ENEMIES OF PARTICULAR PERSONS and opponents to particular measures seldom confine their censures to things worthy of blame.
This principle alone can explain the motives of those who condemn the Constitution in the aggregate and treat with severity some of its most unexceptionable articles.
The Presidential Power to Make Treaties with the Concurrence of Two Thirds of the Senators Present Is Essential
One such provision of the Constitution 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.” Art. II, § 2, cl. 2 (emphasis added).
The power of making treaties is an important one – especially as it relates to war, peace and commerce – and it should be delegated in a mode that includes precautions to afford the highest security for its exercise by individuals best qualified for the purpose and in the manner most conducive to the public good.
The Staggered Terms of Senatorial Appointments Establishes a Superior System for Promoting and Protecting Our Trade and Navigation
In the conduct of any business, the absolute necessity of a system is universally known and acknowledged. The Constitution not only wisely commits the power of making treaties to able and honest individuals, it also ensures they continue in office a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them.
The Value of the Accumulated Knowledge of Senators
A term of six years gives a senator the opportunity to accumulate the political information and experience to benefit the country.
And by staggering the terms of senators, the Constitution leaves a considerable residue of the old ones in place, thereby promoting uniformity and order while reserving a constant succession of official information.
In the conduct of any business, the absolute necessity of a system is universally known and acknowledged. The Constitution not only wisely commits the power of making treaties to able and honest individuals, it also ensures they continue in office a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them.
Political information developed over time is particularly important in the affairs of trade and navigation.
These should be regulated by a system cautiously formed and steadily pursued. Our treaties and laws should correspond with and promote this system.
The Constitution strengthens the conformity of treaties and laws by requiring Senate concurrence for the approval of both.
Those with the Power to Negotiate and Approve Treaties Must Be Allowed to Proceed with Speed and Secrecy
In the negotiation of treaties of any nature, perfect secrecy and immediate dispatch are sometimes required.
For instance, one may obtain the most useful intelligence if the person possessing it can be relieved from apprehension of discovery, which operates whether the person is a mercenary or a friend.
Many of both descriptions would choose to rely upon the secrecy offered by the President, but decline to confide in a Senator, and still less so to a member of a popular assembly like the House of Representatives.
This consideration alone sufficiently explains why the power of making treaties must not be committed to a popular assembly composed of members constantly coming and going in quick succession.
Such a body must necessarily be inadequate to the attain those great objects requiring steady contemplation in all their relations and circumstances.
Those objects can only be approached and achieved with talents, exact information, and time.
The affairs of humans are marked by tides of irregular duration, strength, and direction, seldom running twice exactly in the same manner or measure.
To discern and profit by these tides in national affairs is the business of those who preside over them.
The most experienced negotiators inform us there are frequent occasions when days or hours are precious.
The loss of a battle, death of a prince, removal of a minister, or other circumstances can intervene to change the present posture and aspect of affairs and turn the most favorable tide against our wishes.
As in the field, so in the cabinet, with moments to be seized as they pass. Those who preside in either should be given the capacity to improve the situation.
The affairs of humans are marked by tides of irregular duration, strength, and direction, seldom running twice exactly in the same manner or measure. To discern and profit by these tides in national affairs is the business of those who preside over them.
The People May Delegate the Power to Negotiate and Approve Treaties on the Federal Government’s Behalf to a Select Body of Citizens
Some are displeased that treaties are to have the force of law, and say treaties should be made only by individuals invested with legislative authority.
The provision in question states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2.
All constitutional acts of power – whether in the executive or the judicial department – have as much legal validity and obligation as if they proceeded from the legislature itself.
The Constitution of New York, for instance, declares the judgments issued by its courts (the judicial authority) and the commissions issued by its governor (the executive authority) are as valid as and binding as the laws passed by its legislature (the legislative authority).
To put it another way, the People’s delegation of the power to make laws to a legislative authority does not authorize the legislature to do every other act of sovereignty by which the citizens are to be bound and affected.
Whatever name be given to the power of making treaties – or however obligatory the treaties may be when made – it is certain the People may properly commit that power to a body distinct from the legislative, executive, or judicial branches.
All constitutional acts of power – whether in the executive department or the judicial department – have as much legal validity and obligation as if they proceeded from the legislature itself.
Treaties Have Always Superseded National Laws
Some oppose the provision that declares treaties are to be the supreme law of the land.
They profess to believe treaties are repealable at pleasure, like the acts of the legislature.
This idea seems to be new and peculiar to this country. But just as new truths often appear, so too do new errors.
A treaty is only another name for a bargain.
What nation would make any bargain with us if it binds them absolutely, but us only for as long and far as we think to be bound?
Laws may be amended or repealed, as treaties may be altered or cancelled.
But treaties are not made by one party alone.
Two parties are required, and at first the consent of both is essential to formation of the treaty.
As the consent of both parties is required at the outset, so it must afterwards be to alter or cancel the agreement.
The Constitution does not change in the least the obligations of treaties.
Treaties remain just as binding and beyond the lawful reach of legislative acts now as they will be at any future period under any form of government.
Jealousy of one’s rights or the rights of others can be useful in a republic, but when jealousy abounds in the body politic, it can become like bile in the natural body, which clouds the eyes with delusive appearances.
Fears of Tyranny and Corruption Are Unfounded
Jealousy of one’s rights or the rights of others can be useful in a republic, but when jealousy abounds in the body politic, it can become like bile in the natural body, which clouds the eyes with delusive appearances.
Jealousy can produce the fears and apprehensions of those who contend the President and Senate will make treaties without an equal eye to the interests of all the States, or that two thirds of them will oppress the remaining third.
The opponents ask: who shall punish individual corruption, and how are we to scuttle disadvantageous treaties?
The possibility of a tyranny by the majority is negated by several facts.
First, the States are equally represented in the Senate, and by individuals the most able and the most willing to promote the interests of their constituents.
So long as the States continue to be careful in appointing proper persons – and insisting on their punctual attendance – they will all have an equal degree of influence in that body.
Second, as the United States assumes more of a national form and character, so will the good of the whole be more and more an object of attention.
A government must be a weak one indeed if it should forget the good of the whole can only be promoted by advancing the good of each of its parts or members.
Neither a president nor a senator will possess the power to make any treaty which does not equally bind or affect their families and estates together with the rest of the community.
Since their private interests are indistinct from those of the nation, neither will be tempted to neglect the community.
As to corruption, a person must either have been very unfortunate in his intercourse with the world – or possess a heart susceptible to such impressions – who can think it probable the president and two thirds of the Senate would ever be capable of such unworthy conduct.
It is difficult even to entertain so gross and invidious a thought. But if such a case should ever happen, the treaty so obtained from us would be – like all other fraudulent contracts – null and void by the law of nations.
Neither a president nor a senator will possess the power to make any treaty which does not equally bind or affect their families and estates together with the rest of the community. Since their private interests are indistinct from those of the nation, neither will be tempted to neglect the community.
With respect to their responsibility, how can it be increased?
Every influence on the human mind – such as the love of country, family affections and attachments, reputations, oaths, honor, and conscience – afford security for their fidelity.
The Constitution has taken the utmost care to ensure presidents and senators shall be individuals of talents and integrity.
I am persuaded the treaties they make will be as advantageous as could be made under the circumstances.
And to the extent the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on impeachments. Art. II, § 4.
Jay