a national view than as they tend to facilitate the attainment of the objects of the negotiation.

³¹ For these the President will find no difficulty to provide, and should any circumstance occur which requires the advice and consent of the Senate, he may at any time convene them.

³² Thus we see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity and deliberate investigations on the one hand, and from secrecy and despatch on the other.

³³ But to this plan, as to most others that have ever appeared, objections are contrived and urged.

³⁴ Some are displeased with it, not on account of any errors or defects in it, but because as the treaties when made are to have the force of laws, they should be made only by men invested with legislative authority.

³⁵ These gentlemen seem not to consider that the judgments of our courts and the commissions constitutionally given by our governor are as valid and as binding on all persons whom they concern as the laws passed by our Legislature.

³⁶ All constitutional acts of power, whether in the Executive or in the Judicial department, have as much legal validity and obligation as if they proceeded from the Legislature, and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is that the people may with much propriety commit the power to a distinct body from the Legislature, the Executive, or the Judicial.

³⁷ It surely does not follow that because they have given the power of making laws to the Legislature, that therefore they should likewise give them the power to do every other act of sovereignty by which the citizens are to be bound and affected.

³⁸ Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme laws of the land.

³⁹ They insist, and profess to believe, that treaties, like acts of assembly, should be repealable at pleasure.

⁴⁰ This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear.

⁴¹ These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it.

⁴² They who make laws may without doubt amend or repeal them, and it will not be disputed that they who make treaties may alter or cancel them, but still let us not forget that treaties are made, not by only one of the contracting parties, but by both, and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them.

⁴³ The proposed Constitution, therefore, has not in the least extended the obligation of treaties.

⁴⁴ They are just as binding and just as far beyond the lawful reach of legislative acts now as they will be at any future period or under any form of government.

⁴⁵ However useful jealousy may be in republics, yet when like bile in the natural, it abounds too much in the body politic, the eyes of both become very liable to be deceived by the delusive appearances which that malady casts on surrounding objects.

⁴⁶ From this cause, probably, proceed the fears and apprehensions of some that the President and Senate may make treaties without an equal eye to the interests of all the states.

⁴⁷ Others suspect that two-thirds will oppress the remaining third and ask whether those gentlemen are made sufficiently responsible for their conduct; whether, if they act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties?

⁴⁸ As all the states are equally represented in the Senate and by men the most able and the most willing to promote the interests of their constituents, they will all have an equal degree of influence in that body, especially while they continue to be careful in appointing proper persons and to insist on their punctual attendance.

⁴⁹ In proportion as the United States assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole.

⁵⁰ It will not be in the power of the President and Senate to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community, and having no private interests distinct from that of the nation, they will be under no temptations to neglect the latter.

⁵² He must either have been very unfortunate in his intercourse with the world or possess a heart very susceptible of such impressions who can think it probable that the President and two-thirds of the Senate will ever be capable of such unworthy conduct.

⁵⁴ But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations.

⁵⁵ With respect to their responsibility, it is difficult to conceive how it could be increased.

⁵⁶ Every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity.

⁵⁷ In short, as the Constitution has taken the utmost care that they shall be men of talents and integrity, we have reason to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made, and so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on the subject of impeachments.

John Jay, who has been silent since Federalist #5, returns to address a subject that he is uniquely qualified to judge, that of foreign affairs. As the time he wrote, he was, after all, the sitting Secretary for Foreign Affairs for the Confederation Congress and would shortly be named the nation’s first Secretary of State. He had, at the time, already represented his country in the courts of Spain, France and Great Britain.

Until now he has restricted his approach to the argument in favor of a strong federal government in the face of foreign threat. He now turns his attention the other direction, to the methods the federal government would employ to craft treaties with foreign powers under the proposed Constitution. It is, to him, the “most unexceptionable” and uncontroversial part of that document, and the reader senses an unfeigned surprise on Jay’s part that it should be challenged at all.

The topic is Article II, Section 2, wherein the President is charged with the making of treaties under the “advice and consent” of the Senate and subject to the approval of two-thirds of the senators present (4). This, states Jay with no obvious irony, is “an important one, especially as it relates to war, peace, and commerce.” It must therefore be exercised by the best qualified men (5). The Constitutional Convention had provided for the choosing of such men by taking it out of the travails of direct popular election: the President to be chosen by a body of electors, a system under persistent criticism in modern politics; the Senate, to be chosen by the state legislators, a system that has already fallen to criticism in the form of the 17th Amendment.

It is now clear why Jay has chosen to enter the argument at this point, because the thrust of the criticism has been directed toward the Senate, which must confirm such treaties, acting as a brake on any presumed imperial ambitions on the part of the President. These, Jay echoes Madison in reminding the reader, are designed to be mature individuals (10) who will enjoy a certain protection from momentary political enthusiasms in their longer tenure in office than their House counterparts (15-18).

There are additional reasons why it is, first of all, the President, and second, the smaller of the two legislative Houses, that are involved in this process. Treaty negotiations are necessarily confidential and require responses more immediate than offered by a full convocation of the larger House. Confidentiality is required in order not to discourage the sharing of intelligence (22) both by friends and mercenaries (23) – in fact, it may be that these secrets will be directed only to the President himself in the case of the most sensitive information, to be kept safe even from the Senate (24) at least insofar as they are not required for that body’s consent.

Jay alludes to Shakespeare’s play “Julius Caesar” in describing the “tides in the affairs of man,” which tides must force treaty negotiation to move very quickly on occasion. It is perhaps a conscious irony: the words are in the mouth of Brutus in the play, whose eponymous commentator in the current debates is a vigorous and articulate anti-Federalist. Jay’s point is that such things as “the loss of a battle, the death of a prince, the removal of a minister” can require immediate response if the country is not to be misled into a disadvantageous treaty. One might easily imagine such a treaty made with the Weimar Republic in 1933, for example, in order to prop up the shaky Hindenburg administration, secure in the assurance that Hitler and the Nazi Party had garnered a mere 33% of the previous popular vote, a treaty that would have placed the United States in a decidedly awkward position upon the death of the former in August, and still worse when the tanks rolled under the latter six years later. For such a treaty is of necessity a long-term contract, “another term for a bargain” (41), and is not to be considered contingent on the ongoing approval of an ever-changing body of government (39), a notion that Jay dryly rejects as “new and peculiar to this country” and unworkable from the diplomatic point of view.

⁴¹ ...it would be impossible to find a nation who would make any bargain with us which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it.

⁴² ...it will not be disputed that they who make treaties may alter or cancel them, but still let us not forget that treaties are made, not by only one of the contracting parties, but by both, and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them.

There is, along the way, the objection that inasmuch as such treaties carry the force of law, they are properly to be conducted only by those entrusted with legislative authority, i.e. Congress. Not necessarily, replies Jay. While they may carry the force of legislation, they are not actually legislation; similarly, judgments by the Supreme Court carry the weight of legislation but are conducted within the Judiciary. This is true as well at the state level (35). But there is an implication in this that has resulted in an opening for the restructuring of the government it is intended to free.

³⁶ All constitutional acts of power, whether in the Executive or in the Judicial department, have as much legal validity and obligation as if they proceeded from the Legislature, and therefore, ...certain it is that the people may with much propriety commit the power to a distinct body from the Legislature, the Executive, or the Judicial.

This is the same sentiment that has placed arenas nominally reserved for Congress in the hands of the Executive as well in the form of entities such as the Departments of Commerce and Labor. It is the sentiment that has placed the power of legislation in the hands of unelected regulatory bureaucrats in such entities as the Environmental Protection Agency. While Jay might object that the qualification “constitutional acts of power” would indicate against such activities, in practice they have been deemed constitutional until the Supreme Court says otherwise. While Jay might further object that “the people” have done no such restructuring, their elected representatives have. It is a decidedly expansionist sentiment.

Jay next addresses a suspicion on the part of critics that the President and the Senate might make treaties advantageous only to part of the states and against the interests of others. It is one further reason to place the power in the Senate, he points out, where all states have an equal representation regardless of size (48). Lastly, the suspicion that simple corruption might serve to influence the President and the Senate in the same direction is, Jay insists, addressed by the care the Constitution has taken “that they shall be men of talents of integrity”, those being the age requirements mentioned above and the removal of their origins from the vicissitudes of direct election.

There are obviously a great number of issues other than the making of treaties encompassed by these arguments. Both Madison and Jay have described their expectations that a Senate so constituted will be made up of the best men the country has to offer, when in fact all the Constitution can do is attempt to see to that by restrictions on the membership of the Senate that have long been superseded. Moreover, cases of corruption as shocking as those senators were expected to be prominent have only occasionally been addressed by Jay’s last guardian on the integrity of the body.

⁵⁷ In short, as the Constitution has taken the utmost care that they shall be men of talents and integrity...so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on the subject of impeachments.

The anti-Federalist critic might recall – Brutus, for example, as well as Bryan and Sentinel – that such impeachments are to be tried in the very bodies in question, and that the same care taken to ensure that the Senate and the President are less susceptible to the currents and eddies of momentary political passions has also served to insulate the members of the Senate in particular from the consequences of their actions. Lord Acton’s dictum that power tends to corrupt and Madison’s insistence that the ultimate authority in the matter is the people might well serve as reminders that the popular election of senators is not without its advantages.

The conclusions Jay reaches in Nos. 10-13 were based on the Founders' understanding of human nature, but also on the degree of knowledge, wisdom and understanding they had observed around them at time and in this place.

We must remember that Thomas Jefferson wrote the Declaration of Independence at the age of 33, a document which he acknowledged represented "the American mind."

These genius Founders of America were not prisoners of their own time and place. They had studied the great writings from previous ages and times, and their educations had not excluded writings from religious sources from their purview or examination, as have the educations of current generations.

They possessed an understanding of civilization's long struggle against oppression and tyranny in all its forms, and they knew and acknowledged the real source of their lives, rights and liberty.

The assumptions they made about the qualifications of elected officials never envisioned senatorial (and presidential) candidates like some of those of the past few decades and today.

Never would they have foreseen a populace who could believe a man was "brilliant" or "intellectual" whose philosophy would agree with that of Mao, Marx, Lenin, or Keynes.

We are in a different time, and many of our leaders are limited in knowledge by "their own little time and space" on this earth, making decisions which may destroy the liberty of hundreds of millions of future generations--all because of their own limitations.

Have you compared the Declaration of Independence with George Mason's Virginia's Declaration of Rights?

Jefferson wrote that Mason was the wisest man of their generation.

Within that Declaration of Mason's was this:

XV That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.

Now, consider the problems we now suffer in politics. The last "recurrence to fundamental principles" was HOW long ago? Even politicians know little of our Constitution and even less of the bills they pass.

I just finished a presentation at a Constitution and Country Fair = = even most of the self-identified constitutionalists know little about our foundation.

Thank God for FReepers and the readers of these wonderful threads by Publius and Billthedrill. Keep up the good work.

I have difficulty comprehending how at a time when travel was difficult and time consuming you say ...

>>They possessed an understanding of civilization’s long struggle against oppression and tyranny in all its forms, and they knew and acknowledged the real source of their lives, rights and liberty.<<

Yet in a time when tele-conferencing is so common and when we can transfer entire libraries around the world in just seconds you say ....

>We are in a different time, and many of our leaders are limited in knowledge by “their own little time and space” on this earth, making decisions which may destroy the liberty of hundreds of millions of future generations—all because of their own limitations.<

Jay was the first Chief Justice of the United States. It was initially offered to Patrick Henry, but he declined.

In 1791, his court overturned a CONN law that released their citizens from prewar English debts. He did this in others states as well. It was a good thing, because the Brits refused to leave their frontier forts and stop stirring up the Indians until the US lived up to the terms of the Treaty of Paris which ended the war.

In 1793, he rode the circuit that included Virginia, a state that accounted for almost half the debts to British creditors, more than 100 of whom were suing Virginians. The defendants’ lawyers, Patrick Henry and John Marshall, put on “one of the most brilliant exhibitions ever witnessed at the Bar of Virginia,” one observer exclaimed. But they lost. The court ruled that the Declaration of Independence didn’t cancel debts to Britons and that a Virginia law shielding debtors was unconstitutional.

This is worth keeping in mind when reading Henry's vociferous and over the top criticism of the Constitution.

Never would they have foreseen a populace who could believe a man was "brilliant" or "intellectual" whose philosophy would agree with that of Mao, Marx, Lenin, or Keynes.

Oh, but they did. Not that it detracts from the force of your argument, with which I agree, but recall that in the previous essay Madison complains bitterly about the poor, deluded people of Rhode Island, captured by a populist rural movement that was blocking the ratification of the Constitution. Madison hoped that the institution of a Senate would provide a guard against that sort of thing. If it has, it isn't entirely obvious.

But I confess I am at a complete loss to account for the widespread conviction that Mr. 0bama is in any sense an intellectual. He hasn't a single intellectual accomplishment to his name: book, paper, theory, painting, sculpture, musical composition, philosophical treatise, nothing. The hyperbolic statement that he is secure in being the smartest individual in any room he walks into borders on the ludicrous and if true would be the greatest tragedy I could possibly imagine in the fellow's life. Inasmuch as at least some of those rooms reside at Columbia and Harvard I suspect that the converse is more likely to have been true, that he was, in fact, the stupidest person in the room including the janitor. That isn't a crime; I've been in that position frequently myself. But the complete lack of intellectual humility attendant to the claim leads me to believe it can't be true. If it were, it wouldn't need to be made.

Nevertheless, one can see why such luminaries as Marx, Lenin, and Mao are high in the pantheon of the Left. These truly were geniuses, but at only one thing: the accretion of political power. Not, obviously, at its use once acquired. The promised social justice turned to hideous oppression, the promised economic prosperity to squalor, the promised withered state to an enormous, murderous monster. The true believers on the Left hold to a man or woman that he or she could do it better given the chance, but no one ever has. But as far as the accretion of power, if that's what one is after, theirs is a very effective model to follow.

Hence the dependence on class warfare and the politics of resentment on the part of the radical Left. The smart ones know it's only a tool employed for the dominance of the cynical over the credulous. The rest actually believe the whole thing, despite three quarters of a century of disproof and countless millions of victims' testimony to the contrary. I think 0bama may be in the latter situation - having reached his goal of attaining power he is utterly hapless in its employment. It could be worse, much worse. He could be good at it.

"The danger of demagogues robbing one to buy the vote of another was well known to our Framers."

Yes, the practice was well known, and they warned of such a danger to liberty.

Into the 1830's, however, Tocqueville traveled into the "wilderness" of America and found well-read citizens, exhibiting a deep understanding of their Constitution. Later, the "Not Yours to Give" story of Congressman Davy Crockett informs us of the farmer whose great understanding of the Constitution's ban on using taxpayer dollars for "benevolent" purposes influenced a significant vote in the U. S. Congress and changed Crockett's mind on that subject.

In 2008, however, dumbed down by decades of neglect in our so-called "education system" and in homes and churches, the citizenry became so unenlightened that it did not recognize approaching tyranny masked by a flashing smile and a promise of "hope and change"

Not only that, but politicians, academicians and the media led the way in claiming that the lead tyrant is a "brilliant" and intellectually superior being whose supposed "intellect" causes the citiznry to be unable to understand him. And the Vice President of the U. S. repeats the ridiculous claim even within the past few days.

Imagine that!!!

My point in my previous post was meant to say that, although the Founders stressed the importance of an "enlightened" citizenry, it seems almost impossible they would have envisioned an American populace who could be so constitutionally illiterate that it could believe the political hype and elect a man whose voting record and published books revealed his admiration for redistributionist ideas and government control.

Hopefully, they now have been awakened and aroused and will see the incompatibility of the ideas of liberty underlying the U. S. Constitution and the ideas of coercive government control (tyranny) advocated by Barack Obama.

Thanks to both of you for your observations on my earlier post.

Please see Post #10 for further points re the initial comment.

B4Ranch, you make a great point that at the time of America's founding, travel was difficult and time consuming. It would seem that the circulation of ideas would be so impaired that such an accumulation of knowledge as existed in America at that time might have been impossible. Yet, we know of its widespread existence in the minds of those generations because we can access the Founding generation's writings and speeches with ease, due to the technologies you mentioned.

Many years ago, research of their writings was difficult, because ordinary libraries and school libraries had removed such accounts from the shelves, and they could be found only in dusty stacks in remote areas of distant libraries. The progressive censors had done their work.

Today, they can be accessed from home with the click of a mouse. Divine Providence has left us without excuse!

We can read the Founders' words, their accounts of the historians and ancient writings they had consulted, and we can even access some of those ancient writers' works easily.

To B4Ranch's point, however, the Far Left in America, "educated" as they have been under the tutelage of professors who, themselves, never studied the ideas of liberty nor the roots of those ideas in what they would consider to be religious writings, are trapped, as it were, in their limited understanding, fitting into Eliot's definition of what he described as a new kind of provinciality.

There was a part of Paine's Common Sense where he writes of a govenment being guided by a rogue or a fool. Your post reminded me of that discourse.

For some time I have used the word "stupid" to brand the Democrat voters who continue to vote us into a financial abyss. But, these people are not stupid. They are smart in certain fields, but in politics they believe that intelligence continues to bloom with the same grace as it does in their professional fields. That assumption is their failing, along with our nation's.

The modern leftists are NOT stupid; but they are foolish and have elected an appropriate leader.

This Federalist, especially its beginning, angers me. The demise of the State-Appointed Senators paved the way for the total eradication of a principled Senate and all its power of checks and balances. It is now a useless essay.

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