Introduction..................................................................................................................................... 1
I. Treaties,
Non-Self-Execution, and the Internationalist View....................................................... 5
A. The Constitutional
Text.......................................................................................................... 5
B. Globalization and
the Political Branches:
Non-Self-Execution.............................................. 8
C. Self-Execution: The Internationalist View........................................................................... 15
II. The Framing and the
Treaty Power........................................................................................... 20
A. Eighteenth Century
Political Thought and the Practice of British Foreign Policy................. 22
1. Eighteenth Century
Political and Legal Theory................................................................. 23
2. The Making of
British Foreign Policy at the Time of the Framing..................................... 31
B. Treatymaking and the
Power to Legislate in Colonial and Revolutionary America............... 36
1. Revolutionary
Ideology and the Power to Legislate........................................................... 37
2. The Articles of
Confederation and Treaty-Making............................................................. 40
3. Enforcing Treaties
During the Critical Period.................................................................... 43
III. The Constitutional
Convention and the Ratification................................................................ 51
A. Drafting the Treaty
Clause.................................................................................................... 53
1. Stage One: The Virginia Plan and the Negative on State
Laws........................................ 53
2. The New Jersey Plan
and the Triumph of State Sovereignty.............................................. 55
3. The Resurrection of
Majoritarianism.................................................................................. 57
4. Conclusions........................................................................................................................ 62
B. The Ratification
Debates and the Rise of Non-Self-Execution............................................. 64
1. Anti-Federalist
Criticisms of the Treaty Power.................................................................. 64
2. Pennsylvania and the
Rise of the Legislative Power.......................................................... 67
3. New York, the
Federalist, and the Role of Congress in the Treaty Power......................... 70
4. Virginia and the
Triumph of the Power to Legislate.......................................................... 78
5. Conclusions........................................................................................................................ 87
C.
Post-Ratification: Ware v. Hylton, the
Jay Treaty, and Foster v. Neilson............................ 91
1. Ware v. Hylton and
the Early Strains of Self-Execution.................................................... 91
2. The Jay Treaty and
Non-Self-Execution in Congress......................................................... 95
3. Foster v. Neilson
and Non-Self-Execution in Practice.................................................... 100
Conclusions.................................................................................................................................. 104
We live in a world of treaties. Today, treaties regulate aspects of politics, economics, and law that affect the everyday lives of many Americans. The United Nations treaty governs matters such as war and peace and establishes a mechanism for co-operation in maintaining international security.[1] Other agreements oblige the United States to send its men and women into battle to protect our allies.[2] The General Agreement on Tariffs and Trade,[3] as recently strengthened by the World Trade Organization Agreement,[4] sets the rules of international trade, which now comprises at least 25 percent of the gross national product of the United States. The North American Free Trade Agreement creates a free market among the United States, Canada, and Mexico that subjects American businesses and jobs to tougher competition and opens new opportunities for economic growth.[5] Various conventions establish the minimum level of individual rights that the United States owes its citizens.[6] Other agreements regulate the environment and conserve wildlife,[7] while contemplated treaties would require the United States to protect biodiversity and to limits its energy use and industrial pollution.[8]
As the breadth of our treaty obligations has broadened, their depth has increased as well. Rather than bilateral agreements designed to reap specific benefits in narrow areas, recent treaties have sought to establish universal norms of state and private actor conduct that require multilateral agreement to ensure worldwide compliance. International agreements aim to prevent private conduct that harms the environment, human rights conventions seek to control the manner in which a state treats it citizens, and agreements such as the WTO attempt to regulate international economic activity. Some agreements even have created elaborate institutional mechanisms and verification organizations to monitor adherence with treaty norms. As Abram and Antonia Chayes have observed, while “[s]uch treaties are formally among states, and the obligations are cast as state obligations . . . [t]he real object of the treaty . . . is not to affect state behavior but to regulate the activities of individuals and private entities.”[9] International agreements are becoming more like the permanent statutes and regulations that characterize the domestic legal system, and less like the mutually convenient, and temporary, compacts to undertake state action.
Such globalization is occurring at a time when our understanding of the primary constitutional mechanism for making such agreements,[10] the treaty power, remains confused and contradictory. Although, like statutes and the Constitution, treaties receive supremacy over inconsistent state law, [11] the process and objectives of treaty-making are quite different from other forms of public lawmaking. This leads to ambiguity and contradictions in the status of treaties in the American legal system. Treaties at times can take direct effect in American domestic law, even though they are only ratified by the President and two-thirds of the Senate without the participation of the House.[12] At other times, however, courts consider treaties to be obligations between nations under international law, and will not give them effect in suits brought by individuals. First established in Supreme Court case law by Chief Justice John Marshall,[13] the doctrine of “non-self-execution” counsels court to refuse to enforce treaty provisions, in certain circumstances, unless Congress has passed implementing legislation. The political branches at times also pursue a course of non-self-execution. In ratifying a treaty the President and Senate may attach reservations, understandings, or declarations that preclude courts from enforcing treaty provisions that might intrude on congressional prerogatives or the reserved powers of the states, unless Congress has passed the necessary statute.[14]
Despite this practice in the political branches and the courts, a developing academic consensus has emerged that sharply criticizes non-self-execution by both the courts and the political branches.[15] These scholars argue that the Supremacy Clause, which makes the “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,” the “supreme Law of the Land,” requires courts to automatically enforce treaties, just as with constitutional and statutory provisions. Any exception for non-self-executing treaties is a narrow one, if it exists at all. Professor Carlos Vazquez, the most thorough critic of non-self-executing treaties, argues that the Supremacy Clause makes treaties law, on a par with the Constitution and federal statutes, that must be enforced by courts in properly-brought suits by individuals.[16] Professor Louis Henkin, the dean of American foreign relations scholars, has gone so far as to declare that a “tendency in the Executive branch and in the courts to interpret treaties and treaty provisions as non-self-executing runs counter to the language, and spirit, and history of . . . the Constitution.”[17] The success of the treaty-makers in attaching non-self-executing reservations to treaties, and judicial respect for these provisions, comes in for even harsher criticism for their negation of the supremacy of treaty law. According to Henkin, “that recent practice, accepted without significant discussion, is ‘anti-Constitutional’ in spirit and highly problematic as a matter of law.”[18] I refer to these scholars as “internationalists,” because their approach to treaties results in the tight integration of international and domestic law and frees international agreements from many of the constitutional restraints that apply in the ordinary public lawmaking process.[19]
As current practice has rejected a blanket rule of self-execution, internationalists rest their arguments on the framers’ intentions. These critics, who can count among their number every legal scholar to write on the question, declare that the original understanding of the Supremacy Clause demonstrates an intention that treaties be directly incorporated into American law.[20] According to Professor Vazquez, for example, “by declaring treaties to be laws, the Framers meant to make treaties enforceable by individuals in our courts.”[21] Professor Henkin reads much into the early years of the Republic, and even interprets Chief Justice Marshall’s creation of a doctrine of non-self-execution as a clear affirmation of the general self-execution of treaties.[22] Like the debate over war powers,[23] this divergence of academic theory and political practice has led to an unusual arrangement of ideology and constitutional interpretation. Those who are more supportive of a broader role for international law in domestic political and legal decisionmaking find themselves in the position of arguing for a Constitution whose meaning is relatively fixed by the intention of its framers. An argument in favor of non-self-execution would take a more functional approach, one based in the text and structure of the Constitution, in judicial doctrine, as well as in the practice of the political and judicial branches and governmental efficiency. Defenders of the new academic consensus of self-execution usually respond to such arguments, made by courts and the political branches, by citing the framers’ intent, rather than by addressing these claims on their merits.
This article seeks to resolve this debate concerning the self-executing nature of treaties by providing a more complete account of the original understanding of the place of treaties within the American legal system. It agrees with the methodology employed by critics of non-self-execution. The first place to look to understand the interaction of the Treaty Clause, the Supremacy Clause, and Article I, Section 8 is the framing of the Constitution. The results of such an inquiry, however, provide a different, more nuanced story than that presented by the standard internationalist account. Upon closer examination, the original understanding does not compel a reading of the Supremacy Clause that makes treaties immediately law within the United States, but instead allows the branches of government to delay execution of a treaty until Congress as a whole can determine how treaty obligations are to be implemented. Non-self-execution maintained a clear separation between the power to make treaties and the power to make domestic law, and it gave Congress the means to limit the potentially unbounded Treaty Clause. This article will present a more complex theory of the concept of federal supremacy, one that shows that a doctrine of non-self-execution, rather than at odds with the Supremacy Clause, instead is more consistent with the framers’ notions of democratic self-government and popular sovereignty.
Reconstructing the understanding of treatymaking during the framing requires us to adopt a more comprehensive approach to historical sources and their use. Internationalists have failed to review the framing-era sources carefully enough, or they have neglected to engage in a systematic methodology. These writers do not focus on the records from the critical state conventions, such as Pennsylvania and especially Virginia, in which the treaty power and federal supremacy were extensively discussed, and they appear to have missed important documents in the modern collections.[24] This article will fill this gap by focusing on important factors that have been virtually ignored by most scholars, such as the British approach to treaties and the Pennsylvania, Virginia, and New York ratifying conventions, it will use sources that have not been systematically examined by internationalist writers, such as the great mass of Federalist and Anti-Federalist writing and the records of the ratifying conventions, and it will attempt to show how the treaty question fit into the larger intellectual and constitutional world of the framers. As we will see, the conclusion of the ratification process yielded an understanding of the treaty power that kept well within the traditional Anglo-American distinction between the power to make treaties and the power to legislate.
This examination of the original understanding indicates that internationalist scholars are mistaken when they maintain that non-self-execution is unconstitutional, and that they fail to appreciate the doctrine’s functions in respecting the division of powers established by Articles I and II and in protecting Congress’s constitutional powers over domestic legislation. The Framers were concerned that the treaty power, when combined with the Supremacy Clause, threatened to break down the traditional separation between the power to make treaties and the power to legislate. The Treaty Clause had created a democracy gap, as it were, because vesting the power partially in the Senate and excluding the House threatened to remove the people’s most direct representatives from an important lawmaking function. Including the President in the treaty process and allowing treaties to be rendered non-self-executing --- and hence in need of implementing legislation --- ensured that the treaty power would still retain majoritarian roots. It also established that the political branches, rather than the courts, would retain the discretion to decide how the nation was to meet its international obligations. Non-self-execution keeps the treaty power true to the democratic principles of the Constitution as it was originally understood when ratified.
This article will proceed in three parts. Section I will discuss the Constitution’s textual allocation of treatymaking authority, the recent practice of the three branches, and the response of the dominant school of thought within the academic community. The remaining balance of the article will demonstrate that there is support for non-self-execution in the original understanding of the Constitution. Section II will re-create the constitutional, legal, and political background against which the framers acted, while Section III will review the question of non-self-execution within the framers’ discussion of the treaty power and the powers of the federal government. This article concludes that the framers were concerned about many of the structural and normative problems with the treaty power, but that they believed that these problems could be alleviated if treaties were to take effect as internal U.S. law upon implementation by Congress. While the original understanding does not definitively show that all treaties must be non-self-executing, it also demonstrates that the Constitution, as many framers interpreted it, does not compel that all treaties must be self-executing either. This allows the treatymakers and the judiciary to protect the constitutional prerogatives of the lawmakers by requiring legislation before treaties may take effect as law.
This Section will provide the necessary context for our discussion of the Treaty Clause. Part A reviews the constitutional allocation of authority in the treaty process. Part B briefly examines the practice of the federal courts and of the political branches toward the execution of treaties. Part C describes and critiques the prevailing academic response to this practice, which seeks to integrate international agreements and law directly into the domestic legal system.
As with all constitutional questions, an analysis of the treaty power should begin with the constitutional text, which allocates authority over international agreements between the executive and legislative branches. Article II, Section 2 declares that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”[25] The President’s role in the system is not buttressed by many other textual grants of power, aside from the rights to “receive Ambassadors and other public Ministers”[26] and to appoint Ambassadors, although the latter authority requires senatorial consent to be perfected.[27] The President exercises a broad foreign affairs power that derives from these provisions, from Article II’s vesting of the executive Power, and from his position as “Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”[28] The President’s power, however, is not exclusive. The Senate’s coordinate power of “advice and consent” potentially allows the upper house to play a broad role concerning treaty policymaking, either by participating in negotiations, by providing advice on foreign policy, or by using its veto power to force the President to accept senatorial policy.[29]
Although the Senate is the sole legislative participant in the Treaty Power, Congress as a whole enjoys plenary power over several areas that involve international relations. These include authority to impose “Duties, Imposts and Excises,”[30] “To regulate Commerce with foreign Nations,”[31] “To establish an uniform Rule of Naturalization,”[32] “To define and punish Piracies and Felonies committed on the high seas, and Offenses against the Law of Nations,”[33] and “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”[34] In addition to these specific powers, Congress enjoys general control over the appropriation of funds, and it has the authority to “make all Laws which shall be necessary and proper for carrying into Execution” Article I, Section 8 and “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”[35] These last two provisions have played significant roles in the debates over treaty power questions, as they have with other constitutional issues.
While the division of the treaty power between the President and Senate --- and its implications for the making, interpretation, and termination of international agreements --- has received the most sustained scholarly attention,[36] the provision’s true innovations rest in the area of federalism. To cure the defects of the Articles of Confederation, the Constitution places treaties on a par with other constitutional provisions and federal law in their supremacy over state law. Article VI requires state judges to execute these species of federal law over inconsistent state law:
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.[37]
To complete the centralization of competence over international agreements in the national government, the Constitution divests the states of any power in the field. Article I, Section 10 contains two separate prohibitions on the involvement of the states in treaty-making. Clause 1 declares that “[n]o State shall enter into any Treaty, Alliance, or Confederation.” The third clause dictates that “[n]o state shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State, or with a foreign Power.”[38] Until the turn of the century, government leaders, judges, and academics regarded the Treaty Clause as the exclusive mechanism for entering into international agreements.[39] As legal historian G. Edward White writes about foreign relations law in the 1890s, “Treaties, initiated by the Executive and ratified by the Senate, and tariff legislation, initiated by Congress, were thought of as encompassing virtually the entire spectrum of peaceful transactions between the United States and other nations.”[40]
The federal judiciary has no special role in the treaty process, although Article III parallels the Supremacy Clause in its inclusion of treaties in its definition of federal law. Article III, Section 2 extends the judicial power to “all Cases, in Law and Equity, arising under the Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.”[41] If Congress chooses to allow state judges to hear cases interpreting treaties, and if it does not create any lower federal courts, then at least the Supreme Court as the federal court of last resort must have jurisdiction over treaty questions. The Constitution also creates federal jurisdiction over other subject matter that might implicate treaties, such as cases involving ambassadors, admiralty and maritime cases, and between a state or its citizens and a foreign state or foreign citizens.[42]
One distinction made clear by the constitutional text is the difference between treaties and other forms of federal law-making. Although the Constitution fails to define what a treaty is, the Supremacy Clause distinguishes between “all Treaties made, or which shall be made, under the Authority of the United States,” from the “Laws of the United States which shall be made in Pursuance thereof.” In the past, this distinction has suggested to some that the Treaty Power was not limited by the Constitution but only by the Authority of the United States, which referred to something broader than the Constitution.[43] The main purpose of this language, however, was to give supremacy effect to treaties made under the Articles of Confederation, such as the 1783 peace treaty with Great Britain.[44] It was not until 1957, though, that the Supreme Court put to rest the idea that the treaty power was not limited by the Constitution, at least with regard to individual rights,[45] if not the separation of powers and federalism.[46]
Another significant textual difference between a treaty and a law is found in the treaty power’s placement in Article II, which vests the executive power in the President, rather than in Article I, which vests all “legislative power herein granted” to the Congress. The Treaty Clause’s location suggests that treaties are executive, rather than legislative, in nature. The Senate’s participation alone does not convert treaties into legislation, just as the Senate’s participation in appointments does not transform that function into a legislative act. Instead, the Constitution appears to include the Senate both to dilute the unitariness of executive action in the area of treaties, and perhaps to impart more continuity and wisdom to the conduct of foreign affairs. With their six-year terms (two more years than the President’s), Senators would provide “a due sense of national character” and stability, much like that supplied by the privy council in England and the governor’s councils in the states, and restrain abuses of power by the executive.[47]
These differences in textual treatment leave unanswered several questions regarding the place of treaties in the American public lawmaking system. First, the text does not make clear how the treaty power is affected by the Tenth Amendment and the general reservation of powers to the states. Despite recent Supreme Court cases denying the federal government such authority under the Commerce Clause,[48] a treaty conceivably might permit the federal government to force state legislators or executive officers to implement an international agreement. Second, the Constitution does not answer whether a treaty obligation is subject to the separation of powers. In other words, a treaty might allow the executive branch to perform a function that would normally be fulfilled by the legislature or the judiciary, or a treaty might delegate authority from the executive branch to international organizations.[49] Third, the Constitution does not describe the limits on the scope of the treaty power. In the absence of such limits, it is possible that the President and Senate could enter into a treaty on any matter, even if that issue rests within the plenary powers of Congress.[50] Fourth, the Constitution does not directly address the implementation of treaties. As international affairs come to exert more impact on domestic matters, efforts to enter broader, more intrusive treaties may place considerable stress on the public lawmaking system. The next section will examine increasing globalization of affairs, its effects on the public lawmaking system, and the academic consensus in response.
The Constitution’s provisions for handling international matters B the treaty power and Supremacy Clause, Congress’s foreign commerce and spending powers, federal court jurisdiction B arose in the very different world of the late eighteenth century. Then, international law involved relations among nation-states, international affairs and domestic affairs occupied fairly separate spheres, and international agreements rarely regulated private activity, which was the preserve of domestic lawmaking.[51] Matters today are quite different. Relationships and problems that were once domestic, such as economics and the environment, have become international in scope. Events abroad, as most notably seen in the Asian financial crisis, affect domestic markets and institutions in a more profound manner than in the past. Efforts to regulate domestic problems need to address the international affairs in order to be comprehensive and effective. Correspondingly, policy solutions have come to rely upon new types of international agreements that include multiple parties, that create independent international organizations, and that pierce the veil of the nation-state and seek to regulate individual private conduct. While perhaps necessary to meet international goals, these novel arrangements and institutions create difficulties because of their intrusiveness into what was once under the control of the domestic political and legal system. Examples include: arms control, in which a recent treaty called for on-site inspections of chemical manufacturing facilities by international inspectors;[52] international economics, in which the WTO and NAFTA agreements establish standards of conduct for domestic manufacturers and create new dispute resolution mechanisms;[53] environmental law, in which international agreements increasingly set substantive norms once created by domestic legislation;[54] and human rights treaties, which surpass domestic legislation and constitutions in regulating the duties that a state owes its citizens.[55]
Globalization raises difficult problems concerning the nature of the treaty power and its relationship with the normal processes of public lawmaking. Once upon a time, the more pressing issue was whether treaties could extend beyond the limits of Article I, Section 8 and the general ambit of federal powers.[56] With the vast expansion of federal power permitted by the Supreme Court’s broad reading of the Commerce Clause, however, it is more likely that today’s multilateral treaties will not extend beyond federal powers, but will adopt regulatory standards usually set by statutes or regulations pursuant to Congress’s domestic legislative powers. Globalization, therefore, and the concomitant expansion in the scope and depth of treaties, raises important questions of whether the treaty power can supplant the domestic lawmaking process, whether courts are to give effect to treaties that intrude on areas within Congress’s Article I, Section 8 powers, and whether the treatymakers can render such treaties non-self-executing in order to preserve congressional prerogatives.
Both the judiciary and the political branches have responded to these problems by seeking to render treaties non-self-executing. The first Supreme Court decision declaring that courts were to refuse to enforce some treaties without implementing legislation came in the 1829 case of Foster v. Neilson.[57] Written by Chief Justice John Marshall, Foster declared that federal courts could enforce certain treaty provisions, particularly those that created individual rights, but not others, such as those that promised future action by the government. We will examine the precise circumstances of reasoning of Foster in Section III; it is important now to recognize only that as early as 1829 the Marshall Court had rejected the idea that all treaties should be self-executing.
In the late nineteenth century, the Court expanded upon Foster by grounding non-self-execution in the nature of international politics and the separation of powers. In cases such as the Head Money Cases[58] and Whitney v. Robertson,[59] the Court allowed statutes passed by both Houses to overrule earlier treaties. In so doing, the Justices commented that treaties were generally not self-executing because international law recognized states as the primary actors in international relations and that politics, not courts and law, were the means for remedying treaty violations. As the Court declared in The Head Money Cases: “A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress.”[60] Disputes involving foreign relations are considered to be within the domain of the political branches, which are textually vested with the constitutional authority in international relations; such disputes also are of a nature that do not lend themselves to judicial competence.[61] Shortly after The Head Money Cases, the Court provided similar reasoning in defending the last-in-time rule in Whitney v. Robertson.[62] Observing that international disputes rest within the control of the political branches, the Court said: “If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government, and take such other measures as it may deem essential for the protection of its interests.”[63] Because of the political nature of treaty violations and foreign relations, the courts generally are to restrain themselves from entering the area. As the Whitney Court further explained: “The courts can afford no redress. Whether the complaining nation has just cause of complaint, or our country was justified in its legislation, are not matters for judicial cognizance.”[64]
Such concerns, which also would coalesce into the political question doctrine, counseled the federal courts to presume treaties to be non-self-executing. Vested by the Constitution with control over foreign relations, the political branches are to enforce treaties, break treaties, or to seek remedies for their violation in the arena of international politics. As the Court said in Whitney, “the power to determine these matters had not been confided to the judiciary, which has no suitable means to exercise it, but to the executive and legislative departments of our government; and that they belong to diplomacy and legislation, and not to the administration of the laws.”[65] Non-self-execution leaves to the political branches the discretion needed to successfully pursue American foreign policy goals, and it restrains the courts from entering a field in which they have neither competence nor power to enforce their will. At the same time, however, the courts were unwilling to adopt a blanket rule of non-self-execution for all treaties. Expanding on a theme from Foster v. Neilson, the Justices linked self-execution to the specific creation of individual rights by treaty. In the Head Money Cases, for example, the Court declared that “a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.”[66] The turn of the century Court evidently believed, as did Chief Justice Marshall in Foster, that the abilities of the judiciary limited its function “to decide upon individual rights, according to those principles which the political departments of the nation have established.”[67] A desire by the political branches for self-execution would be made clear in the text of the treaty.
Since these turn of the century cases, the line between non-self-executing and self-executing treaties has become, if anything, even more confused. In the post-World War II era, for example, prominent commentators and several courts have introduced a subjective element into their examination of self-executing treaties. The majority view maintains that the central factor in determining whether a treaty is self-executing or not is the intent of the treaty-makers. For example, the Restatement (Third) of the Foreign Relations Law of the United States observes that treaties are not self-executing if “the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation.”[68] Since it is up to the United States to determine how to carry out its international obligations, the Restatement observes, “the intention of the United States determines whether an agreement is to be self-executing in the United States or should await implementation by legislation or appropriate executive or administrative action.”[69] When the United States’ intent is not clear from the treaty itself, the Restatement approves the use of presidential statements in concluding the treaty and of legislative materials in the Senate approval process.[70]
Although the Restatement is not law, in this case it represents the practice of some courts. Lower courts have sought to determine intent by examining not just the text of the treaty, but also its negotiating history, pre-ratification statements by the executive and the Senate, and any action to create a cause of action enforceable in the courts.[71] Courts have resorted to such legislative history in the interpretation of treaties just as they have in reading statutes. Efforts to use similar materials in the treatymaking context indicate that courts are attempting to incorporate treaties into their frameworks for constitutional and statutory questions. This is nowhere more clear than in the current refinement of the intent-based analysis into a private cause of action analysis. When determining whether a treaty is self-executing, the Supreme Court and the lower courts ask today whether its provisions create a private right of action. For example, in Argentine Republic v. Amerada Hess Shipping Corp., the Court was confronted with a claim by two Liberian companies against Argentina for alleged damage caused to their ships by the defendant’s military during the Falklands war.[72] Plaintiffs argued that the Alien Tort Statute’s vesting of jurisdiction over suits brought by aliens for torts committed “in violation of the law of nations,”[73] as well as several treaties signed by the United States,[74] could override Argentina’s sovereign immunity as guaranteed by the Foreign Sovereign Immunities Act of 1976.[75] In rejecting the treaty claims, the Court responded: “These conventions, however, only set forth substantive rules of conduct and state that compensation shall be paid for certain wrongs. They do not create private rights of action for foreign corporations to recover compensation from foreign states in United States courts.”[76] In the course of its discussion, the Court tellingly cited to the passages in Foster v. Neilson and The Head Money Cases discussed above.[77] In this regard, the Court was following the example set by earlier lower court decisions that also had gleaned from Foster and its progeny the rule that treaties were not self-executing unless they created a private right of action.[78]
Recent developments in the treatment of treaties by the political branches have mirrored the judiciary’s adoption, in some cases, of non-self-execution. Either at the behest of the Senate or on his own initiative, the President has declared recent human rights treaties to be non-self-executing.[79] In other cases, the Senate has qualified its consent to a treaty with the condition that its provisions not take effect in internal United States law.[80] At other times, the President or Senate or both have declared that a treaty commitment requires no change in American law, thereby indicating to American courts that the treaty’s provisions have no substantive legal effect independent of existing constitutional and statutory law. In considering the Torture Convention,[81] for example, the Bush administration submitted to the Senate, along with the treaty, a set of reservations, understandings, and declarations (RUDs) that had the effect of declaring the Convention to be non-self-executing within the United States. In the process of approving the International Covenant on Civil and Political Rights, President Bush requested and the Senate adopted a declaration in its resolution of advice and consent that the agreement would be non-self-executing. And during the approval of the Genocide Convention in 1985, the Senate Foreign Relations Committee issued a committee report that formally indicated that the treaty would be non-self-executing.[82]
When outright declarations of non-self-execution are not used, the President and Senate often resort to what, in Professor Damrosch’s words, are their “functional equivalent.”[83] For example, in the case of the international human rights treaties, the President and Senate have included “federalism” understandings that promised implementation of a treaty only to the extent that the federal government “exercises jurisdiction” over matters covered by the treaty. Compounding the impact of the federalism provisions, the President and Senate also regularly include in human rights treaties a reservation that, for lack of a better term, might be labeled a status quo ante clause. The status quo ante reservation declares that the United States understands that compliance with the treaty requires no changes to existing American law.[84]
The practice of including RUDs indicates that the political branches are concerned about the possible effects of treaty self-execution. RUDs appear designed to reserve treaty implementation to those elements of the American government that would have power over those subjects in the absence of a treaty. RUDs that refuse to allow courts to enforce a treaty’s terms maintain the status quo ante, which preserves Congress’s authority to implement international agreements. Thus, the President and Senate did not make torture a crime by ratifying the Torture Convention, but instead rendered the treaty non-self-executing, which allowed Congress to decide whether to enact a federal crime of torture. In the absence of a treaty, there is no doubt that only Congress could make torture, or any other activity, a federal crime, and so the RUD protects the legislature’s plenary power over a subject matter. Similarly, in regard to multilateral human rights treaties, RUDs have the effect of maintaining Congress’s power to decide whether to expand the political, civil, and economic rights of American citizens beyond those guaranteed by the Constitution. RUDs also defend the reserved powers of the states and of the people. In the case of human rights treaties, especially those that go beyond the rights that the federal government as a whole can even protect,[85] non-self-execution provisions reserve to the states the choice whether to grant new forms of rights, or they leave to the people the decision whether to add to the Bill of Rights and the Reconstruction Amendments.
Understood in this light, the practice of the political branches stands in harmony with the judicial doctrine of non-self-execution. We can see at least three purposes motivating the federal courts. First, the resort to the private right of action analysis clearly evidences a desire to incorporate treaties into the common approach employed in enforcing constitutional and statutory provisions. In its recent private cause of action cases, the Supreme Court has found that a statutory provisions will be self-executing if four factors are satisfied, with the main inquiry that of whether Congress intended to establish a cause of action.[86] In the absence of a clear provision in the text, this test will yield few implicit causes of action; a similar result will most likely follow in the treaty context. Second, relying upon a private right of action analysis provides the political branches with the discretion to decide how to enforce the nation’s treaty obligations. If individuals cannot bring suit in federal court to enforce every treaty obligation, then the political branches will not have to be concerned that the litigation decisions of private persons or the judicial decisions of courts will interfere with foreign policy. Third, a private right of action analysis imposes self-restraint upon the judiciary, a duty that arises out of Article III concerns about the constitutional powers of the federal courts. By requiring that the text of the treaty or the treatymakers unambiguously state their intention to give individuals a cause of action enforceable in court, the judiciary limits itself to the types of cases that it can best address.[87] By refusing to enter into the highly political arena of foreign affairs, where the judiciary’s competence and authority are questionable, the courts can conserve their resources for the defense of individual rights at home.
RUDs and judicial non-self-execution demonstrate a desire among the branches to reserve questions of treaty enforcement for the political branches and to keep them out of the federal courts. This practice also suggests that the political branches and the judiciary share a reluctance to immediately collapse the distinctions between international lawmaking by treaty and domestic lawmaking by statute. Like the non-self-execution doctrine, the practice of the President and the Senate indicates their belief that in many cases full legislative action is required before a treaty’s provision is to be considered the internal law of the United States. RUDs guarantee that decisions that usually rest in the hands of the democratically-elected branches remain there, even in the presence of a treaty on the subject, or, if the function is outside the powers of the national government as a whole, that the ordinary process of American public lawmaking apply.
Highly critical of these practices by the three branches of government, an emerging academic consensus answers that international agreements and law ought to be directly merged into the domestic legal system. What might be described as the internationalist approach seeks to make international law a seamless part of domestic law by freeing international agreements from the normal public lawmaking process. Advanced most forcefully by Professor Henkin, the internationalist model argues that international agreements and international law should take effect directly as domestic law without any intervening legislative action. In the treaty context, for example, Professor Henkin and others argue that once a treaty is made, it is automatically enforceable in the United States in federal and state courts without legislative implementation. Describing a different default rule, Professor Henkin writes that “[i]n some constitutional systems, treaties are only international obligations, without effect as domestic law; it is for the parliament to translate them into law, and to enact any domestic legislation necessary to carry out their obligations.”[88] That, Professor Henkin argues, is not the law in the United States because Article VI’s Supremacy Clause makes treaties “the supreme Law of the Land” on a par with the Constitution and federal statutes. According to Professor Henkin, “that clause, designed principally to assure the supremacy of treaties to state law, was interpreted early to mean also that treaties are law of the land of their own accord and do not require an act of Congress to translate them into law.”[89] Professor Henkin would admit of only a narrow exception for cases in which a treaty makes only a promise of future action that must be undertaken by the legislature, such as enacting a criminal law or appropriating money. In other words, most treaties would become, upon their approval by the Senate and ratification by the President, “self-executing” in American law, with only the small exception of future promises becoming “non-self-executing” and requiring further legislative action.
Advocacy of self-execution bears important implications in terms of federalism and the separation of powers. Self-execution obliges all branches of the government, federal and state, to carry out a treaty’s provisions, because they are binding both as international agreements and domestic law. Pursuant to the Supremacy Clause, under this view, treaties are law and so do not need any further implementation from Congress. Furthermore, because they have already undergone a valid constitutional process, and because they are not governed by the limitations on Congress’s Article I powers because of the Treaty Clause’s placement in Article II, treaties are not subject to the normal federalism and separation of powers limitations that apply to statutes. On the question of treaties and federalism, for example, internationalists maintain that treaties are not limited by the Tenth Amendment or by any reserved state powers.[90] Similarly, internationalists believe that the separation of powers should pose no obstacle to the implementation of a treaty.[91] Except for the powers of appropriations and declaring war, internationalists believe that the President and Senate can exercise all other legislative powers by treaty. Nor are subject matter exclusions from the treaty power to be inferred from Article I.[92] Finally, internationalists believe that treaties take direct effect upon their ratification, and that no congressional implementation is needed. To require otherwise is “anti-constitutional.”[93] In part, internationalists have been able to justify these efforts to extend the reach of the Treaty Power by relying upon the growing internationalization of domestic affairs. As foreign affairs has expanded to touch on many different aspects of domestic life, academics have argued that the Treaty Power must expand accordingly.
Internationalists base their claim that all treaties generally must be self-executing on two chief grounds. First, they argue that the plain text of the Supremacy Clause equates treaties with constitutional and statutory provisions. Because they are the “Law of the Land,” constitutional and statutory provisions are enforceable in federal and state court and pre-empt inconsistent state law. Therefore, treaty provisions must be judicially-enforceable law as well. “The distinction found in certain cases between ‘self-executing’ and ‘non-self-executing’ treaties,” Professor Jordan Paust declares, “is a judicially invented notion that is patently inconsistent with” the Supremacy Clause.[94] In fact, Professor Paust continues, “such a distinction may involve the most glaring of attempts to deviate from the specific text of the Constitution.”[95] The Supremacy Clause, Professor Carlos Vazquez argues, demonstrates the intent to “adopt[] the very same mechanism for enforcing treaties, federal statutes, and the Constitution itself.”[96] Under the Constitution, therefore, judges are to be “the primary enforcers of all three categories of law” listed in the Supremacy Clause through the adjudication of cases brought by individuals directly in federal court.[97] Courts that refuse to immediately enforce treaties, internationalists conclude, violate the Supremacy Clause.[98]
To reach this conclusion, internationalists too hastily equate “Law of the Land” with judicial enforceability. Both the text of the Supremacy Clause and its history indicate that its primary purpose was to guarantee the primacy of federal law over state law. Article VI requires that state judges give federal law supremacy and that any state constitutional or statutory laws to the contrary are pre-empted.[99] The Clause’s purpose as a central component of Our Federalism could not be clearer. Nothing in the clause, however, indicates that supremacy was to be achieved automatically through the direct enforceability of treaties in federal and state court.[100] Attempting to read Article VI in this way unnecessarily transforms what is a federalism provision into a separation of powers provision as well. Treaties can still receive supremacy by means of a process that requires congressional legislation to implement treaty provisions. Interpreting Article VI in this manner makes even more sense in the foreign affairs context, because it provides the political branches with the discretion to decide how the nation’s international obligations are to be enforced. Relying as it does on automatic judicial enforcement, the internationalist approach robs the President and Congress of the flexibility they might need in conducting the nation’s foreign affairs.
Reading Article VI as not to require self-execution of treaties is not unfaithful to the text of the Supremacy Clause, as some internationalists argue. Including treaties in Article VI still serves the purpose of making clear that treaties, vis-a-vis the states, are entitled to the same supremacy as constitutional and statutory provisions, when they are enforced by the national government in conflict with state laws. In other words, this element of the Supremacy Clause gives the federal government the authority to pass legislation to enforce it, much in the way that the Necessary and Proper Clause provides the federal government with the authority to pass enabling legislation for other constitutional grants of power. Article VI, however, can be read to leave up to the political branches of the national government how that enforcement will take place. Such a purpose still would have addressed a significant defect of the Articles of Confederation, which did not contain a provision that made clear that treaties, when enforced by the national government, superceded state laws.[101] The Supremacy Clause’s second element, which requires state judges to give federal laws primacy over state laws, buttresses this federalism interpretation of the clause. The provision requiring state judges to enforce federal law creates a default rule that would be triggered only if the political branches chose to enforce a treaty judicially, but had failed to establish any lower federal courts.
Second, not content to rely solely on the Supremacy Clause’s text, internationalists turn to the Constitution’s original understanding for support. Non-self-executing treaties, Professor Henkin concludes, “is not what the Constitution provides or what the Framers intended.”[102] Internationalists argue that one of the framers’ primary concerns was the national government’s inability to enforce state compliance with treaties and to make federal law operative on individuals.[103] The reasoning of the internationalist case is fairly straightforward. Under the Articles of Confederation, the national government suffered because of its inability to secure state compliance with treaties. States refused to obey provisions of the Treaty of Paris of 1783, which had ended the Revolutionary War, and which allowed British creditors to seek pre-war debts from American debtors.[104] Failure to enforce the treaty threatened the security and future prosperity of the new nation. This problem arose primarily because the general government lacked the power to enact legislation that operated directly on individuals; instead, Congress had to make recommendations and requests upon the states which clearly were not laws because they lacked a legal sanction. To remedy this situation, the delegates to the Constitutional Convention included the Supremacy Clause, which made federal law directly applicable upon individuals and allowed the national government to free itself from its dependence on the states for treaty enforcement. “The Convention and ratification debates, and contemporaneous statements, show clearly that the Framers were concerned about treaty violations,” argues Professor Vazquez.[105] “To prevent or remedy treaty violations before they produced these consequences, they declared treaties to be the ‘supreme Law of the Land.’”[106] “By so doing,” he concludes, “the Framers intended to make treaties operative on individuals and enforceable in the courts in cases between individuals.”[107]
Without the Supremacy Clause, treaties would have been merely morally, rather than legally, binding. In order to make treaties a species of meaningful federal law, internationalists claim, individuals must have the right to enforce treaties in court. Internationalists seek their primary historical support in several additional pieces of evidence. First, they quote Federalist No. 22, in which Alexander Hamilton mentions that “[t]he treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must like all other laws, be ascertained by judicial determination.”[108] Second, they often refer to William Davie’s statement, in the North Carolina ratifying convention, that “it was necessary that treaties should operate as laws upon individuals. They ought to be binding upon us the moment they are made.”[109] Third, more sophisticated internationalists argue that the Constitutional Convention adopted the Supremacy Clause precisely to allow direct enforcement of treaties so as to avoid a much more aggressive mechanism for the enforcement of treaties, namely James Madison’s proposal for a federal veto on state laws.[110] Finally, internationalists rely upon an early Supreme Court case, Ware v. Hylton,[111] which enforced the terms of the 1783 Treaty of Paris against an inconsistent Virginia law. According to internationalists, the Ware Court’s enforcement of the treaty in a private suit demonstrates that the framers understood that treaties were to be self-executing in court.[112]
This article will address the materials from the framing and ratification of the Constitution in detail in following sections, but suffice it to say that many of the materials relied upon by internationalists are too general to support their broad theory. Like the quotes from Federalist No. 22 and William Davie above, their sources discuss the binding nature of treaties upon the United States, but they rarely address the narrower question of how these international obligations are to be enforced. Certainly treaties can be “binding upon us” without the intervention of the courts, but through the actions of the political branches. Internationalists’ evidence also might refer to the judicial determination of the scope of individual rights under a treaty, as with Alexander Hamilton’s brief aside in Federalist No. 22, but they do not address whether individuals may bring actions immediately upon the entry into force of a treaty, or whether an implementing statute is required first. Ware, decided shortly after the ratification, is perhaps the internationalists’ best piece of historical evidence. While this article will discuss Ware in a later section on events during the Washington and Adams administration, it is worth noting at this point that the case is part of a more complex story than is commonly thought, one that includes support for both self-execution and non-self-execution positions.[113]
These examples point to a more systematic problem with the internationalist reading of history. In discussions of the nature of the treaty power, internationalists commonly mix modern concepts about international and constitutional law with speeches from the Philadelphia Convention, the Federalist Papers, the state ratification debates, and the comments and cases after ratification, producing one confused jumble.[114] This “law office” approach to history fails to capture the legal, constitutional, and historical context within which the ratification took place, the evolution of the framers’ thinking about the treaty power from the beginning of the Philadelphia debates through the significant state ratifying conventions, and the arguments that occurred between Federalists and Anti-Federalists in the press --- all of which shaped the original understanding of the Constitution. Internationalists attempt to use the framers’ every mention of the word “treaty” to glean some clear message about the applicability of treaties as domestic law, while ignoring the deeper structural imperatives, arising from federalism and the separation of powers, that the Constitution imposes upon treaties. Sections II and III will discuss the more complex story of the evolution of the Treaty Power during the framing and ratification of the Constitution within its proper historical context.
This Section locates the Constitution’s textual allocation of the treaty power within the legal and political context of Anglo-American government in the eighteenth century. Part A sets the stage for our discussion by examining the treatment of the treaty power in eighteenth century political thought and in Anglo-American political practice. Part B continues to address the pre-constitutional context by examining the relationship between treaties and legislation during the revolutionary period and under the Articles of Confederation. Section III focuses the analysis by turning to the arguments over treatymaking that occurred during the Philadelphia Convention, the state ratifying debates, and the early post-ratification years.
History is important to our analysis for several reasons. First, the Supreme Court’s renewed interest in the structural elements of the Constitution has relied in part upon the original understanding of the document. Recent separation of powers cases, for example, have turned to the framers’ intentions to illuminate the inherent powers of the branches. [115] Similarly, recent cases examining the balance of authority between the national government and the states also have sought to understand the original thinking of those who drafted and ratified the Constitution.[116] While obviously there is some dispute about how dispositive the framing history ought to be, both sets of decisions have made urgent appeals to the Federalist Papers, to the discussions of the Philadelphia Convention, and to the state ratifying debates for authority. If the Supreme Court is to address the effect of globalization upon treaties and the lawmaking process, it likely will consult the original understanding for guidance.
Second, writers on foreign affairs, especially those in favor of the doctrine of self-executing treaties, have anchored their arguments upon the original understanding. As noted before, Professor Henkin flatly asserts that judicial and legislative willingness to find treaties non-self-executing clearly contradicts the Constitution’s history.[117] Other writers have repeated the claim that the framers specifically intended that treaties be immediately implemented by courts.[118] Professor Vazquez concludes that “the Framers intended to make treaties operative on individuals and enforceable in the courts in cases between individuals,” and that federal courts were to be the primary implementers and enforcers of treaties.[119] Earlier writers on treaties, who argued for a broad reading of the power and upon whom modern scholars often rely, also claimed that the original understanding of the framers indicated that treaties were to have direct effect in American law.[120]
A more systematic examination of the sources, however, will show that these claims cannot find firm support in the original understanding. In making his blanket assertions that the history of the Constitution does not justify non-self-execution, Professor Henkin provides no citations to any primary historical documents.[121] Instead of primary sources, Henkin relies on, oddly enough, Foster v. Neilson, for support that the original understanding supports non-self-execution. Not only did the Court decide Foster in 1829, 40 years after the ratification, but Foster introduced non-self-execution into American law.[122] Professor Paust, another supporter of self-executing treaties, provides historical evidence, but he mixes sources from before, during, and after the ratification, without noting their historical relevance,[123] without using the proper reference sources,[124] and without providing a sense of the general historical and political context within which the framers acted. While more sensitive to context and the sources, Professor Vazquez’s work also fails to provide a complete historical picture. For example, Professor Vazquez, like Professor Paust, focuses almost all of his attention upon the Constitutional Convention, and to the extent he looks to the ratification process, he quotes only a few of the Federalist and Anti-Federalist papers and the debates of the North Carolina ratifying convention.[125]
A context-less treatment of the treaty power is symptomatic of a deeper problem with the internationalists’ use of history. In focusing on a few statements here and there, or in swiftly drawing contemporary lessons from phrases such as “law” or “supremacy,” they fail to make a sufficient effort at understanding the political, legal, and constitutional world of the late eighteenth century American. While this may be a difficult task, it is not impossible.[126] Whether one wants to develop rules for originalists,[127] or measure the use of historical sources by the basic standards of the historical profession,[128] at the very least scholars who use an originalist approach must be sensitive to the broader intellectual picture of the founding generation and the secondary works that attempt to re-create it. When a more comprehensive approach toward history is undertaken, the internationalist theory of automatic self-execution is found lacking.
This section presently will attempt to provide an examination of the original understanding that meets these standards. It will focus on important factors that have been virtually ignored by most scholars, such as the British approach to treaties and the Pennsylvania and Virginia ratifying conventions, it will use sources that have not been systematically examined by these writers, such as the great mass of Federalist and Anti-Federalist writing, and it will attempt to show how the treaty question fit into the larger intellectual and constitutional world of the framers. This analysis finds that the framers were part of a political world that viewed the power to legislate as a critical check on executive powers in foreign affairs, one that had been won after decades of struggle, first between the King and Parliament, and then between Parliament and the colonial assemblies. When the continuing separation of the treaty and legislative power created severe problems for the new republic, the framers developed two different responses for constitutional reform. While leaders such as Alexander Hamilton and John Jay wanted state courts to enforce treaties, James Madison and others devised a solution that relied upon a truly national representative legislature to carry treaties into effect. Both themes would run into the ratification fight itself and provide meaning to Article I and the Treaty Clause.
To begin, we need to examine the legal, constitutional, and political background of the Anglo-American world of the eighteenth century. The framers were former citizens of the British empire; the constitutional and political history of Great Britain had been, until 1776, their shared history. How legal authorities, therefore, thought about the relationship between treaties and laws, and the history of constitutional and political struggle between Crown and Parliament over the power to make treaties, formed the context within which the framers would have approached the new Constitution. Events during the revolution and the critical period also shaped the views of the framing generation on treaties, especially as several prominent controversies during this period involved the treaty power. This part of the analysis will show that the Anglo-American legal, constitutional, and political world recognized a sharp distinction between the power to make treaties and the power to legislate, with the former seen as an executive power and the latter vested solely in the hands of the people’s most direct representatives. Treaties dealt with matters involving foreign affairs, while the regulation of domestic conduct remained the province of domestic legislation.
Our effort to determine the original understanding of the treaty power starts with the British constitution. In the area of foreign affairs, the framers borrowed from English legal concepts such as “Declare War,” “Commander-in-Chief,” and “Letters of Marque and Reprisal.”[129] Understanding what those terms meant in the British context, and how they worked in practice, will indicate what the framers believed they had established when they wrote the Treaty Clause. Further, as former members of the British Empire, those who wrote and ratified the Constitution would have understood the new frame of government by comparing it to their experience under the British system.[130] The eighteenth century British constitution was composed of a series of unwritten principles, expressed in practice, statutes, and understandings that had developed over the course of centuries. These principles, which defined the relationship between the government and its people, and between the Crown and Parliament, had undergone significant change during the seventeenth and eighteenth centuries. The meaning and significance of these developments would have been familiar to the ratifiers of the American Constitution, and the arrangement of British institutions and their control of the treaty power would have provided the context necessary to understand the Constitution. Also of intellectual importance was the political philosophy of the period, which often served as legal and constitutional authority in the British world. To reconstruct the mindset of the framers, then, we will examine the thinking of seventeenth and eighteenth century political theorists on foreign affairs, law, and treaties, and then turn to the political and constitutional struggle between Crown and Parliament and its impact on the treaty power.
On questions concerning international law, the framers first would have turned to the well known publicists, Hugo Grotius and Emmerich Vattel. Their treatises were a regular resource both for the framers and for English legal authorities, such as William Blackstone, to whom the revolutionary generation looked for guidance.[131] Of course, these writers could not anticipate the growth in the breadth and depth of treaty-made international law that is now taking place at the end of the millennium. Indeed, they were at work laying the barest of foundations for the structure of modern international law, which at this time remained the preserve of relations between nation-states concerning basic issues of war, peace, and security.[132] Their discussion, however, of international law questions can throw some light upon today’s growing merger of international and domestic affairs, and the corresponding growth of the scope of treaties. Well-known to the framers, Grotius’s De Jure Belli ac Pacis classified international agreements into treaties, sponsions, and other agreements.[133] Although he did not draw precise lines, he generally discussed treaties as encompassing three classes of subjects: treaties that enforce the law of nature, peace treaties, and treaties of alliance.[134] In the first class, Grotius placed agreements that provided rights, such as hospitality, between nations that had no relationship with each other. In the second group, Grotius placed agreements that ended hostilities by settling the issues that had led to war. According to Grotius, the final class included treaties of commerce, such as those setting import duties, and agreements to go to war in aid of another.[135]
As treaties were used generally to end wars, Grotius linked the power to enter into treaties with the authority to make war. “Those who have the right of initiative in conducting a war have the right to enter into treaties for the purpose of ending it.”[136] Distilling Roman practice, Grotius believed that treaties were made by the “highest authority” in a nation, by which he meant the domestic power that exercised sovereign authority.[137] In democracies, the treaty power would be lodged with the people; in aristocracies, it would rest with the state council. In a section discussing the subject matter of treaties, however, Grotius argued that the symmetry between the warmaking and the treatymaking powers sometimes ought to be broken. In the case of treaties that called for the transferal of sovereignty, such as ceding territory, population, and possessions, the approval of more than just a nation’s representative in foreign affairs was required. Due to the transfer of territory or citizens, Grotius considered such agreements to be an “alienation of sovereignty” that required the approval of the people of a nation through its legislature.[138] “In order, therefore, that the undivided sovereignty may be transferred in a valid manner, the consent of the whole people is necessary.”[139] This “may be effected,” Grotius observed, “by the representatives of the parts which are called the estates,” or, in modern terms, the legislature.[140] Even if the nation were a monarchy, it still must seek the approval of the people for changes in sovereignty, because the Crown held its power “as if in usufruct.”[141]
Vattel’s The Law of Nations or the Principles of Natural Law followed Grotius’s lead on the alienation of sovereignty.[142] Although both thinkers had sought to derive rules of international law and politics from natural law, Vattel pursued a more extreme position on sovereignty. Grotius, for example, believed that sovereignty sometimes could be vested in a king by its people, just as an individual could sell himself into slavery.[143] Vattel, however, argued for a background principle that “true sovereignty is essentially inalienable.”[144] According to Vattel, this rule was necessary because of the nature of civil society: people form into a society in order to live according to their own laws; a public authority is formed solely to administer those laws; government power cannot be transferred to another entity without the approval of the people who had created the society.[145] Therefore, even if a nation authorizes its leader to represent it abroad, it still cannot delegate to him the authority to transfer sovereignty unless they have given their express approval.[146] In the absence of an express delegation or a history of executive practice, “the concurrence of the Nation or of its representatives” is necessary in order to transfer sovereign powers.[147]
Vattel’s and Grotius’s early discussions of delegated powers in the context of treaties provide an analogy for our discussion. Their conceptualization of an “alienation” of sovereignty is roughly similar to the loss of lawmaking authority that arises in today’s regulatory treaties. While modern agreements do not require the alienation of land or people to another government, they do call for something similar: a sovereign nation’s transfer of control over a certain type of conduct occurring within its territory. To the extent that the works of Vattel and Grotius bear on questions of non-self-execution, they suggest that international agreements that transfer sovereignty cannot be made by the unilateral actions of the executive; international agreements require the consent of the legislative power, which represents the people. As Grotius described it, “[i]n order to validly alienate any part of the sovereignty there is need of a twofold consent, that of the whole body, and in particular the consent of that part of which the sovereignty is at stake.”[148] Approval by the people of such a treaty is necessary, he believed, because “since without its consent [sovereignty] cannot be separated from the body to which it has belonged.”[149] Transplanting these writers to the current discussion, if all of the nation’s people are ceding, in common, part of their sovereign powers over a certain subject matter, then popular sovereignty, as articulated by Grotius and Vattel, would seem to require a majoritarian process to approve the treaty.
In addition to these authorities on international law, the framers would have consulted theorists on domestic constitutional structure. As treaty-making, like war-making, is a fusion of international and domestic law, the framers’ thinking would have been shaped by authorities on both subjects. On this point, the writings of Locke, Montesquieu, and Blackstone had a profound impact upon the thinking of the founding generation.[150] As the work of historians such as Bernard Bailyn and Gordon Wood have shown, the ideas of these thinkers, combined with radical eighteenth century English opposition ideology, provided the intellectual foundations for the American Revolution.[151] Together, these works describe the abstract forms of government that the framers sought to emulate in part, and to reject in part. They also recover conceptions of the separation of powers against which we can measure current arrangements and arguments about the treaty power.
Examination of these sources indicates that eighteenth-century Anglo-American constitutional thought distinguished between the foreign affairs power on the one hand, and domestic legislation on the other, and that this distinction was part of the development of the separation of powers. As others have observed, the birth of the modern concept of the separation of powers occurred in England during the time of the Civil War and the Protectorate.[152] Attempting to justify the constitutional change rendered by the execution of Charles I and the dissolution of the House of Lords, English political thinking began to move away from the model of mixed government B the ancient idea that government should be composed of representatives of the different classes of society (monarch, nobility, and the people) who could check and balance one another.[153] In its place, English writers articulated a rudimentary constitutional theory that sought to divide government by function, rather than by class. In his Second Treatise of Government, John Locke distinguished between the legislative power and the executive power, and then differentiated the functions of the executive power itself. Both powers derived, according to Locke, from man’s abilities in the state of nature. The legislative power traced its roots to the individual’s power to do as he pleased. The executive power found its origins in the individual’s right to punish crimes against natural law. In a modern commonwealth, the legislative power included the authority to establish rules of conduct, while the executive power, a “power always in being,” bore responsibility to “see to the execution of the laws that are made and remain in force.”[154]
On the subject of foreign affairs, Locke identified within the executive authority yet another power, the “federative” power. Although individuals, when they form a society, are governed by its laws, they are still “in the state of nature with the rest of mankind.”[155] Thus, a federative power was necessary to govern “the power of war and peace, leagues and alliances, and all the transactions with all persons and communities without the commonwealth.”[156] While the federative and executive powers were usually vested together, Locke observed that they were “really distinct in themselves.”[157] The executive power was concerned with “the execution of the municipal laws of the society within itself upon all that are parts of it,” while the federative power was focused on “the management of the security and interest of the public without, with all those that it may receive benefit or damage from.”[158] Locke’s reason for differentiating the federative from the executive power, where no one had before, is important. Locke envisioned the executive power as providing an agency of government that, since it was always in being, could execute the laws that an intermittently sitting legislature would enact. Executives would be subject to the laws passed by the Parliament, which should establish rules to anticipate most domestic contingencies. Foreign affairs, by contrast, “is much less capable to be directed by antecedent, standing, positive laws” because “what is to be done in reference to foreigners,” since it was dependent on their actions, “must be left in great part to the prudence of those who have this power committed to them.”[159] Because foreign affairs are not easily controlled by prior legislation, when the executive acts abroad it is not actually executing the law. Instead, the executive is leading a united society in its relations with other societies, governed only by the law of nature.[160] In this respect, the executive’s performance of the federative function is similar to its use of the prerogative, which allows it to act in its discretion to protect the society in cases in which the law did not provide, or in which strict application of the law would harm the community.[161]
Modern treaties raise difficulties for this vision of government because, while they involve foreign affairs, their actual intent and effect is to regulate the domestic conduct of private parties. Unlike the exigencies of war and peace, which were the concern of the federative power, today’s treaties do not involve matters that are incapable of control by “antecedent, standing, positive laws.” In fact, today’s international regulatory agreements exist to do exactly that, to establish positive rules of conduct that will govern the activities of individuals. Locke’s vision of the separation of powers suggests that the legislative power --- not the executive’s federative power --- would govern matters that could be governed by antecedent rules and that were not subject to the sudden flux of international relations. This conclusion is consistent with Locke’s broader goal of subjecting the executive to the rule of law, and of restricting the ability of the government to act in a manner “absolutely arbitrary over the lives and fortunes of the people.”[162] By establishing a separation of powers, Locke sought to subject the power to regulate individual conduct to rules that would ensure accountability and fair process. Hence, legislative action could not be exercised by “extemporary, arbitrary decrees,” but only by general, promulgated laws. Nor could the legislative power be exercised by anyone other than the people’s representatives. “[T]he legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others.”[163] Locke’s non-delegation principle ensured that the legislature could not avoid the checks on its power by delegating it to another body, such as the monarch. Locke’s principals of legislation would find the new species of treaties similarly troubling, due to their transfer of lawmaking authority to international institutions. In a sense, the use of the federative power to enact domestic regulations would have raised in Locke’s mind the fear of uniting the executive and legislative powers.
Locke was not the only English political writer who influenced the thinking of the framers. As intellectual historians such as Bailyn, Wood, and J.G.A. Pocock,[164] have shown, the revolutionary generation was steeped in the opposition “Country” mentality that challenged the “Court” policies of the Walpole administration.[165] Not quite the result of partisan conflict, this difference of ideology arose among the landed gentry in reaction to the establishment of a permanent executive ministry, under the Hanoverian kings, that oversaw a new financial and administrative system that funded Britain’s expensive wars and managed the national debt.[166] Polemicists such as John Trenchard and Thomas Gordon, the authors of the popular Cato’s Letters, interpreted these developments as an effort by the Crown and its ministers to corrupt the mixed constitution, which had maintained the liberties of the people by balancing power against power.[167] A power-grabbing ministry used bribery, the sale of offices, costly wars, a standing army, and heavier taxes and public debts, to sap the independence of Parliament, oppress the people, and enrich the upper classes. Such methods allowed the Crown to engage in an end run around the checks-and-balances of the ancient constitution, and gave it the ability to erode Parliament’s ability to defend the rights of the people. In response, Country writers urged a return to simpler government, with less bureaucracy and war, in which Parliament recaptured its independence and control over funding and legislation.
Locke and English opposition thought reached the framers both directly and through the writings of Charles Louis de Secondat, Baron Montesquieu.[168] In the field of foreign affairs, Montesquieu closely followed Locke’s example in maintaining a line between war and peace, on the one hand, and domestic legislation on the other. His famous discussion of the English constitution in Spirit of the Laws begins with the declaration that “[i]n each state there are three sorts of powers: legislative power, executive power over the things depending on the right of nations, and executive power over the things depending on civil right.”[169] Montesquieu adopted Locke’s understanding of the executive power as composed of a foreign affairs power (Locke’s federative power) and a domestic authority to execute the law. Under the foreign affairs power, Montesquieu observed, the executive “makes peace or war, sends or receives embassies, establishes security, and prevents invasions.”[170] Legislative power, in contrast, encompasses the authority to declare the “general will of the state” and the rules of conduct that citizens owe one another. Apart from establishing the domestic regulations that bound society, the legislature also maintained a check on the executive through its funding power, particularly in the area of foreign affairs.[171] While Montesquieu’s major innovation in separation of powers thought was his argument in favor of an independent judiciary, which apparently was to have no role in foreign affairs, he wrote little that altered Locke’s basic vision of a federative power that remained distinct from the legislature’s regulation of domestic conduct.
As Locke had acknowledged, however, the federative power was fused often B if not always B with the executive power because both functions required quick, decisive action. In his Commentaries on the Laws of England, William Blackstone took Locke one step farther. He declared that foreign affairs was a pure executive power B in fact, it was the quintessential executive function.[172] Initially, Blackstone had followed Locke’s emphasis on the functional superiority of the executive as the reason for vesting the treaty power in the Crown. Because “it is impossible that the individuals of state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves,” Blackstone observed, “with regard to foreign concerns, the king is the delegate or representative of his people.”[173] Hence, the people vested their foreign affairs power in the King because “unanimity must be wanting to their measures, and strength to the execution of their counsels.”[174] Blackstone employed similar functional reasoning in explaining the Crown’s sole control over the military, declaring war, and negotiating with foreign nations.[175]
But Blackstone then went even further by shifting the justification, from functionality to sovereignty, for the location of the treaty power in the King. Quoting Puffendorf, he argued that treaties must be made “by the sovereign power” so that it would be “binding upon the whole community.”[176] In the case of treaties, “in England the sovereign power, quoad hoc, is vested in the person of the king.”[177] Because the Crown served as the representative of all the people in the area of treatymaking, Blackstone argued, “no other power in the kingdom can legally delay, resist, or annul” the King’s treaties, which he called “contracts.”[178] “What is done by the royal authority, with regard to foreign powers, is the act of the whole nation,” Blackstone concluded.[179] His treatment of the treaty power in this respect was consistent with his overall approach to the executive, in which he collapsed the distinctions that Locke had drawn in describing the power of the Crown. Thus, Blackstone describes the treatymaking and warmaking powers as the “principal prerogatives of the king,”[180] and subjects them to the control of the law, whereas Locke thought of the prerogative as an extra-constitutional authority.
Again unlike Locke, Blackstone did not undertake a detailed consideration of the nature of legislative power. Certainly, the English jurist recognized that Parliament played the dominant role in the regulation of domestic affairs. Parliament, Blackstone said, was “the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms.”[181] Parliament enjoys the “sovereign and uncontrollable authority” in all forms of legislation concerning matters “of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal.”[182] Parliamentary authority, Blackstone noted, had regulated the succession to the Crown, changed the national religion, and even altered the constitution. “That what the parliament doth, no authority upon earth can undo,” Blackstone wrote.[183] While the Crown could issue proclamations interpreting and enforcing parliamentary laws, it could not “contradict the old laws, or tend to establish new ones,” because “the making of laws is entirely the work of a distinct part, the legislative branch, of the sovereign power.”[184] Blackstone, however, does not seem to have considered the interaction between the Crown’s monopoly over the treaty power and Parliament’s supremacy over the regulation of domestic affairs. For example, Blackstone does not discuss what would happen if a treaty required domestic legislation for its implementation due to, for example, the need to vote funds or to change statutory or common law. Yet, Blackstone’s declaration of parliamentary supremacy over taxation and domestic legislation would suggest that only the legislature could implement treaties that required such action.
Blackstone’s categorization of the treatymaking power as part of the royal prerogative suggests that he too thought of treaties as separate from domestic lawmaking. Modifying Locke, he conceived of the prerogative as acting in those situations in which “the positive laws are silent,” rather than as a power to act in the public interest even against the standing laws. Impeachment was the only remedy for misuse of the prerogative,[185] because the prerogative was instant action, rather than ongoing regulation; repealing legislation would be of little use in reversing the prerogative, because its exercise would cease once the royal action had ended. In this respect, the treatymaking power was of a part with the other significant royal prerogative in foreign affairs, the power to declare war. Blackstone envisioned impeachment as one of the chief parliamentary checks on the Crown’s exclusive authority to make war, and as treaties usually accompanied the outbreak of war and the agreement for peace, it seems unsurprising that the constitution treated the two powers in the same manner.[186]
Although Blackstone was not as clear in his thinking as perhaps Locke or Montesquieu, he implicitly shared their distinction between treatymaking and lawmaking. This difference in approach but similarity in outcome may have resulted from Blackstone’s thinking on the separation of powers. Locke and Montesquieu pursued a pure separation of powers scheme, in which each governmental function was classified as either legislative, executive, and judicial and then allocated to that branch. Blackstone, on the other hand, adapted the separation of powers to a more traditional balanced government framework, in which different functions were distributed so that each organ of government could check the other.[187] In the former scheme, maintaining a line between treatymaking and lawmaking fits the distinction between executive power in foreign affairs and legislative control over domestic regulation. Limiting the treaty power to matters of international affairs, however, and requiring parliamentary participation for any treaty undertakings of a domestic nature, also performed a valuable service by providing Parliament with a check on the royal prerogative over international agreements. As we will see presently, these theoretical discussions of the treaty power drew upon the actual workings of British politics in the seventeenth and eighteenth century.
In considering the treaty power, the Framers would have looked as much to recent British political history as to the intellectual thinking concerning the separation of powers. While drafting and discussing different constitutional provisions, the delegates to the Constitutional Convention, the writers in the press, and the Federalists and Anti-Federalists in the state ratifying conventions often turned to British examples to predict how different governmental arrangements would work out in practice.[188] British political history was the framers’ shared history, at least until 1776, and in many ways the revolutionaries had believed that they were defending the ancient constitution against the political corruption that had appeared to take hold of the British government after the Seven Years’ War.[189] Furthermore, while Locke, Montesquieu, and Blackstone certainly informed the framers’ thinking on the formal aspects of the British constitution, that constitution itself was not a fixed document. It was instead a series of unwritten principles that changed in response to significant political events and practices. To understand the British constitution, and the background principles it embodied for the framers, we have to retrace British political history of the seventeenth and eighteenth centuries as it related to treatymaking and lawmaking.
Struggle over the powers of war and peace would have rested in the center of the framers’ memories of recent British political history. The contest between Crown and Parliament for primacy in foreign affairs was a critical element of the Civil War, the Interregnum, the Restoration, and the years of settlement. While the Crown entered the seventeenth century with absolute authority over treatymaking, this monopoly came under attack by Parliament, which primarily used its control over finances to win significant influence over the course of foreign policy. During the Interregnum, Parliament went farther and claimed ultimate control over issues of war and peace, but formal authority over treaties was returned to the monarchy during the restoration. Nonetheless, the political settlement of the eighteenth century provided Parliament with significant checks on the treaty power through its monopoly over domestic lawmaking. After the struggles of the seventeenth and eighteenth centuries, the British constitution did not permit treaties to regulate domestic conduct, nor did it require Parliament to fund or implement treaty obligations. Such a result would have subverted both the separation of powers and the checks-and-balances principles that two centuries of political struggle had wrought.
While by the end of the Elizabethan period the Crown had retained its monopoly over foreign affairs, under the Stuarts foreign affairs became the source of one of the central conflicts between the monarchy and Parliament.[190] Initially, James I had attempted to rule England without calling Parliament into session B primarily by relying on revenues from Crown properties B because Parliament had provided a forum for the criticism of Stuart policies. But the beginning of the Thirty Years War in 1618 led James I to undertake several military and diplomatic initiatives requiring the financial support of Parliament, which had the sole constitutional power to raise taxes and vote supplies.[191] Parliament, however, distrusted James’s motives and his foreign policy goals, which included the establishment of an alliance with Spain and France.[192] Though it had no formal role in the treatymaking process, Parliament used its powers over supply to force James to alter his diplomatic strategy to one of hostility toward the Catholic powers. In 1621, Parliament petitioned James, in return for a small subsidy, to terminate his alliance with Spain and attack her in order to slow down the pace of Catholic victories in Germany.[193] In response, the King rejected these legislative efforts to alter his foreign policy, warned the Commons that “none therein shall presume henceforth to meddle with anything concerning our Government or deep matters of State,”[194] and claimed that Parliament’s powers derived only from the monarchy’s “grace and permission.”[195]
Yet, the Crown soon realized that without adequate funds its ability to conduct a meaningful foreign policy was impossible. By 1624 James gave in, called another Parliament, and even publicly sought its advice on foreign policy.[196] Acceding to legislative demands, he terminated his treaties with Spain and engaged in war against his former allies in Germany, in exchange for new grants of funding that were contingent on an anti-Catholic policy.[197] Charles I’s ascension to the throne in the following year led Parliament to push its powers even farther. In exchange for larger subsidies to pursue the new foreign policy, Parliament demanded that the Crown terminate its alliance with France and explain the conduct of military operations on the Continent.[198] Resisting what he saw as further encroachment on the prerogative, Charles ruled without Parliament for eleven years, during which time the Crown raised funds through forced loans, a tax on maritime communities to support the navy, and the sale of royal property.[199] By 1640, internal rebellion in Scotland forced Charles to turn to Parliament again for supply, and this set in motion another struggle over the prerogative and funding that eventually led to Cromwell, Charles’s execution, and the Interregnum.[200] Even during this final struggle, Parliament recognized that the King retained the power to make treaties, although it sought to force the King to use that power to enter into alliances with other Protestant nations as one of the conditions for parliamentary cooperation.[201] In his final answer as King, Charles admitted that the Commons exercised a check on his foreign affairs powers by its control over lawmaking, funding --- which he called “the sinews as well of peace as of war” --- and impeachment.[202] Until his execution, Charles consistently refused to accept any proposals for further parliamentary controls over war and peace.[203]
Governing without a king produced several experiments concerning the allocation of the treaty power, all of which maintained its distinction from the authority to legislate. Some early proposals for a new constitution placed the conduct of foreign policy in the hands of a king with a Council of State, but with control over war and peace ultimately in the hands of Parliament, while others centralized all powers in the Parliament.[204] Throughout these experiments, the victors continued to distinguish between “the enacting, altering and repealing of laws” that governed domestic conduct on the one hand, and “the making war and peace” and the “treating with foreign states” on the other, even when both powers were given to the same body.[205] In all of these proposals, the power to legislate remained in the hands of Parliament, which was seen as the representative of the people, while the treaty power was vested either in Parliament as a whole or in an executive with the participation of the Parliament or its representatives.[206] Cromwell’s efforts to legitimate his military government through written constitutions continued to recognize this distinction. In the Instrument of Government, which he issued in 1653 to a hand-picked Parliament, all the “supreme legislative authority” of the English Commonwealth was vested in the “Lord Protector” and the Parliament by the people.[207] The Instrument did not view the treaty power as part of this authority. Instead it separately vested the powers to conduct foreign affairs and to make war and peace upon the Lord Protector and his council of advisers. In contrast, the Instrument declared that “the laws shall not be altered, suspended, abrogated, or repealed, nor any new law made, nor any tax, charge or imposition laid upon the people” without the consent of Parliament.[208] Four years later, the instability of the political system gave rise to yet another constitution, the Humble Petition and Advice, which came even closer to reproducing the old Constitution’s division of powers by allocating treatymaking to the executive and reserving domestic lawmaking to Parliament.[209]
Restoration of the monarchy soon renewed tension with Parliament over funding and legislation in support of foreign affairs. From 1660 to the end of the Seven Years War in 1763, Great Britain engaged in at least seven major conflicts, the initiation or settlement of which involved treaties that often called upon Parliament either to provide money or to enact commercial legislation.[210] These continued conflicts forced the Crown to involve Parliament in the setting of foreign policy. Even though Charles II’s return brought a restoration of the monarchy’s ancient powers over war and peace,[211] Parliament had firmly established its own formal control over legislation and taxation.[212] Making treaties or pursuing a successful foreign policy would thenceforth require the cooperation of Parliament.[213] In addition to funding the wars against the Dutch in 1665 and 1672, Parliament was also called upon to enact a series of Navigation Acts in order to wage economic warfare upon the United Provinces.[214] Although the Crown retained the initiative in foreign affairs throughout this period, Parliament at times sought to use its powers to persuade Charles II to adopt a more vigorous stance against France. In 1677 and 1678, for example, the Commons voted funding for the military contingent on the formation of an alliance against Louis XIV, and in so doing declared that it would refuse to “grant supplies for maintenance of wars and alliances before they are signified in parliament.”[215] Although Charles protested this invasion of his prerogative over treatymaking,[216] he eventually entered into an alliance with the Dutch against France, as Parliament had desired.[217] Charles ended his reign by governing without Parliament, and funding his administration by subsidies from Louis XIV, which only demonstrated further that the Crown could not conduct a meaningful foreign policy and enter into treaties without parliamentary support.
While the 1688 Glorious Revolution produced no formal rearrangement of this constitutional balance between Crown and Parliament,[218] the years of settlement witnessed the rise of Parliament, through the use of its constitutional powers, as a political counterweight in the field of international affairs. At the turn of the century, Parliament began to use its authority of legislation and funding to repudiate treaties with more regularity. In 1698 and 1700, for example, parliamentary opposition effectively prevented William III from living up to what were known as the Partition treaties,[219] while in 1713 Parliament rejected outright an Anglo-French commercial treaty that was seen as crucial to the government’s efforts to repair relations with France.[220] Parliament’s funding powers gave it a formal veto over any treaties that required military expenditure, financial subsidies to other powers, or favorable commercial treatment. Yet, just as parliamentary resistance could render treaties stillborn and frustrate Crown policies, parliamentary support had the opposite effect. Parliament’s financial and, perhaps more importantly, its political support allowed the Crown to act with a stronger hand abroad by signaling domestic stability and access to resources to carry out threats and promises.[221] “As Parliament was the public forum in which the ministry formally presented and defended its policy and was criticized in a fashion that obliged it to reply,” a British diplomatic historian of the period has observed, “it was Parliament where the public debate over foreign policy can be seen as most intense and effective.”[222] Even if the funding check should fail, Parliament ultimately could use the power of impeachment to remove ministers for pursuing treaties with which it disagreed.[223] Parliament’s constitutional role gave it the leverage to become a forum for the determination of foreign policy and the national interest.[224]
By the time of the framing, then, the British constitutional system had reached an accommodation concerning the royal prerogative over treaties that provided the legislature with a significant role in their making. While the Crown formally enjoyed an absolute monopoly over treatymaking, Parliament retained the authority to make any changes in the domestic law or to raise the revenue needed to comply with the agreement.[225] As one British diplomatic historian has acknowledged, Parliament’s authority over implementing legislation and financial support allowed it to “exert[] a more direct influence over foreign policy” than the formal allocation of constitutional powers would suggest.[226] Britain’s rule was not some peculiar practice that developed more through happenstance than thought. Rather, the distinction between the power to legislate and the power to make treaties was a core element of the separation of powers and the rise of parliamentary government. It provided Parliament with an important means to check the Crown’s power in foreign affairs, one that it gradually used to seize an influential role in the setting of national policy. Not only did this shared history inform the framers as they ratified the Constitution, it also suggests that any effort to reverse the British rule would have prompted significant protest and opposition, as it would have removed one of the legislature’s crucial checks on the executive.
Although the Treaty Power may not have been as central to the Revolution as the issue of taxation, the relationship between the legislative power and foreign affairs was bound up in the crucial revolutionary dispute over the nature of sovereignty. We can understand the constitutional arguments of the revolutionaries as a defense of the rights of popularly-elected assemblies to enact internal legislation, free from the dictates of a foreign affairs power exercised by a central government. As the colonies became independent states, bound to each other through the Articles of Confederation, they maintained the distinction between treaties and legislation, with the former vested in the central government and the latter in the hands of the state legislatures. This continuing separation of powers, divided between two levels of government rather than two branches of government, caused enormous foreign policy difficulties for the new nation. State refusal to implement and observe treaty obligations not only provoked Great Britain into maintaining a military presence within American borders, it also undermined American diplomatic efforts to reach vital trade agreements with the European great powers. In short, the nature of treaties and their place in the American legal system developed into one of the critical questions for American foreign policy and the future of the Union. We cannot understand the decisions made during the ratification without understanding the foreign policy and political context of the Revolution and of the Articles of Confederation.
Efforts to address what was a federalism question --- how to ensure compliance with national treaty obligations --- soon became a separation of powers question --- what process, at the national political level, ought to govern the making of treaties and their domestic enforcement. The challenges of the Critical Period (as the period between the Peace with Great Britain and the ratification of the Constitution is known)[227] produced different proposals for reform from three of the future leaders of the ratification effort: Alexander Hamilton, John Jay, and James Madison. Hamilton and Jay believed that the treaty power ought to subsume within it the power of internal legislation, and that state judges ought to directly enforce treaty terms. Madison, however, sought to reconcile the treaty power with proposals for a truly national government that would emerge at the Constitutional Convention. In his vision, the treaty power had to rely upon the national organs of government for enforcement, which included the federal legislature as well as the federal courts. Legislative powers, Madison believed, still should remain distinct from the treaty power. The thinking of these future collaborators would set the stage for the debate over the treaty power, and over larger questions of national sovereignty, that would arise during the Constitutional Convention and the ratification debates.
This Part will discuss these elements of the story in three subparts. Subpart 1 will review the understanding of the power of legislation during the revolutionary period. Subpart 2 will discuss the allocation of the treaty power under the Articles of Confederation. Subpart 3 will examine the disputes that arose under the Articles of Confederation concerning the relationship between the treaty power and the power of legislation.
A ratifier studying the treaty power in the proposed Constitution would have drawn upon not only British constitutional history, but also the revolutionary experience. Questions regarding treaties, their implementation, and the role of the three branches of government would have raised analogies to the constitutional issues at stake in the break with Great Britain. As several historians of the Revolutionary period have shown, the Americans of 1776 believed that they were defending their customary constitutional rights from tyranny and corruption on the part of the King and Parliament.[228] Colonists argued that the Crown and Parliament had overstepped their constitutional boundaries by forcing them to pay for the costs of the Seven Years’ War and the continuing expenses of Britain’s colonial military presence. While Americans agreed that the treaty power and other foreign affairs powers were the province of the central government in London, they argued that these authorities remained distinct from powers over internal matters, such as taxation and supply, that rested within the province of the colonial assemblies. This barrier between foreign affairs and domestic law would continue throughout the early years of independence, creating difficulties that would lead to the Constitutional Convention in 1787.
While the constitutional relationship between the American colonies and Great Britain at the end of the Seven Years’ War was uncertain, we can identify some broad outlines. Power was not centralized in London; rather, it was diversified at different levels on different issues. Until the early 1760s, King and Parliament had almost entirely avoided any interference in internal colonial matters, while the colonies acknowledged the Crown’s primacy over foreign policy, particularly in war and treatymaking.[229] Like their counterpart in the mother country, the colonial assemblies exercised full legislative powers within their jurisdictions, and in fact they were even able to enjoy substantial influence upon the governor’s control over foreign affairs through their control over the purse.[230] As Professor Bailyn has observed, King and Parliament “touched only the outer fringes of colonial life; they dealt with matters obviously beyond the competence of any lesser authority . . . All other powers were enjoyed, in fact if not in constitutional theory, by local, colonial organs of government.”[231] A series of political precedents, and constitutional custom, had established the assemblies as the political representatives of the colonists on internal matters. “The colonial assemblies by the middle of the eighteenth century,” Professor Greene writes, “managed through precedent and custom to establish their authority and status as local parliaments, as the most important guardians of the colonists’ inherited rights as Englishmen, including especially the right not to be subject to any taxes or laws relating to their internal affairs without the consent of their representatives in assembly.”[232]
Beginning with the imposition of the Stamp Act in 1764, Parliament’s efforts to change this arrangement helped precipitate the American Revolution. In order to pay for the costs of the Seven Years’ War, and for the continuing military protection of British North America, Parliament sought to impose taxes and internal regulations upon the colonies. It based its actions upon an evolving theory of parliamentary supremacy both in Britain and in America.[233] London’s actions sparked such resistance because parliamentary supremacy trenched on at least three firmly-held beliefs on the part of colonial Americans, beliefs that would have looked with suspicion on efforts to eliminate the distinction between foreign affairs and domestic legislation. First, from an ideological perspective, the Crown’s efforts to extend its monopoly from foreign affairs to internal legislation amounted to a plan to overturn the balanced constitution in favor of a centralized absolutist state centered around government bureaucracy, standing armies, and the new financial classes. In other words, the predictions of the eighteenth century Country, or oppositionist writers in Britain, whose works helped shape the framers’ world-view, were coming true.[234] More than a rationalization for revolution, this mindset gave meaning to the new taxes, the new declarations of supremacy, the quartering of soldiers, and the closing of ports. The founding generation interpreted these events as a deliberate conspiracy by the Crown and its ministers, in an effort to establish a military-financial state, to corrupt Parliament and to use its legislative authority to steal individual liberty.
Second, as John Philip Reid has argued, the events leading to Revolution took place in a rapidly evolving constitutional context in which colonists and those in the mother country were coming to have different views. British defenders of the Stamp Act and the Declaratory Act located all sovereignty in the empire in the King-in-Parliament; its legislation had to be supreme, therefore Parliament was supreme.[235] Under this theory, Parliament was supreme over the Crown, and as the final sovereign voice in the British government, Parliament was supreme over the colonies. Parliamentary sovereignty and supremacy could admit no place for the claims of colonial assemblies to a constitutionally-guaranteed power over taxes and internal regulation. American revolutionaries responded by calling upon an earlier vision of the British constitution, in which the colonists and their assemblies enjoyed a direct relationship with the English king, rather than with Parliament. From the founding of the colonies, these revolutionaries argued, the Crown had granted the colonists the right to regulate themselves on all internal matters, just as Parliament possessed the power to legislate in Great Britain.[236] In their minds, there was a clear distinction between the power to legislate --- the essence of the Revolution was where this power lay, in the assemblies or the Parliament --- and executive power, such as the power over war and treaties, which remained unchallenged in the King. Revolution came not because of the King’s decision to fight the Seven Years’ War, or the stationing of troops and bureaucracy in British North America. Rather, the fight came when Parliament sought to pass legislation for the colonies without the consent of the assemblies. From the colonial perspective, the Revolution responded to Parliament’s effort to seize the power of the colonial assemblies over domestic legislation, which served as a critical counter-balance to the Crown’s control over the military and foreign affairs.
Parliament’s attempts to bring the colonies under tighter imperial control would have raised alarm bells on yet a third level, that of colonial institutional politics. As Greene has observed, “[t]he rise of the representative assemblies was perhaps the most significant political and constitutional development in the history of Britain’s overseas empire before the American Revolution.”[237] Formal constitutional arrangements vested great power in the royal governors, who possessed the authority externally to wage war, make treaties (which they generally did with Indian tribes), and represent the colony in inter-colony negotiations.[238] Internally, governors enjoyed the authority to veto laws, to prorogue the legislature, to appoint officers and to sit as a court of equity.[239] Formal authority, however, did not yield actual power. During the period after the Glorious Revolution, the assemblies engaged in a campaign to win the rights to tax, to control funding, and to enact laws.[240] Because Parliament did not finance colonial governments, governors were dependent on the assemblies to fund their operations and, eventually, even British colonial forces. Assemblies came to be identified closely with the individual rights of the colonists themselves, particularly the right to representation and the right to govern their own internal matters.[241] After the Seven Years’ War, the assemblies had pushed their powers even beyond those enjoyed by the House of Commons, and they had taken a strong hand in developing an independent role for themselves in the British constitutional and imperial system.[242]
From an institutional perspective, measures like the Declaratory Act were an effort to impose a centralized imperial government upon a system that had allowed several independent political power centers to develop. Parliament’s metropolitan theory of empire threatened the political existence of the assemblies, and it was no mistake that as events moved toward a break with the mother country, Parliament suspended the New York assembly and sought to alter the Massachusetts assembly. The Revolution became a fight not just for individual liberties, but for the rights of the assemblies and of self-government as well.[243] Fusing control over foreign affairs and internal legislation in the same government, even if it were King-in-Parliament, would have threatened the institutions that had become central to American political identity.
Upon achieving independence, Americans maintained the separation between war and treaties, on the one hand, and funding and internal legislation on the other. Power over foreign relations formally devolved to the Continental Congress, which replaced the King as the executive branch at a national level. Contrary to the mistaken assertions of some foreign affairs scholars,[244] legislative powers B even in the foreign affairs area B remained with the state assemblies, while under the Articles of Confederation the Continental Congress assumed the functions of the Crown.[245] Treaty-making under the Articles of Confederation did not metamorphose into a legislative function, but remained an executive function subject to the traditional legislative check of funding and implementing laws, once in the hands of Parliament but now possessed by the assemblies. Government under the Articles had a separation of powers, but one that existed vertically rather than horizontally.
Having created a vacuum in executive authority by breaking with the Crown, the drafters of the Articles transferred all foreign affairs powers to the Continental Congress. Article IX declared that Congress possessed “the sole and exclusive right and power of determining on peace and war.”[246] This monopoly extended to “treaties and alliances,” which required the approval of a super-majority of nine states.[247] The Articles anticipate the Constitution in pre-empting virtually all state activity with foreign nations. Article VI prohibited states both from sending or receiving ambassadors or from “enter[ing] into any conference, agreement, alliance or treaty” with any foreign nation or King without the consent of Congress.[248] States also could not enter into any “treaty, confederation or alliance” with each other without congressional approval.[249] Finally, Article VI prohibited states from imposing any imposts or duties, “which may interfere with any stipulations in treaties,” already made or proposed, at the time of the Articles’ ratification, between the United States and France or Spain.[250] Article VI’s explicit bar on this narrow type of implementing legislation implies that states possessed a broader authority over domestic execution of treaty obligations, an implication further reinforced by Article II’s general reservation of each state’s “sovereignty, freedom, and independence, and every power, jurisdiction, and right” not “expressly delegated” to Congress.[251]
The separation of powers between the Continental Congress and the states paralleled the division of authority between Crown and Parliament. Just as the Crown required the cooperation of Parliament in implementing and funding treaties, so too did the Continental Congress rely upon the states for supplies and changes in their internal laws to execute the nation’s international obligations. Congress could not pass laws that applied to individuals; it could not impose direct taxes or raise troops; it could not regulate interstate commerce. Congress could only enact requisitions upon the states for supplies and recommend legislation to the assemblies for adoption.[252] As historians Eugene Sheridan and John Murrin have observed, “the legislative powers of Parliament tended to devolve upon the states, while the executive powers of the crown passed to Congress, which we should probably conceptualize as more of a plural executive than a legislature.”[253] The Revolutionary generation had rebelled against Parliament because it had imposed taxes and internal regulations without representation. As only the states (which had one vote each), and not the people, were represented in Congress, it would have made little sense under revolutionary ideology to grant Congress the power to legislate either by treaty or by statute.
Organization of the central government, which forced Congress to rely upon the states for funding and legislation, suffered from two additional defects. First, the Continental Congress, although an executive branch, was plural in nature, and its history is the tale of failed efforts to exercise its powers effectively.[254] Second, its representation bore no relationship to population, thereby creating a threat that sectional concerns could override the national interest. One congressional controversy over foreign policy is worth examining in detail, because it would become an important touchstone for the ratification debates that would occur the following year on the treaty power. From 1785‑86, John Jay, as secretary for foreign affairs, had negotiated with Spain concerning various boundary disputes involving the United States and Spain’s North American territories.[255] Chief among these issues was the question whether American settlers would have the right to navigate the southern reaches of the Mississippi River, which passed through Spanish territory on its way to the sea. Spain had closed its portion of the Mississippi to American commerce in 1784; Congress specifically instructed Jay that any treaty with Spain had to win back that right.[256] Spain’s ambassador, Don Diego de Gardoqui, refused to accede to this demand, out of Spanish fears of America’s westward expansion. Instead, de Gardoqui offered to enter into a commercial treaty that would benefit the northeastern port cities of Boston, New York, and Philadelphia, but that would not open the Mississippi to American shipping. With negotiations at an impasse, Jay sent home for guidance.
Faced with this choice, Congress in the summer of 1786 considered whether to modify Jay’s instructions and in so doing opened up a sharp sectional divide. Seven northern states from New Hampshire to Pennsylvania stood to gain from a liberal commercial treaty with Spain. For the Southern states, however, closing the Mississippi would cut off their expansion into the West.[257] Although two‑thirds of the states were required to make a treaty, a simple majority could terminate negotiations altogether.[258] This meant that the four Southern states, joined by Maryland, could not terminate the negotiations, but that they could successfully block the ratification of any treaty. Nonetheless, the Northern states, by a vote of 8-5, defeated Southern attempts to end the Jay‑Gardoqui discussions, and instead by a simple majority allowed Jay to dispense with the Mississippi River demand.[259] But since five states had declared their opposition to such a provision, any treaty without free navigation of the Mississippi would fail to receive the necessary two-thirds vote. [260]
Nonetheless, controversy over the Jay-Gardoqui negotiations had threatened the dissolution of the Union. It had forced the states into two hardened camps defined by economic and sectional self-interest. As an economic and foreign policy dispute that had mutated into a constitutional one, it had revealed structural shortcomings in the way that the Articles of Confederation distributed the treaty-making power. To southerners, even the two-thirds requirement failed to protect the national interest, especially in regard to treaties that raised sectional divisions. The Jay-Gardoqui controversy suggested that less than two-thirds of the states could pursue agreements that were not in the best interests of the majority of the people. Southern delegates emerged from this controversy questioning whether a two‑thirds requirement for treaties, with each state possessing one vote, provided adequate protection for their economic and territorial interests. It would lead Southern leaders in the next two years to search for a better approach to treatymaking that would include a more democratic voice to represent the people. It also demonstrated to some, such as James Madison, that treaty disputes could threaten the dissolution of the Union unless contained by a broader, republican national government.[261]
Foreign policy failures were central to the primary effect in the Articles’ treatymaking structure: the freedom of the states to ignore or frustrate treaties. Enforcing treaties during the Critical Period, became one of the key problems that led to the movement for a new constitution. Under the Articles, Congress had no textual authority to compel states to enforce treaties, or to obey any national legislation, and Congress was left in the position of requesting that states pass laws to implement the treaty rights of foreign subjects.[262] When it came to the peace with Great Britain, however, many states vigorously resisted congressional requests for implementation, leading to foreign policy setbacks and calls for constitutional reform. This section will describe the problems raised by the Treaty of Paris of 1783, and the manner in which the controversies became a central focus in the minds of three of the leaders of the ratification effort, Alexander Hamilton, John Jay, and James Madison. Not only would their concerns about treaties become well-known, but their thinking would be representative of the pro-Constitution cause, which they would make public as co-authors of the Federalist Papers.[263] Examining their views also will show that the framers were not of one mind concerning the treaty power and federal supremacy, but instead that there were two distinct themes running through the Founding period, one that turned to judicial enforcement of treaties, and the other that looked to a true national legislature that could implement treaties directly.
Inability to command compliance with its foreign policy virtually ensured congressional failure during the Critical Period. Congress could not raise revenue, it could not bargain effectively, it could not enforce a common commercial policy, it could not even promise other countries that the states would observe its agreements. Foreign nations, notably Britain and Spain, refused to enter into commercial agreements to lower trade barriers, because they knew that Congress could not prevent the states from closing off or taxing trade. States would not combine their efforts to win trade concessions from foreign nations, Congress could not guarantee that states would change their laws to comply with any trade treaties, and neither the states nor Congress would cooperate to impose sanctions.[264] As Lord Sheffield, an advocate for a tough policy toward the former colonists said, “America cannot retaliate. It will not be an easy matter to bring the American States to act as a nation. They are not to be feared as such by us.”[265] During the Critical Period, American diplomats managed to negotiate two treaties, a “meaningless” agreement with Prussia, and a treaty of amity and commerce with the Dutch, at a time when the new nation badly needed political and commercial alliances.[266]
The Treaty of Paris highlighted the weakness in America’s governmental structure. Overall, the newly independent states received highly favorable terms: Britain recognized American independence, acknowledged America’s borders to reach as far west as the Mississippi River and as far north as the Great Lakes, evacuated its forces from New York City and the South, and promised to turn over a series of strategic forts in the Great Lakes area.[267] London received three concessions in return. Article IV declared that “Creditors on either side shall meet with no lawful Impediment to the Recovery of the full Value . . . of all bona fide Debts heretofore contracted,”[268] B in other words, London financiers would be able to recover on pre-war colonial debts. Article V stated that “Congress shall earnestly recommend it to the Legislatures of the respective States” to provide for compensation to Loyalists whose property had been confiscated during the war.[269] Article VI prohibited any further confiscation, prosecution, or civil action against individuals based on their roles in the war.[270] The treaty seemed to assume that the provision allowing for recovery of prewar debts required state implementing legislation, a point we will return to later. In any event, British negotiators did not even consider these articles to be much of a victory; in the words of one historian, they were “trifling concessions and empty formulas.”[271]
Nonetheless, the treaty’s compensation and debt provisions proved to be the source of constitutional breakdown in the United States and of corresponding setbacks for American foreign policy. Massachusetts, New York, Pennsylvania, and all of the southern states either had passed laws that had confiscated debts owed to British citizens, or they prevented the collection of such debts after Congress’s ratification of the Treaty of 1783.[272] British diplomats claimed that state courts were refusing to suspend the operation of these laws, even in light of the nation’s obligations under Article IV of the Treaty.[273] As a historian of the period has observed, “[t]here was no question that the United States had violated the peace treaty.”[274] In response, the British refused to evacuate the northern frontier forts, which controlled access to the Great Lakes and nearby rivers.[275] British refusal to relinquish the forts was not just a blow to American pride, but a significant military and economic setback, because the forts served as centers of commerce and as support areas for hostile Indian tribes and loyalists threatening the new nation.[276] Leading American politicians throughout the states concluded that the national government needed the power to force the states to obey treaty obligations in order to solve this crisis, which they feared would soon not be limited just to affairs with Britain.[277]
One of the first to reach this conclusion was Alexander Hamilton, who encountered the issue in the 1784 case of Rutgers v. Waddington. As feelings against Loyalists and the British ran high in New York state, much of which had been occupied at some point during the war, the state assembly passed a series of harsh measures against them.[278] In addition to a wartime confiscation act of loyalist property, the legislature enacted the 1782 Citation Act, which stayed the execution of debts owed to Loyalists, and the 1783 Trespass Act, which allowed Americans who had fled New York City to recover damages from those who had occupied their property during the Revolution.[279] Not only did these statutes come into conflict with the international laws of war, which allowed a defense for civilians acting under the orders of an occupying army, but they violated Article VI of the Peace Treaty, which prohibited further actions against loyalists for their wartime actions. Hamilton decided to challenge the Trespass Act by representing an English businessman who had operated a brewery within occupied New York City during the war.[280] He made three arguments before the state court: first, the Act violated the laws of war;[281] second, the Act violated the Treaty of Paris, which had a legislative effect as part of Congress’s treaty power;[282] third, the court had the authority to invalidate the Act as contrary to the treaty, which had been ratified by Congress and was now part of the New York Constitution.[283] Plaintiffs forcefully responded that state courts, as creatures of the legislature, had no authority to invalidate the statute. In an ambiguous decision, the court avoided the question of the supremacy of the peace treaty by reading the act narrowly, as Hamilton had urged in a subsidiary argument.[284]
To the extent that it is still remembered, Rutgers v. Waddington usually appears in discussions of the early foundations for judicial review.[285] It also stands, however, as one of the earliest B if not the first B American judicial encounters with arguments for treaty self-execution. Moreover, Hamilton’s arguments in Rutgers were more than the product of his representation of a paying client. Around the same time that he was filing briefs in Rutgers, Hamilton wrote two pamphlets, under the pseudonym “Phocion,” that provided a fuller exposition of his arguments against anti-loyalist legislation.[286] Hamilton argued that the Treaty of Paris constituted higher law because it emanated from the Continental Congress, the repository of national sovereignty. “Does not the act of confederation place the exclusive right of war and peace in the United States in Congress?” Hamilton asked rhetorically.[287] “Are not these among the first rights of sovereignty, and does not the delegation of them to the general confederacy, so far abridge the sovereignty of each particular state?”[288] Allowing states to pass laws in conflict with a treaty would “involve the contradiction of imperium in imperio,” wrote Hamilton.[289] Hamilton was unwilling to place any bounds on the extent of the treaty-power, so long as it was used to advance the national interest. “It follows that Congress and their Ministers acted wisely in making the treaty which has been made; it follows from this, that these states are bound by it, and ought religiously to observe it.”[290] Prohibiting treaties from affecting “the internal police” of a state, the rule favored by the legislation’s supporters, Hamilton responded, would make “a mere nullity” of Congress’s power to make treaties.[291] “In short,” Hamilton concluded, “if nothing was to be done by Congress that would affect our internal police . . . would not all the powers of the confederation be annihilated and the union dissolved?”[292] Realizing, however, that his arguments about national sovereignty were not widely shared, Hamilton devoted the large majority of his “Phocion” papers to the economic and political benefits that would accrue to New York should it observe the 1783 Treaty. Nonetheless, it seems clear that Hamilton believed that even under the Articles of Confederation, treaties of their own force already pre-empted inconsistent state law.
John Jay, a fellow New Yorker, shared Hamilton’s views. As Secretary for Foreign Affairs, Jay had concluded that refusal to observe the 1783 Treaty was impeding efforts to reach commercial agreements with Britain, France, and Spain. On October 13, 1786, he presented a report to Congress responding to the British complaints of treaty violations.[293] Jay declared that he “considers the thirteen independent sovereign States as having, by express delegation of power, formed and vested in Congress a perfect though limited sovereignty for the general and national purposes specified in the Confederation,” particularly the war and treaty powers.[294] “When therefore a treaty is made,” Jay continued, “it immediately becomes binding on the whole nation and superadded to the laws of the land, without the intervention, consent, or fiat of State legislatures.”[295] Since the parties to a treaty are the two national sovereigns, observed Jay, “states have no right to accept some Articles and reject others,” or to “subject [treaties] to such alterations as this or that State Legislature may think expedient to make.”[296]
Jay urged Congress to recommend to the states three measures based on these principles. The first declared that the state legislatures could not pass any act “interpreting, explaining, or construing a national treaty” or “restraining, limiting or in any manner impeding, retarding, or counteracting the operation and execution of the same.”[297] Acknowledging the existence of state laws that violated the Treaty of Paris, the second resolution demanded that they “be forthwith repealed.”[298] As a further safeguard, the third recommended that the states repeal any laws that might come into conflict with the Treaty in the future, and it further recommended that the states grant their courts the power to adjudicate treaty questions, “any thing in the said Acts or parts of Act to the contrary thereof in any wise notwithstanding.”[299] In his proposals, Jay had sketched the three elements of one approach to treaty supremacy: national sovereignty was vested in Congress, not the states; state laws inconsistent with national treaties were invalid; state courts were to arrest the operation of state laws that were in conflict with treaties. Following Jay’s advice, Congress on April 13, 1787 issued his report, almost word for word, in its own name to the states, and adopted the three resolutions.[300]
Tellingly, the very form of the resolutions proved Jay (and Hamilton) wrong about treaties under the Articles of Confederation. If the Continental Congress had already enjoyed a legislative power in treatymaking, which pre-empted conflicting state law, then Congress should not have needed to ask the states to repeal their inconsistent laws. Rather than a declaration of congressional supremacy, as set out in Jay’s report, the resolutions demonstrated that the state assemblies still possessed the power to legislate, and that Congress still relied upon the goodwill of the states to carry out its policies. Further, if there were general agreement on Jay’s interpretation of the treaty power under the Articles, one might have expected the states to have complied quickly with Congress’s demands. Seven states did pass such laws, all but one of them from the North, which the Jay-Gardoqui controversy had shown had the most to gain by a more centralized treaty power.[301] All but one of the Southern states that had opposed the change in Jay’s negotiating instructions failed to enact the requested legislation. The weakness of Congress’s effort can be most clearly seen in Virginia’s response, which passed the requested act, but made its operation contingent upon a finding by the governor that Great Britain had surrendered the northern forts.[302] Even at the high-tide for the treaty supremacy effort during the Critical Period, the power to legislate still firmly rested in the hands of the state legislatures.[303]
During this same period, Jay and Hamilton’s future collaborator, James Madison, was engaged in his own examination of the relationship between the treaty power and the power of legislation. By 1786, according to Madison scholars, he had become disillusioned with the state legislatures, which he believed were subject to demagoguery and were engaging in unjust economic legislation.[304] Madison also had become concerned about the divisions in the Continental Congress that had arisen in response to the Jay-Gardoqui controversy.[305] Supporting the opening of the Mississippi as a matter of policy, he feared that the North’s use of its majority power would undermine the cause of strengthening Congress’s powers. After the failure of the Annapolis Convention to expand Congress’s commercial powers, gradual reform no longer held promise and Madison and others turned their attentions to a broader constitutional overhaul. Madison’s singular innovation, which would set him apart from Hamilton and Jay, was to seek treaty enforcement not in the states or their judiciaries, but in a representative national Congress that exercised the power to legislate.
Preparing for the Philadelphia Convention in the spring of 1787, Madison drafted a memo, “Vices of the political system of the U. States,” that laid out much of his thinking.[306] States had obstructed the success of the Confederation by encroaching on congressional powers, violating treaty obligations, and refusing to cooperate on matters of national interest. As examples of the first, Madison cited wars and treaties between the states and the Indians and unapproved interstate compacts.[307] As examples of the second, Madison recited the violations of the Treaty of Paris, which he traced to the parochial outlook of state legislators. “From the number of Legislatures, the sphere of life from which most of their members are taken, and the circumstances under which their legislative business is carried on,” he observed, “irregularities of this kind must frequently happen.”[308] Of the third class of problems, Madison pointed to interstate commerce, which witnessed states discriminating against imports and failing to present a common national front toward other nations. These were not unusual criticisms of the Articles of Confederation system. What made Madison’s thinking original, however, was that it traced these problems to the unrestrained nature of popular government in the states.[309]
While Madison’s Vices are read today mostly as an early version of Federalist No. 10, for its proposal of an expanded republic in order to alleviate the threat of majoritarian tyranny, it less famously traced the problems of the confederation to the state legislatures as well. Why had the Confederation failed? “From a mistaken confidence that the justice, the good faith, the honor, the sound policy of the several legislative assemblies,” Madison wrote, “would render superfluous any appeal to the ordinary motives by which the laws secure the obedience of individuals.”[310] Since the people had never ratified the articles, it was no more than “a treaty of amity, of commerce, and of alliance, between independent and Sovereign States,” rather than part of every state constitution. Therefore, Congress could not enforce its directives upon the states or individuals, nor could it be confident that state courts would enforce its commands over state laws. “Whenever a law of a State happens to be repugnant to an act of Congress, particularly when the latter is of a posterior date to the former, it will be at least questionable whether the latter must not prevail,” Madison observed. “And as the question must be decided by the Tribunals of the State, they will be most likely to lean on the side of the State.”[311]
Madison remained unconvinced that a more perfect union ought to rely upon state judges and legislatures. “It is no longer doubted that a unanimous and punctual obedience of 13 independent bodies to the acts of the federal Government ought not to be calculated on,” he wrote in his Vices memo.[312] Rather, he believed that the federal government needed the power that “would operate without the intervention of the states” directly upon individuals. “A sanction is essential to the idea of law, as coercion is to that of Government,” Madison wrote. “The federal system being destitute of both, wants the great vital principles of a Political Constitution.[313] Once the national government was to promulgate, execute, and adjudicate laws directly upon individuals, however, it had to be fundamentally reorganized to give it three branches of government --- legislative, executive, judicial --- to exercise these new powers.[314] In addition to a federal power that acted directly on individuals, Madison proposed a radical solution: a federal negative on all state legislation.[315] Drawing upon the Crown’s prerogative to review colonial legislation, Madison essentially proposed to make the federal government part of every state legislature; “without this defensive power,” he believed, “every positive power that can be given on paper will be evaded & defeated.”[316] While scholars have focused on the negative on state laws as an effort to control majority oppression of minorities within the states, it also represented a powerful effort to control state encroachment on federal law by means of institutional and political design, rather than through reliance on state judiciaries.[317]
Madison had reconciled the nature of treaties, the power to legislate, and the democratic nature of a new federal government in a way that Hamilton and Jay had not. Hamilton and Jay had sought to clothe in supremacy the decisions of an institution that was more of a treaty organization than a representative government. They chose to rely upon state courts to enforce the law of a different sovereign that did not even function along democratic lines. Most importantly, they failed to consider how their approach to treatymaking and treaty enforcement would change once a representative national government, created by a popularly-ratified document, had come into possession of its own executive, legislative, and judicial branches. They did not ask whether the establishment of a popular, national government would obviate the need for the intervention of the states to enforce treaty obligations. Further, they did not ask whether the treaty power required the participation of the popular branch of government, which would regularly enact domestic legislation, for its implementation.
Madison, however, had given some thought to these questions. The first steps in his reform of the national government was to place it on the firmer footing of popular ratification, to base representation on population, and to vest it with necessary national powers, especially over interstate and foreign commerce. Second, and equally important, the government was to be given the authority to enact and enforce law upon individuals through its own independent institutions. Once the national government is re-constituted in this manner, it no longer need rely upon the states and their judiciaries for implementation of federal law. Such important matters, Madison worried, could not be entrusted to the states. “If the judges in the last resort depend on the States & are bound by their oaths to them not to the Union,” Madison worried, “the intentions of the law and the interests of the nation may be defeated by the obsequiousness of the Tribunals to the policy or prejudices of the States.”[318] Instead of the Articles system, it was far better to create a national legislature and judiciary that would bypass the states entirely.[319] Madison’s approach to treaties and lawmaking can be seen as a part of his broader remedy for the weaknesses of the Confederation: a sweeping reconstitution of the national government into a democratic republic.[320]
These differing approaches to treaty implementation framed the debate that would occur during the ratification of the Constitution and the new government’s early years. Under the Articles of Confederation, the Continental Congress held the traditionally executive power to make treaties, but lacked the legislative authority to implement them. One response, embodied by the legal and political efforts of Hamilton and Jay, was to argue that national sovereignty resided in the Congress, which could make treaties that had direct legislative effect upon individuals. Nonetheless, their view still relied upon the machinery of state government to make real the supremacy of treaties. Leading up to the Constitutional Convention, Madison had begun to sketch out an alternate vision, one that sought to unify the executive treaty power and the legislative power in a different manner. Rather than give treaties a domestic lawmaking power, Madison believed that a sweeping new constitution ought to vest the national government with the true power to legislate. With the force of popular sovereignty behind it, Congress would pass its own laws, implement its own treaties, and rely upon its own independent organs of government, rather than upon the states. Both approaches to treaties and lawmaking would appear during the Constitution Convention, which, while appearing to adopt the Hamilton/Jay system, would provide the grounds for the Madisonian structure to prevail during ratification.
In reconstructing the original understanding of the treaty power, two themes emerge. First, the framers maintained the distinction between treatymaking on the one hand, and legislation on the other, that had characterized British practice and their own thinking during the Revolution and the Critical Period. The Constitution reflects this understanding by maintaining the allocation of treatymaking to the executive branch and lawmaking to Congress. This division of powers did not just empower the Senate by giving it a joint role in treaties, it also protected the lawmaking process by limiting treaties to an executive function. Second, concern about the anti-democratic nature of the treaty process led at least some of the leading framers to accept a role for the popularly-elected House. In response to criticism that an unlimited treaty power could override individual rights or bargain away important national objectives, Federalists responded that treaties could not accomplish anything so drastic without the participation of the House in implementing legislation. Their position undermines internationalist arguments that the Constitution’s original understanding compels the automatic execution of all treaties, and instead indicates that the House was to play an important role in integrating treaties into the domestic lawmaking system.
This understanding of the relationship between treaties and legislation extended from the revolutionary period into the Constitutional Convention and the ratification period. Initially, important framers such as James Wilson and James Madison sought to include a formal role for Congress in treatymaking, but the desire for secrecy and dispatch in foreign affairs led the Convention to exclude the House. Instead, they were able to vest the President with a significant role, which was thought to enhance the participation of the people in foreign affairs. During ratification, however, Anti-Federalists waged a powerful attack upon the treaty power for its lack of a formal House role. Because the treaty power enjoyed federal supremacy and it appeared to be open-ended, Anti-Federalists argued that basic constitutional principles demanded the participation of the legislature, rather than just the President and the Senate, which was seen as either a representative of the states or of aristocratic corruption. Some Federalists, such as Jay, responded by saying that House participation was impracticable because of its large size and the need for secrecy in diplomatic negotiations. This explanation did not prove convincing, and it fell to others, such as Wilson in the Pennsylvania ratifying convention and Madison in the Virginia ratifying convention, to return to the traditional separation of treatymaking and lawmaking between the executive and legislative branches. The arguments made by Virginia Federalists to meet a powerful Anti-Federalist attack, the culmination of almost a year of debate on the Constitution throughout all of the states, can be taken as an important indication of the generally received meaning of the Constitution’s treaty system. As we will see, the conclusion of the ratification process yielded an understanding of the treaty power that kept well within the traditional Anglo-American distinction between treatymaking and lawmaking.[321]
This Section will explore the framing of the treaty power in three parts. Part A will discuss the drafting of the Treaty and Supremacy Clauses, with particular attention paid to the development of these provisions in relation to the broader structural themes and tensions that arose during the Constitutional Convention. Part B will examine the understanding of the Treaty Clause as it developed during the ratification debates in the different states. It will focus on the Federalist-Anti-Federalist debates in the press and in the conventions in three critical states: Pennsylvania, New York, and Virginia. Part C will review selected post-ratification evidence, namely the continuing revolutionary debt problem, the Jay Treaty, and Foster v. Neilson, for the light they shed on the structural decisions made during the ratification of the treaty power.
Most writing about the original understanding of the Treaty Clause has focused on the Constitutional Convention to determine the meaning of the Senate’s advice and consent role in treatymaking.[322] Few, however, have examined the Philadelphia debates in detail concerning treaties and their interaction with the legislative power. In reviewing these records with this different focus in mind, we can discern that the story of treaty supremacy, usually conceived of as a federalism issue, is closely intertwined with the separation of powers. Discussion of these questions during the Philadelphia Convention occurred in three distinct stages. The first was during the month of June, 1787, when the delegates worked on a proposed form of government that would be organized along the principles of popular sovereignty, in which all branches of the government would be selected by a popularly-elected legislature. It was at this point that the Madisonian plan of a national legislature was at its high point. The second occurred during July, when the smaller states succeeded in winning equal representation in the Senate. At this point, the Hamilton-Jay approach, relying as it did on state institutions for treaty enforcement, supplanted Madison’s vision. The third stage occurred in late August and early September, when the Philadelphia delegates turned to the exact wording of the Treaty Clause. Here, the forces of popular sovereignty made their comeback by granting a role to the President in the treatymaking process, by seeking to include the House, and by attempting to reduce the super-majoritarian requirement for the approval of treaties. Although the latter two efforts failed, their backers left the Convention with the idea that even though the House did not have a formal say in approving treaties, it would continue to enjoy an indispensable role in treatymaking because of its authority over domestic legislation.
As one of the obvious national difficulties suffered during the Articles of Confederation, the problem of treaty enforcement became one of the first issue that the framers in Philadelphia planned to address. In the first major speech of the Convention, on May 29, 1787, Edmund Randolph of Virginia (who had been in correspondence with Madison concerning the Articles’ defects)[323] identified the chief problem with the Articles as their inability “to prevent a war nor to support it by their own authority.”[324] Randolph cited examples that showed “that [the United States] could not cause infractions of treaties or of the law of nations, to be punished.”[325] This was particularly dangerous to the Union, he said, because “particular states might by their conduct provoke war without control,”[326] a war that the Continental Congress did not have the resources at its command to fight and win. To address these and other challenges, Randolph proposed a constitution that established a re-constituted national government with new powers, known as the Virginia Plan.
The Virginia Plan addressed the problem of treaties under the Articles of Confederation in two ways. First, it proposed a new national government, one that would have a bicameral legislature, which would exercise all legislative power and would operate on the basis of popular representation. [327] A national executive, chosen by the legislature, would enjoy the executive powers of government.[328] A national judiciary would adjudicate controversies under federal law, but the job of reviewing the constitutionality of proposed legislation would fall to a council of revision.[329] This new national government would exercise powers over foreign affairs, interstate commerce, areas in which the states were incompetent, and taxation. Randolph’s proposal created a government that could act directly upon individuals and that was finally free from its dependence upon the states for supplies and for execution of national laws and treaties. It did not enumerate the national government’s limited powers, but instead resorted to broad grants of authority.
The Virginia Plan’s reform of treaty implementation gave the federal government the means to suppress state laws that were inconsistent with federal treaties. Randolph was obviously influenced by Madison, whose had authored the scheme for a negative over state laws. Modifying Madison’s original design, the Virginia Plan proposed that the negative extend only to state laws that violated, “in the opinion of the National Legislature the articles of union,” rather than in all cases whatsoever.[330] By a unanimous vote, the Convention subsequently approved a motion, without discussion, by Benjamin Franklin to add “or any treaties subsisting under the authority of the Union,” to make clear that the negative would protect both the Constitution and treaties.[331] Madison’s efforts, however, to expand the negative to “improper” state acts --- in other words, giving the federal government the power of review over all state laws, whether unconstitutional or not --- failed in June. But the Committee of the Whole adopted the limited form of the negative, along with other elements of the Virginia Plan, soon thereafter.[332]
Confusion resulted, however, concerning the division of national powers among the branches, as no firm consensus could be reached on whether the foreign affairs powers should be vested solely in the President or in the Senate. Drawing on their British experience, almost all of the delegates who spoke on this question agreed that the powers of war and peace were executive in nature. Yet, mindful of the Crown’s efforts to use its foreign affairs powers to encroach on the legislative, the delegates were unsure whether transferring the Continental Congress’s executive authorities in this area to the President would be wise. Charles Pickney’s comments were typical: he “was for a vigorous Executive but was afraid the executive powers of [the existing] Congress might extend to peace & war &c which would render the Executive a Monarchy, of the worst kind, towit an elective one.”[333] Some, most prominently Wilson, argued in favor of making the foreign affairs power completely legislative in nature by vesting it solely in Congress.[334] Arguing that the model of the English constitution was ill-suited to America, Madison and Wilson succeeded early in June in limiting the President to executing the laws, appointing officers, and exercising powers delegated to it by Congress.[335]
While the Virginia Plan, supported by the delegates of the large states, succeeded in the early going, its approach toward treaties began to unravel when William Patterson introduced his New Jersey Plan on June 15.[336] Supported by the small states, the Plan sought to retain the existing structure of the Articles of Confederation, while only expanding its powers to include the regulation of interstate and international commerce and the right to impose import duties.[337] Congress would still represent the states alone, it would still lack the power to act on individuals, and it would still be dependent, for the most part, on the states for supply and for execution of its laws. A national executive and judiciary were established, but of limited powers.[338] Proposing an alternative to Madison’s negative on state laws, Patterson’s scheme included the progenitor of the Supremacy Clause:
all Acts of the
U. States in Congress made by virtue & in pursuance of the powers hereby
& by the articles of confederation vested in them, and all Treaties made
& ratified under the authority of the U. States shall be the supreme law of
the respective States so far as those Acts or Treaties shall relate to the said
States or their Citizens, and that the Judiciary of the several States shall be
bound thereby in their decisions, any thing in the respective laws of the
Individual States to the contrary notwithstanding; and if any State, or any body of men in any State shall oppose or
prevent ye carrying into effect such acts or treaties, the federal Executive
shall be authorized to call forth ye power of the Confederated States, or so
much thereof as may be necessary to enforce and compel an obedience to such
Acts, or an Observance of such Treaties.[339]
Patterson’s proposals closely tracked the arguments made by Hamilton in Rutgers and Jay in his report to Congress: treaties are the supreme law of the land, part of the higher law of each state, and must be enforced by state judges.
While the New Jersey Plan needed a supremacy clause, the Virginia Plan did not. Madison’s and Randolph’s proposal had created a new, popularly-elected legislature that could override state laws both through the negative and through its own powers, or that could avoid state law entirely by acting on individuals directly. It solved the problem of treaty enforcement by raising the power of implementation to the national level. Under the New Jersey Plan, Congress had no such new powers, and as a result it was still dependent on the state governments to give effect to its treaty commitments. If state enforcement failed, the New Jersey Plan could resort only to physical coercion. As Randolph argued in evaluating the New Jersey Plan on June 16, “[t]here are but two modes, by which the end of a Gen[era]l Gov[ernmen]t can be attained: the 1st is by coercion as proposed by Mr. P[atterson]’s plan. 2. By real legislation as prop[ose]d by the other plan.”[340] Calling physical coercion of other states “impracticable, expensive, cruel to individuals,” Randolph urged that “[w]e must resort therefore to a national Legislation over individuals, for which [the present] Congress are unfit.” Both the Virginia and New Jersey plans essentially amended the separation of powers in each state: Virginia’s added Congress as an effective upper house to each state legislature; New Jersey expanded the powers of each state judiciary to include judicial review of state laws.
For Madison, the New Jersey Plan’s reliance upon state judicial review would provide few guarantees for federal supremacy. In a lengthy critique on June 19, Madison argued that one of the chief defects of Patterson’s proposal was its failure to “prevent those violations of the law of nations and Treaties which if not prevented must involve us in the calamities of foreign wars.”[341] As Madison observed, “[t]he tendency of the States to these violations has been manifested in sundry instances. The files of Cong[res]s contain complaints already, from almost every nation with which treaties have been formed. Hitherto indulgence has been shewn us.”[342] Ominously, Madison predicted that [t]his cannot be the permanent disposition of foreign nations.”[343] The New Jersey plan would do nothing to remedy this state of affairs. “The existing confederacy does not sufficiently provide against this evil. The proposed [Patterson] amendment to it does not supply the omission. It leaves the will of the States as uncontrouled as ever.”[344] State judicial review would not solve this problem, Madison argued, because under the New Jersey Plan Congress continued to represent only the states, not the people. “It could not therefore,” Madison reasoned, “render the acts of Congress in pursuance of their powers even legally paramount to the Acts of the States.”[345] State judges would have no choice but to follow state law, and state legislatures and executives easily could override federal acts.[346] Relying upon the negative and the federal power to legislate, representatives of the larger states believed, would be far preferable to the smaller states’ alternative of coercion and state judicial enforcement.[347]
While the small states put up resistance, initial drafts of the Constitution continued to hew closely to the Virginia Plan. Representation continued to be based on population, but because of concerns about the President’s powers, the Committee on Detail vested the Senate with the sole power over war and peace, treatymaking, and the appointment of ambassadors.[348] Under the Virginia Plan, the Senate served as a council of state, which many state constitutions of the time had established to share executive power with the governor. It was to be elected by the members of the House, rather than appointed by the state legislatures. Original proposals vested foreign affairs power in the Senate because, it was believed, the Senate would have the continuity and wisdom to handle the difficulties of foreign affairs. With smaller numbers and six‑year terms, Senators could handle sensitive diplomatic relations and could pursue policies that advanced the long‑term national interest.[349] At the same time, the majoritarian impulses of Madison and other large state delegates were satisfied by the Senate’s mode of election by the popularly-elected House.
The Great Compromise changed this sanguine view of the Senate. On July 16, the delegates resolved their impasse over representation by agreeing to a bicameral legislature composed of a popularly‑elected House of Representatives and a Senate in which each state legislature would select two Senators.[350] Equal state representation ruined Madison and Wilson’s attempt to organize the new government along the principles of national popular sovereignty.[351] Such a Senate would be large, and therefore it would lack the ability to act with the wisdom, stability, and calculation necessary for executive functions. A Senate representing states in their corporate capacity would be unlikely to exercise the negative on state laws as freely as it should, and it would not hold the devotion to the national interest that justified vesting it with the foreign affairs powers. One day after the Great Compromise, the Convention eliminated Madison’s negative by 7-3. Some delegates criticized the negative as unnecessary, because “sufficient Legislative authority should be given to the Genl. Government” to override inconsistent state laws,[352] others argued that state courts would invalidate any state laws contrary to federal law,[353] while yet others claimed that the negative would prove a logistical nightmare.[354] Defending his proposal, Madison again expressed doubts about the ability of state courts to correct violations of federal law: “Confidence can[not] be put in the State Tribunals as guardians of the National authority and interests. In all States they are more or less dependent on the Legislatures.”[355] Madison’s arguments, however, proved unsuccessful, and the Convention instead adopted unanimously a motion by Luther Martin to adopt the New Jersey Plan’s supremacy clause instead.[356] Once plans for a legislature with broad powers, elected on the basis of population, had been dispensed with, it seems that the momentum for other nationalistic mechanisms, such as the negative, no longer had political support. Yet, whether the judicial process was to be the only method for treaty enforcement remained unclear, as some, like Madison, remained dubious about the effectiveness of judicial review and others, like Gouverneur Morris, thought that treaties ought to be enforced by national laws.
Transformation of the Senate from a popularly‑elected body to a representative of state interests profoundly affected the delegates’ conception of the Senate’s role in foreign affairs. What the proponents of popular sovereignty, such as Madison and Wilson, had lost in the debates over federalism, they would seek to win with the separation of powers.[357] By pressing for a legislative role in the making or implementation of treaties, they could avoid state governments and rely instead upon national legislation for effecting federal treaties. When the provision concerning the Treaty Clause came before the Convention on August 23, supporters of majority rule sought to leaven the Senate’s sole authority. James Madison began the discussion by observing that “the Senate represented the States alone, and that for this as well as other obvious reasons it was proper that the President should be an agent in Treaties.”[358] Professor Rakove’s work already has laid out a strong case suggesting that one of these “other obvious reasons” was the change in the mode of selecting the President by popular election.[359] Once the president’s election by the people is taken into account, Madison’s comment gains significance, because it demonstrates that he sought to counter‑balance the influence of the states in the treaty process by including the republican, representative President.[360]
The Senate’s alteration into a representative of the states troubled other delegates, who supported an effort to expand the treaty process to include the House. Speaking directly after Madison, Gouverneur Morris declared that he was uncertain whether “to refer the making of Treaties to the Senate at all.”[361] Instead, Morris proposed an amendment that “no Treaty shall be binding on the U.S. which is not ratified by a law.”[362] Nathaniel Gorham criticized Morris, because he believed the proposal would place the power to appoint ambassadors and the power to ratify treaties in different hands.[363] Wilson, however, argued in favor of Morris’s amendment because it did nothing more than recognize the power that the legislature would have in regard to treaties. Analogizing to the British constitution, Wilson observed that the people had a voice “in the most important Treaties,” despite the royal prerogative, because “the King of Great Britain being obliged to resort to Parliament for the execution of them, is under the same fetters as the amendment of Mr. Morris” --- in other words, the Parliament had to approve implementing legislation for a treaty to take effect in domestic British law.[364] Pursuing Gorham’s point, William Johnson responded that “the example of the King of Great Britain was not parallel. Full & compleat power was vested in him.”[365] Legislative participation was not needed to ratify the treaty (and thus “make” the agreement), but only to fulfill its obligations. “If the Parliament should fail to provide the necessary means of execution,” Johnson said, “the Treaty would be violated.”[366] Both Wilson and Johnson agreed that the British Parliament had the authority to block a treaty, they just disagreed whether parliamentary action resulted in no agreement being made, or an agreement being made and then broken. Wilson thought that the legislature’s implicit role showed that different bodies could negotiate and ratify; Johnson believed that the legislature’s role showed the exact opposite because the legislature’s role was not formal. At the very least, both Wilson’s and Johnson’s comments suggest that they thought that Congress already possessed this authority as inherent in its legislative powers.
Although some of the most influential delegates had arrived in Philadelphia with the mission of diminishing the power of the states, more than just hostility drove this late effort to modify the Treaty Clause. First, there was concern that state interests might not correspond to the best interests of the nation, and that instead states might use their power under the Treaty Clause to capture benefits at the expense of the people or of a minority of states. Wilson, for example, warned that “[u]nder the clause, without the [Morris] amendment, the Senate alone can make a Treaty, requiring all the Rice of S. Carolina to be sent to some particular port.”[367] In an earlier debate on August 15 concerning the House’s sole authority to originate money bills, George Mason of Virginia had foreshadowed Wilson’s argument when he exclaimed that he “was extremely earnest to take this power from the Senate, who . . . could already sell the whole Country by means of Treaties.”[368] These statements expressed a fear that treaties might be used by the states to enact protectionist or favorable economic legislation that could not survive the normal legislative process. As the Jay-Gardoqui controversy had shown, this was not just an idle fear.
Second, there was a desire behind the Morris amendment to make it more difficult for the nation to enter into treaties. Although one would not think this to be the natural result of a change from senatorial to congressional approval of international agreements, House participation would place another check on the Senate, and on treaties in general. In response to Gorham and Johnson’s arguments, for example, Morris admitted that problems might exist when different bodies negotiate and ratify a treaty. American ambassadors would be unsure of their instructions, with the result that foreign ambassadors would most likely have to come to the United States to negotiate important treaties.[369] Nonetheless, he characterized a difficult ratification process as a virtue. “In general,” Morris continued, “he was not solicitous to multiply and facilitate Treaties.”[370] Rather, the “more difficulty in making treaties, the more value will be set on them.”[371] Morris’s comments expressed that American ambivalence toward international entanglements, which also characterized the Federalist Papers, George Washington’s farewell address, and early American policy toward the European wars between Great Britain and France.
Morris’s proposal was defeated by a vote of eight states to one, leaving the treaty power solely in the hands of the state‑dominated Senate.[372] The forces of majority rule were not so easily defeated, however, as they succeeded in postponing final consideration of the Treaty Clause. As they adjourned for the day, Madison “hinted for consideration,” as he put it in his notes, whether the President and Senate ought to share power over peace and alliance treaties, and whether to require a majority vote of the whole legislature for other treaties.[373] From there the Treaty Clause was sent to the Committee on Postponed Parts, which was formed to resolve questions upon which substantial disagreement had emerged. The Committee reported the version that forms the basis for today’s clause: the President was given power to make treaties, with the advice and consent of two-thirds of the Senate.[374]
While the Committee left no record of its deliberations, two members of the South Carolina delegation later discussed the crafting of the clause during their state’s ratification process. Pierce Butler, a Committee member, stated that the Committee believed that none of the branches ---- Senate, President, and the House ---- alone could be trusted to exercise the power properly. The Senate’s sole control “was objected to as inimical to the genius of a republic, by destroying the necessary balance they were anxious to preserve.”[375] Although some wanted to vest the power in the President, others opposed this motion on the ground that it would allow him to involve the country in war too easily. The participation of the House was suggested, but the idea was doomed by “an insurmountable objection,” in Butler’s words, “that negotiations always required the greatest secrecy, which could not be expected in a large body.”[376] Confirming Butler’s account, a second delegate, General Charles Cotesworth Pickney, observed that agreement existed that the House should not have a role in making treaties because of “the secrecy and dispatch which are so frequently necessary in negotiations.”[377] Pickney then explained why the Committee had included the President in the treatymaking provision. Some had emphasized the representative feature of the Presidency that Madison had raised on August 23: the President “was to be responsible for his conduct, and therefore would not dare to make a treaty repugnant to the interest of his country; and from his situation he was more interested in making a good treaty than any other man in the United States.”[378] Others, however, expressed concern that a President might be bribed by a foreign power or swayed by sectional interests. Therefore, Pickney concluded, the Committee had vested the power in the President and Senate both.[379]
As Professor Rakove has observed, these two speeches “fill a major gap in the records of the proceedings at Philadelphia.”[380] They indicate that the Committee altered the Treaty Clause specifically so as to implement two of the themes raised by the earlier debates in the Convention. First, the President was inserted into the process not only to check the Senate, but also represent the nation as a whole. The President’s republican nature contrasted sharply with that of the Senate, which represented states and sectional interests. Second, the Committee, like the majority of the Convention, remained hostile to participation by the House in the making of international agreements because they believed it structurally unsuited to the delicacies of international negotiation. The elevation of the President as the representative of the people in foreign affairs also may have led critics to focus on the House’s functional inadequacies, rather than its democratic nature.
When the Convention took up the modified Treaty Clause on September 7, 1787, the supporters of majority rule made one more attempt to reduce the power of the states. Wilson immediately moved that the Constitution require that treaties receive the approval of both House and Senate, in order to render the procedures for statutes and treaties congruent. “As treaties are to have the operation of laws,” Wilson argued, “they ought to have the sanction of laws also.”[381] In other words, if treaties were to enjoy the effect of laws within the United States, they ought to undergo the same lawmaking process. Anticipating the objection that the “circumstance of secrecy is the business of treaties,” Wilson argued that this concern was outweighed by “the necessity” of participation by the House. Roger Sherman countered that “the necessity of secrecy” precluded allocation of the power to the whole legislature. Wilson’s amendment lost 10‑1, and the Convention approved the President and the Senate’s shared control over treatymaking.[382] The delegates, however, did not consider whether Wilson’s original point was correct --- that treaties were to have the force of legislation --- and instead focused solely on the House’s functional ability to play a role in diplomacy. One might see the vote simply as a decision that the House was not to be involved in treatymaking because of its structural inadequacies, rather than a resolution of whether those treaties could supplant domestic lawmaking, in which the House was to play the dominant role.
With participation by the House decisively rejected, an illuminating debate occurred on the two‑thirds vote requirement. Wilson attacked the supermajority provision because it “puts it in the power of a minority to control the will of a majority.”[383] Rufus King emphasized that the two‑thirds requirement was unnecessary because “the Executive was here joined in the business,” which constituted a “check which did not exist in [the Continental] Congress.”[384] The Convention then unanimously adopted a Madison amendment to exclude peace treaties from the two‑thirds requirement, “allowing these to be made with less difficulty than other treaties.”[385] Madison further sought to alter the Constitution’s treatment of peace treaties by allowing them to be made by two‑thirds of the Senate without presidential involvement. “The President,” Madison worried, “would necessarily derive so much power and importance from a state of war he might be tempted, if authorized, to impede a treaty of peace.”[386] His motion was seconded by Pierce Butler, who thought the amendment a “necessary security against ambitious & corrupt Presidents.”[387] During a debate that extended over the course of September 7 and 8, the Convention rejected Madison’s modifications to the Treaty Clause. On September 7, the delegates defeated by 8‑3 Madison’s amendment removing the President from the process for peace treaties. The next day, the Convention reversed Madison’s first motion on peace treaties, which had been accepted unanimously, and decided to subject such agreements to the same two‑thirds vote requirement that governed all treaties. Again the vote was 8‑3. Throughout the deliberations, the delegates brushed aside the repeated efforts by James Wilson to include the House in the treaty process.[388]
Madison’s efforts to alter the procedures for peace treaties were ultimately frustrated because of many of the concerns that had been expressed in late August. Gouverneur Morris opposed the exclusion of the executive because of its position as the representative of the people. “[N]o peace ought to be made without the concurrence of the President, who was the general Guardian of the National interests,” said Morris.[389] Others worried that sectional interests in the Senate would swamp the national interest if voting procedures were eased. “In Treaties of peace the dearest interests will be at stake, as the fisheries, territory &c,” Elbridge Gerry claimed.[390] Gerry believed that a simple majority requirement would allow a group of smaller states to pursue their sectional interests against the wishes of a majority of the people. As he said on September 8, he was concerned about “the danger of 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.”[391] Hugh Williamson also argued that the two‑thirds requirement would safeguard small states as well as large states, because the small states could still prevent a treaty inimical to their interests.
Internationalists place great store in the events of the Constitutional Convention. They argue that the elimination of the Virginia Plan’s veto over state laws, and the adoption of the New Jersey Plan’s Supremacy Clause, represent a clear decision to make treaties self-executing in American courts and to exclude Congress from treatymaking.[392] “The rejection of the Virginia plan,” Professor Vazquez argues, “thus reflects a decision not to make the legislature the primary interpreter and enforcer of treaties against the states, and the adoption of the Supremacy Clause represents a decision to vest this power and duty in the courts.”[393] Internationalists, however, focus their gaze too narrowly upon the choice of the Supremacy Clause, without reviewing subsequent events during the Constitutional Convention. To be sure, the Convention did select the Supremacy Clause approach over Madison’s more aggressive effort to place the federal government in the position of a state legislature of last resort. Nonetheless, this article’s more complete examination of the Constitution’s drafting suggests that the actions of the Constitutional Convention did not represent a repudiation of Madison’s vision for treaty enforcement, nor did it amount to an outright dismissal of any role for the House. Evidence from the Constitutional Convention supports more complicated conclusions that undermine the internationalists’ picture of the convention as a binary choice between congressional or judicial enforcement of treaties.
First, the history reviewed here indicates that the Convention did not reject a treatymaking role for the House because it sought to choose the courts over Congress as the preferred treaty enforcer. Certainly, the delegates agreed to prevent the House from participating formally in the making of international agreements. They rejected Madison’s and Wilson’s motions to include the House, however, not because they believed that they Congress could not perform the job of treaty enforcement, but because they concluded that the House was structurally unsuited for the task of conducting diplomacy. Members of the Convention did not explain their adoption of the Supremacy Clause as a choice in favor of courts over Congress in the enforcement of treaties. In fact, several delegates, including several of the Convention’s leading members, believed that if treaties were to have direct effect in domestic law, then they should receive the approval of Congress. Events after the adoption of the Supremacy Clause seem to show that the Convention was not of a single mind as to whether the British rule --- executive treatymaking followed by legislative implementation --- would continue to prevail under the new Constitution.
Second, delegates to the Constitutional Convention continued to express concerns about the non-democratic nature of the treaty power. The Great Compromise’s transformation of the Senate into a representative of the states ran counter to the original design of the body as a national council. Once the Convention had altered the Senate’s method of selection, delegates sought repeatedly to inject more democratic elements into the treatymaking process. Several framers held concerns that a simple majority of the states might seek to oppress a minority of states for sectional or economic advantage. Without a two-thirds requirement, a majority of states could impose treaty provisions against the wishes of a popular majority. Later in the Convention, the delegates vested the President with the dominant role in treatymaking, again in order to provide majoritarian safeguards on the treaty power. Unsuccessful efforts to include the House would have furthered this goal, were it not for the belief that the House could not participate effectively in diplomatic relations. A House role in the implementation of treaties, but not in their formal negotiation, would have satisfied both structural concerns among the delegates.
Third, and most important, internationalists err in viewing the adoption of the Supremacy Clause as a defeat for the Madisonian vision of the relationship between treaties and domestic lawmaking. To be sure, the Convention decisively rejected the negative over state laws, perhaps an inevitable result once the small states had won equal representation in the Senate. The delegates, however, adopted the other major elements of Madison’s plan: a popularly-elected branch of the national legislature, which had the power to pass laws that applied directly to individuals, and whose laws could be enforced by independent organs of the national government. Further, the proposed Constitution vested Congress with powers, such as those over interstate and international commerce, that would require its cooperation for future treaties. The Convention had not chosen between the two possible methods, identified by Hamilton and Jay, on the one hand, and Madison, on the other, for enforcing treaties. While the Convention had adopted the Supremacy Clause, it also had created the national mechanisms for enforcement envisioned by Madison. It had not, however, fully confronted the tension between treaties, the Supremacy Clause, and the power to legislate.
It was not until the ratification process that state leaders would grapple with the problems posed by treaties that intruded into Congress’s powers. This, perhaps, points out the deepest problem with the internationalist use of history. Internationalists place such reliance upon the choice of the Supremacy Clause over the veto of the negative on state laws that they overlook the importance of the ratification process. In the standard internationalist accounts, the ratification is discussed in a secondary manner so as only to buttress conclusions drawn from examination of the Constitutional Convention.[394] As argued before, however, the Constitutional Convention had no official authority to make the decisions that gave the Constitution its political and constitutional legitimacy. Rather, it was the state ratification conventions that made the crucial decisions whether to adopt the Constitution and give it force. While originalists should not, by any means, ignore the Constitutional Convention, they should give primary weight to the ratification and secondary attention to Philadelphia. It is, therefore, the understandings of the state ratifiers, not those of the Philadelphia drafters, which should receive our greatest attention. It is to those understandings that we now turn.
Curiously, the two leading histories of the Treaty Clause do not examine the state ratification debates in any detail. Professor Bestor virtually ignores the ratification debates, while Professor Rakove focuses on the Federalist Papers and a few statements to investigate the question of the scope of the Senate’s advice and consent power. Perhaps this is understandable because the Constitutional Convention presents a single assembly at a single point in time, in which we can trace the relationships between different discussions and important votes. The ratification process was far more unruly. After the Constitutional Convention, there was no physically unified place for debate to occur; events moved to the thirteen ratifying conventions, which were disconnected by both geography and time. Lacking the almost instantaneous communications that we enjoy today, the founding generation relied upon open-air and closed-door meetings, and letters and newspapers carried by horse and sea, for political discussion and information.
The ratification debates, however, contain revealing evidence --- evidence perhaps more relevant and yet unnoticed --- concerning the role of the House in the process of making international agreements. Critics of the Constitution complained that the Treaty Clause improperly vested power in the Senate, rather than the House, and that it allowed the President and Senate to conspire against the people’s wishes. When initial responses that the House was ill-suited for diplomacy did not seem to gain traction, leading Federalists fell back upon Madison’s vision, which included an important role for the House in controlling treaties. In maintaining the Anglo-American tradition of separating the power to make treaties from the power to legislate, they placed in the hands of the political branches the authority to determine treaty implementation. In defending the Constitution, these Federalists downplayed the Supremacy Clause and relied upon a national government that would enforce its own treaties through legislation. They would leave open for future Presidents and Congresses the decision whether to choose between these two approaches to treaty enforcement. This section will address the ratification process in four parts: part 1 discusses Anti-Federalist criticisms of the treaty power; part 2 examines the Pennsylvania ratifying convention and Federalist reliance upon the legislative power to check the treaty power; part 3 turns to the debates in the New York press, which witnessed a detailed debate over the relationship between treaties and legislation; and part 4 reviews the debates in the crucial Virginia convention, where Madison and other Federalists defended the treaty power on the ground that treaties which regulated areas within Congress’s enumerated power would require implementing legislation.
Possibly unlimited in scope and shared by the President and Senate, the Treaty Clause generated significant controversy during the ratification process. Anti-Federalists cited the Clause as proof that the Constitution violated the separation of powers and threatened individual liberties. They raised three main challenges to the treaty power. First, the treaty power became the target of attacks upon the Senate as an aristocratic body, vested with sweeping powers, that would corrupt the government. Anti‑Federalists argued that the Senate, with the collusion of the President, would subvert the Treaty Clause to its own ends, at the expense of the public good. As George Mason’s widely published Objections to the Constitution argued:
with their other
great Powers (vizt. Their Power in the Appointment of Ambassadors & all
public Officers, in making Treaties, & in trying all Impeachments) their
Influence upon & Connection with the supreme Executive from these Causes,
their Duration of Office, and their being a constant existing Body almost
continually sitting, join’d with their being on compleat Branch of the
Legislature, will destroy an Balance in the Government, and enable them to
accomplish what Usurpations they please upon the Rights & Libertys of the
People.[395]
At the root of this fear was the concern that the Constitution vested the Senate with legislative, executive, and judicial authorities. The Senate exercised legislative powers as part of Congress, executive powers through treaties and appointments, and judicial powers impeachment.[396] To any student of Montesquieu, this blending of authority in the same body was a clear violation of the separation of powers. And as Montesquieu had warned, any combination of legislative and executive power would lead to tyranny.
In regard to treaties specifically, Anti-Federalists argued that the treaty power was either wholly executive or wholly legislative, and hence that the joint allocation of the power to both the President and Senate violated the separation of powers. The most well-regarded Anti-Federalists argued that the treaty power, because of the Supremacy Clause, had become a power to legislate, and therefore should not be vested in the Senate and President, which formed an executive branch of government. Again, Mason’s Objections were illustrative. “By declaring all Treaties supreme Laws of the Land, the Executive & the Senate have, in many Cases, an exclusive Power of Legislation.”[397] Not only had Montesquieu warned against the dangers of combining the executive and legislative powers, but the framers also believed that the British Parliament had won the right to defend the liberties of the British people by keeping the power to legislate distinct from the Crown’s power to enter into treaties.[398] An effort to subsume the legislative power into the treaty power would have recalled, particularly in Anti-Federalist minds, the corruption of Parliament by the Crown.
Anti-Federalists complemented this criticism with a second attack on the treaty power for its open-ended nature. Foreshadowing the debate on the limits on the treaty power that continues to this day,[399] some Anti-Federalists charged that the legislative aspect of the treaty power was potentially unbounded, because it was not subject to the limits of Article I. Wrote the influential Federal Farmer on October 12, 1787:
By the
[Supremacy Clause], treaties also made under the authority of the United
States, shall be the supreme law: It is
not said that these treaties shall be made in pursuance of the constitution ---
nor are there any constitutional bounds set to those who shall make them: The president and two thirds of the senate
will be empowered to make treaties indefinitely, and when these treaties shall
be made, they will also abolish all laws and state constitutions incompatible
with them. This power in the president
and senate is absolute, and the judges will be bound to allow full force to
whatever rule, article or thing the president and senate shall establish by
treaty, whether it be practicable to set any bounds to those who make treaties,
I am not able to say: If not, it proves
that this power ought to be more safely lodged.[400]
By giving treaties supremacy effect, the Anti-Federalists argued, the Constitution had vested in only the President and the Senate the power to enact laws. As the Senate was an aristocratic body, it could corrupt the President --- already a monarchical figure --- into cooperating in the oppression of the people. As one of the most thoughtful Anti-Federalist writers, Brutus,[401] observed: “The power to make treaties, is vested in the president, by and with the advice and consent of two thirds of the senate. I do not find any limitation, or restriction, to the exercise of this power. The most important article in any constitution may therefore be repealed, even without a legislative act. Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought.”[402] Without a Bill of Rights, open-ended power grants like the Treaty Clause would allow the new national government to violate individual freedoms.
The third element of the Anti-Federalist attack was that the Constitution failed to take the necessary corrective measures to contain the treaty power within proper limits. In addition to a Bill of Rights, Anti-Federalists wanted to maintain the Anglo-American distinction between the power to make treaties and the power to legislate, so that at least the popularly-elected House could block any tyrannical uses of the treaty power. The Constitution’s unfortunate treatment of the power, Mason observed, “might have been avoided, by proper Distinctions with Respect to Treaties, and requiring the Assent of the House of Representatives, where it could be done with Safety.”[403] Significantly, Mason’s argument asserts that the Constitution is remarkable, and therefore dangerous, precisely because it departs from the usual separation between the power to legislate and the power to make treaties. He responds by invoking the traditional approach to treatymaking: treaties were to kept distinct from laws; any treaties that had domestic effect required implementation by the popularly-elected legislature. Without such checks, Anti-Federalists feared, the President and Senate could use the treaty power to threaten individual liberties, which were not explicitly enumerated (and therefore not protected) by the Constitution. Widely circulated in October and November of 1787, well before the major ratifying conventions were to meet, Mason’s Objections and the Letters From the Federal Farmer expressed the views of other leading Anti-Federalists on the treaty question.[404] Indeed, Mason’s attack on the treaty power seems to have been repeated in each of the major states for which we have records, primarily in the press but also in the ratifying conventions themselves.
These Anti-Federalist arguments made an important appearance in the first major battleground of the ratification struggle, Pennsylvania. There are several reasons to pay close attention to the Pennsylvania ratifying convention. Due to strong Anti-Federalist opposition, Pennsylvania was the first state in which the Constitution was seriously debated.[405] Unlike Delaware’s unanimous ratification, it was the first large and strategically important state to ratify, which it did on December 12, by a vote of 46-23.[406] Pennsylvania was not just the “keystone state” in terms of its population, central location, and economic clout; it was also one of the symbolic centers of American politics.[407] Philadelphia had been home to the Continental Congress; it was the scene of the signing of the Declaration of Independence; and it was the host of the Constitutional Convention. As a result, both Federalists and Anti-Federalists realized that their actions took on significance not just within the state, but nationally as well. As one historian has written, “the Pennsylvania debates took on a special significance, delineating, as it were, the terms of discourse, the grammar, syntax, and vocabulary of ratification.”[408]
In Pennsylvania, Anti-Federalists linked the unbounded nature of the Treaty Clause to their broader criticism of the Constitution for its lack of a Bill of Rights. If there were no Bill of Rights, and the Constitution contained potentially unlimited legislative powers --- as evidenced by the Treaty Clause --- then the federal government would oppress individual liberties. In the first public defense of the Constitution by one of the Philadelphia Convention’s delegates, Wilson gave a speech in the Pennsylvania State House Yard on October 6, 1787, that sought to quell these concerns. Wilson’s main point was that the Constitution did not need a bill of rights because the powers of the federal government were limited and enumerated; a bill of rights would imply that the federal government would have had general powers to affect individual rights.[409] Wilson sought to show that the structure of the government made a bill of rights unnecessary. At first, Wilson acknowledged that the Senate violated Montesquieu’s famous dictate that executive and legislative powers had to be distinct and exercised by different governmental organs. “This body branches into two characters, the one legislative, and the other executive,” Wilson admitted. However, Wilson continued, this did not mean that the Senate exercised unlimited authority. “In its legislative character it can effect no purpose, without the cooperation of the house of representatives, and in its executive character, it can accomplish no object, without the concurrence of the president.”[410] Thus, Wilson suggested that the treaty-making power was purely an executive function, one that it shared with the President. Any legislative power that could affect individual liberties would have to be shared with the House.
Pennsylvania Anti-Federalists were not convinced by Wilson’s vague allusions to the balanced nature of the legislative and executive powers. Responding directly to Wilson, an “Old Whig” argued that “that the president and two-thirds of the senate have power to make laws in the form of treaties, independent of the legislature itself.”[411] For example, the President and Senate could enter into a treaty “upon terms which would be inconsistent with the liberties of the people and destructive of the very being of a Republic,” yet the treaty and supremacy clauses “will give such a treaty the validity of a law.”[412] In tyrannies, “where all power legislative and executive is vested in one man or one body of men,” Old Whig commented, “treaties are made by the same authority which makes the laws.”[413] A Republic, however, is “where the legislature is [distinct] from the executive,” and “the approbation of the legislature ought to be had, before a treaty should have the force of a law.”[414] According to Old Whig, things were not even this bad in Great Britain. “Even in England the parliament is constantly applied to for their sanction to every treaty which tends to introduce an innovation or the slightest alteration in the laws in being, the law there is not altered by the treaty itself; but by an act of parliament which confirms the treaty, and alters the law so as to accommodate it to the treaty.”[415] In attacking the Treaty and Supremacy Clauses, the Pennsylvania Anti-Federalists resorted to the claim that the new Constitution was not enough like the British constitution.
Once the Pennsylvania ratifying convention itself began in late November, Anti-Federalists reiterated these objections to the Treaty Clause. On December 3, for example, Anti-Federalist leader William Findley argued that “Notwithstanding the legislative power in Article I, section 1, the power of treaties is given to the President and Senate. This is [a] branch of the legislative power.”[416] In England, by contrast, the king “makes [treaties] ministerally, and the legislature confirms them.”[417] Federalist Timothy Pickering defended the Constitution by arguing that treaties, under the Constitution, did not have the force of law. “According to common acceptation of words, treaties are not part of the legislative power,” Pickering responded, citing the powers of the British King.[418] Picking up on Findley’s distinction between ministerial and legislative actions, James Wilson argued that “The President and [Senate] in this Constitution makes the treaty ministerially,” and that “supreme laws cannot be made ministerially, but legislatively.”[419] Anti-Federalists seemed to agree. “In Great Britain,” John Smilie said, “a law is frequently necessary for the execution of a treaty.”[420] Observed Robert Whitehill: “When a treaty is made in Great Britain it binds not the people, if unreasonable. Treaties are binding by acts of Parliament and the consent of the people.”[421] Both Anti-Federalists and Federalists agreed that under the previous system of government, the power to make treaties and the power to legislate were kept distinct, and that treaties could have no domestic effect without confirming legislation. Where they disagreed was whether the Constitution incorporated this principle. Fearful of unlimited federal powers, Anti-Federalists argued that the Constitution did not. Searching for a democratic check on the treaty power, Federalists argued that it did.
From the sketchy records that we have, it appears that the Anti-Federalists remained unconvinced. On December 7, Anti-Federalists again attacked the combined effect of the Treaty and Supremacy Clauses. “A treaty is not constitutionally guarded,” Findley complained. “It may be superior to the legislature itself. The House of Representatives have nothing to do with treaties.”[422] On December 11, Wilson began an elaborate defense of the treaty power. First, Wilson argued that the President would serve as a popular check on treatymaking. “[H]ere, [the Senate] are also under a check, by a constituent part of the government, and nearly the immediate representative of the people,” Wilson said. “I mean the President of the United States. They can make no treaty without his concurrence.”[423] Wilson’s arguments did not seem to convince, as the Anti-Federalist critique was that the Senate and President would collude to use their treaty power to override individual liberty. Wilson’s second argument suggested that treaties were not really laws at all because of their status as international agreements. “But though treaties are to have the force of laws,” Wilson at first suggested, “they are in some important respects very different from other acts of legislation. In making laws, our own consent alone is necessary. In forming treaties, the concurrence of another power becomes necessary.”[424] Treaties, therefore, were not really laws on their own; instead, they “are truly contracts, or compacts, between the different states, nations, or princes, who find it convenient or necessary to enter into them.”[425] Although Anti-Federalists wanted the House of Representatives to have a formal role in treatymaking as in lawmaking, Wilson responded that the large size of the House made a direct, formal role impracticable. “Sometimes secrecy may be necessary, and therefore it becomes an argument against committing the knowledge of these transactions to too many persons.”[426]
Wilson’s third, and most directly responsive argument, was that even without a formal role, the House would still enjoy the same power over treaties as that of Parliament. Even though the British constitution had recognized that all formal power over treatymaking belonged to the Crown, constitutional custom and political reality had given the Commons the final say over treaties in their domestic effects. “[T]hough the House of Representatives possess no active part in making treaties,” Wilson remarked, “yet their legislative authority will be found to have strong restraining influence upon both President and Senate.”[427] Analogizing to the British system, Wilson admitted that no treaty could have direct legislative effect without the participation of Congress. “In England,” Wilson continued, “if the king and his ministers find themselves, during the negotiation, to be embarrassed, because an existing law is not repealed, or a new law is not enacted, they give notice to the legislature of their situation and inform them that it will be necessary, before the treaty can operate, that some law be repealed or some be made. And will not the same thing take place here?”[428] American practice would mirror British practice, Wilson predicted.[429] Safety from tyranny was not to be found in giving the House a formal role in treaties, but in understanding that Congress’s control over legislation and the purse would give it a working check on the exercise of the treaty power. Despite the Supremacy Clause, Wilson suggested that treaties would need implementing legislation, just as they did in Great Britain, before they could take direct effect at home.
What is important for interpretive purposes is what Wilson left unsaid. Wilson did not respond by admitting that the Supremacy Clause did have the effect that Anti-Federalists claimed, but that it was necessary to control state encroachments on federal treaties. Wilson even could have portrayed the Supremacy Clause as a compromise in favor of states’ rights. Instead, Wilson responded by emphasizing that the treaty power was subject to strong controls by the popularly-elected branches of the government. To deflect Anti-Federalist criticisms of the effect of the Treaty Clause and the Supremacy Clause, Wilson offered a narrow reading of the Supremacy Clause that did nothing to change the customary separation of powers principles that governed treaties. While treaty obligations might have the operation of laws, they would not be entitled to that treatment until they had received legislative confirmation at the national level. Wilson’s speech should receive significant interpretive weight, because it came after long, careful discussions of the treaty power, in a setting of great political and symbolic importance, and it offered a prediction of the manner in which the treaty power, the power to legislate, and federal supremacy would interact that built upon a common understanding shared by Federalists and Anti-Federalists alike. It was the public explanation of the Constitution’s meaning, before the first critical state ratification convention, that “sold” the Constitution to its ratifiers.
After Pennsylvania had ratified, the next two significant “vetogates” for the Constitution to overcome were New York and Virginia. New York witnessed the more vigorous debate in the press, while Virginia was the state in which the Anti-Federalists made their strongest political effort to forestall ratification. Ratification in New York was almost assured once word had arrived that Virginia had approved the Constitution on June 25, 1788, and thus New York’s convention perhaps lacked the sharpness of argument and discussion that characterized the Pennsylvania and New York conventions.[430] It is worthwhile, however, to examine the debates in New York that occurred in the press, as they too reflect the understandings and arguments of the Anti-Federalists and Federalists concerning the Treaty Power.
Anti-Federalist criticisms of the Treaty and Supremacy Clauses received a full airing in the New York newspapers. Soon after Pennsylvania’s ratification, for example, the state’s Anti-Federalist minority published a dissent that circulated widely in New York.[431] The dissenters repeated their criticisms that the Senate’s participation in treaties violated the separation of powers, that the open-ended nature of the treaty power threatened individual liberties, and that Congress ought to enjoy Parliament’s right to confirm treaties through legislation. “It is the unvaried usage of all free states,” the dissenters declared, referring specifically to Parliament’s implementation of a recent commercial treaty with France, “whenever treaties interfere with the positive laws of the land, to make the intervention of the legislature necessary to give them operation.”[432] In effect, the minority argued that the Constitution ought to declare formally what Wilson promised would occur informally. George Mason’s Objections to the Constitutions and the Federal Farmer’s Letters made similar arguments in the New York press in October and November, 1787. Prominent New York Anti-Federalist writers also took up the charge. “Complete acts of legislation, which are to become the supreme law of the land, ought to be the united act of all the branches of government,” wrote “Cato” in December, 1787.[433] “[B]ut there is one of the most important duties may be managed by the senate and executive alone, and to have all the force of the law paramount without the aid or interference of the house of representatives; that is the power of making treaties.”[434] The able Anti-Federalist writer Brutus also criticized the treaty power as unlimited and unrestrained by the legislature.[435]
Responses to these arguments came primarily through The Federalist. The first paper devoted to the treaty power, Federalist No. 64, appeared on March 5.[436] One of the few papers written by John Jay, it contained a very different discussion of the treaty power than that offered by Wilson in Pennsylvania or that to be offered by Madison in Virginia. Jay began by praising the Constitution for vesting the treaty power in the President and Senate, which he believed would be composed of men of the highest character.[437] While the President could manage foreign negotiations with “perfect secrecy and immediate dispatch,”[438] the Senate would bring “talents, information, integrity, and deliberate investigation.”[439] A large body like the House, Jay argued, was incapable of participating in diplomacy.[440] There was no reason why the treaty power had to be vested in the same body that made laws. “All constitutional acts of power,” Jay, responded, “whether in the executive or in the judicial departments, have as much legal validity and obligation as if they proceeded from the Legislature.”[441] It is up to the people, Jay reasoned, where to vest the different functions of government. “It surely does not follow that because they have given the power of making laws to the Legislature,” Jay wrote, “that therefore they should likewise give them power to do every other act of sovereignty by which the citizens are to be bound and affected.”[442] Because the Constitution represented the people’s choices concerning the structure of their government, they could allocate lawmaking authority as they chose.
In Jay’s mind, the Constitution’s grant of federal supremacy to treaties represented no innovation at all. According to Jay, this had already been the law of the land under the Articles of Confederation. Treaties were binding on the nation, state laws to the contrary notwithstanding, and the only power that could override treaties lay with the nations themselves. “[T]reaties are made not by only one of the contracting parties, but by both,” Jay maintained. “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.”[443] Under both the Constitution and the Articles of Confederation, neither state laws, nor even unilateral action by other branches of government, could modify or break a treaty obligation. “The proposed Constitution therefore has not in the least extended the obligation of treaties,” Jay concluded. “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.”[444] Jay had lost no opportunity to press the expansive treaty theories that he had proposed to the Continental Congress in 1786.[445] Although consistent with his views as the Continental Congress’s Secretary for Foreign Affairs, Jay’s arguments on this score contradicted political reality and the views of most other Federalists. While Wilson, for example, had maintained that the House was too large a body to include in the making of treaties, he also had acknowledged that the House was to exercise a significant check by retaining the power to legislate, and thereby control the implementation of treaties in domestic law. Jay’s views, and certainly his aristocratic tone, seem out of place with the more republican notes sounded by the Federalist papers of Madison and Hamilton.
Perhaps sensing that Jay’s extreme views had gone too far, the other co-authors of the Federalist offered a more nuanced approach to treaties. Writing about a week later, Hamilton in Federalist No. 69 sought to demonstrate that comparisons between the British King and the American President were unfounded.[446] In contrast to the President’s joint role with the Senate in making treaties, Hamilton argued, the “King of Great-Britain is the sole and absolute representative of the nation in all foreign transactions.”[447] Hamilton acknowledged Anti-Federalist arguments that Parliament had a significant role in implementing treaties, but he wanted to make clear that Parliament’s participation was informal. “It has been insinuated,” Hamilton observed, “that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to revision, and stand in need of the ratification of Parliament.”[448] Citing Blackstone, Hamilton concluded that Parliament simply did not have a role in the making of treaties. Nonetheless, Hamilton admitted that Parliament did participate by controlling domestic implementation. “The Parliament, it is true,” Hamilton wrote, “is sometimes seen employing itself in altering the existing laws to conform them to the speculations in a new treaty.”[449] On this point, however, Hamilton did not press home Wilson’s argument that the legislature’s role would constitute yet another check on the treaty power, but instead suggested that Parliament’s role was simply in seeing treaty obligations through. Parliament’s role here, Hamilton argued, arose not from any role in foreign policy, but “from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws to the changes made in them by the operation of the treaty.”[450] A treaty creates a “new state of things,” according to Hamilton, to which Parliament must adapt “new provisions and precautions” in order to “keep the machine from running into disorder.”[451]
Hamilton’s Federalist No. 69 is subject to two different interpretations. First, we might read Hamilton as echoing, however faintly, Jay’s position, which he had shared in Rutgers v. Waddington.[452] If Hamilton is suggesting that the legislature has a duty to implement treaties, the treaty power has a direct legislative effect that may even be superior to statutes. Yet, Hamilton never claimed in Federalist No. 69 that the treaty power, shared by President and Senate, was in any way superior to that of the British King --- such a claim would have undermined his broader strategy of showing that the President’s powers were in fact much weaker. Hamilton’s primary goal was to understate the powers of the President and inflate those of the British Crown, so as to deflect Anti-Federalist arguments that the Presidency possessed monarchical attributes.[453] Minimizing Parliament’s formal role in treatymaking achieved this goal. Accepting Anti-Federalist arguments that the Constitution’s Treaty Clause had a greater sweep than the British would have defeated his goal.
Alternatively, we can read Hamilton as consistent with Wilson and others who emphasized the checks created by legislative power on treaties. Hamilton did not deny that Parliament’s control over the power to legislate gave it a role in treaty implementation, nor did he argue that in the United States a different relationship would take hold between Congress and treaties. A month earlier, Madison had suggested in Federalist No. 53 that the House would enjoy this right.[454] In defending the two-year term for members of the House, Madison had argued that such terms were necessary so that members could become knowledgeable about foreign affairs. “[A] federal representative,” Madison maintained, needed to understand American treaties and foreign nations’ commercial policies so as to regulate “our own commerce.”[455] He ought to “not be altogether ignorant of the law of nations,” because that too might be “a proper object of municipal legislation.”[456] When it came to treaties, Madison observed that:
although the house of representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and co-operation.[457]
Hamilton’s comments certainly do not contradict Madison’s on this score, and indeed they might even be harmonious. Hamilton may have sought to avoid contradicting either Jay or Madison, or the themes they had expressed, which may have produced the tensions in his own contributions to the Federalist. Or Hamilton, having begun with Jay’s views, may have moved over time toward a more republican vision similar to Madison’s.[458]
Hamilton continued his ambiguity in his next paper on the treaty power, Federalist No. 75.[459] Again, Hamilton seemed to be cleaning up after Jay’s excessive arguments in Federalist No. 64. Instead of praising the aristocratic nature of the Senate, Hamilton suggested that the Constitution’s allocation of the treaty power made sense because “[t]he power in questions seems . . . to form a distinct department, and to belong properly neither to the legislative nor to the executive.”[460] Hamilton explained why the treaty power was not purely legislative nor purely executive:
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 defence, seem to comprise all the functions of the executive magistrate. The power of making treaties is plainly neither the one nor the other. 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. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong properly neither to the legislative nor to the executive. 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 part of the legislative body in the effect of making them.[461]
Hamilton’s argument here suggests that treaties may be given “the operation of laws,” but that they will have nothing like the effect of laws. In his mind, treaties were but “contracts” between sovereigns, rather than rules given by the sovereign to the subject. Employing similar language in the Pennsylvania convention, Wilson had declared that treaties would have the “operation of laws,” but that Congress’s co-operation would be necessary to achieve domestic effect. In some respects, Hamilton’s argument parallels Wilson’s in assuming that the treaty power would be dependent on subsequent action by the branches --- whether the executive in the “exertion of the common strength” or the legislative in prescribing rules for the citizen --- to be made meaningful. If a treaty did call for either executive or legislative effect, Hamilton suggests, it would require the concurrence of one of these branches’ power. Hamilton seems to have joined Wilson in melding the argument that treaties constituted binding obligations with the traditional principle that the power to make treaties and the power to legislate occupied different spheres.[462]
Anti-Federalist reaction to these arguments were mixed. Some still pressed to give the House a formal role in the ratification of treaties. Anti-Federalists in the Maryland Convention criticized the expansive nature of the treaty power, which they feared “would control the national legislature, if not supersede the Constitution of the United States itself.”[463] Others came away from the discussions of the Treaty Power with an understanding, seemingly shared by Federalist writers, that Congress’s legislative powers would be required to implement treaty obligations. Most notably, the “Federal Farmer,” who had attacked the Treaty Clause in October, accepted the argument that Congress’s plenary power in other areas, notably commerce, would require its co-operation with international agreements.[464] In a second series of letters, published in May,[465] the Federal Farmer now declared that “[o]n a fair construction of the constitution, I think the legislature has a proper controul over the president and senate in settling commercial treaties.”[466] Because of Article I, Section 8’s Commerce Clause, he reasoned, Congress had a monopoly on the authority to regulate trade and commerce with foreign nations. On the other hand, Article II, Section 2 gave the President the authority to make treaties, of which the Federal Farmer believed there were three kinds: treaties of commerce, treaties of peace, and treaties of alliance. In order to ensure that the Constitution is “consistently construed,” he concluded, “it shall be left to the legislature to confirm commercial treaties.”[467]
Recognizing Congress’s authority over commercial treaties maintained the traditional separation between the power to legislate and the power to make treaties. Such agreements “are in their nature and operation very distinct from treaties of peace and alliance,” the Federal Farmer observed.[468] Although treaties of peace and alliance may require secrecy, and so may justify the exclusion of the House, “very seldom” do “they interfere with the laws and internal policy of the country.”[469] “To make them,” the Federal Farmer argued, “is properly the exercise of executive powers,” and therefore the Constitution did not grant the legislature any authority to interfere with them. But commercial treaties were an entirely different matter:
As to treaties
of commerce, they do not generally require secrecy, they almost always involve
in them legislative powers, interfere with the laws and internal police of the
country, and operate immediately on persons and property, especially in the
commercial towns: (they have in
Great-Britain usually been confirmed by Parliament;) they consist of rules and
regulations respecting commerce; and to
regulate commerce, or to make regulations respecting commerce, the federal
legislature, by the constitution, has the power. I do not see that any commercial regulations can be made in
treaties, that will not infringe upon this power in the legislature; therefore, I infer, that the true
construction is, that the president and senate shall make treaties; but all commercial treaties shall be subject
to be confirmed by the legislature. This construction will render the clauses
consistent, and make the powers of the president and senate, respecting treaties,
much less exceptionable.[470]
In accepting their arguments, the Federal Farmer had made the Federalists’ case as clear as could be. Treaties of peace and alliance, generally executive in nature, did not require legislative participation because they did not affect the conduct of domestic parties. Treaties of commerce, however, did require congressional participation, because they “interfere with the laws and internal police of the country” and “operate immediately on persons and property.” Unlike treaties of peace and alliance, concerns about secrecy did not require the exclusion of the House from participation in commercial agreements. The Constitution’s grant of commerce power in Article I would ensure that Congress could police this distinction between legislation and treaties.
By overlooking the political dynamic at work during the debates in the press, internationalist scholars have a failed to appreciate the give-and-take, and eventual resolution, that occurred over the question of treaty enforcement during the ratification. Although they place great reliance upon such ratification debates, internationalist scholars make the mistake of looking to only a few selected sources from the period. Professor Vazquez, for example, says: “That the Constitution made treaties operative on individuals and enforceable in the courts is shown further by the Framers’ statements during the ratification debates.”[471] Professor Paust declares further “That this expectation predominated among the Framers can be seen as well in the Federalist papers.”[472] The only Federalist Paper both Vazquez and Paust discuss, however, is No. 22, in which Hamilton mentions that “[t]he treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must like all other laws, be ascertained by judicial determination.”[473] They both take No. 22 as the Federalists’ leading explanation for the self-executing nature of treaties.
Hamilton’s comment in No. 22 was not about whether treaties can take direct effect in American law at all. Indeed, Hamilton’s purpose at this point in the debate was only to point out the problems of the Articles of Confederation system, not to defend the specific provisions of the new Constitution.[474] Indeed, Hamilton does not mention the treaty power, the Supremacy Clause, or the judiciary’s powers under Article III in Federalist No. 22. Rather, Hamilton merely was criticizing the Articles of Confederation for its “want of a judicial power.”[475] Hamilton was attempting to show only that an effective national government needed a judiciary to ensure a uniform interpretation of federal law. A system in which treaties did not assume immediate enforceability in domestic law is not truly relevant to Hamilton’s argument, because if a treaty were non-self-executing, it would pose no threat to the uniform interpretation of federal law. The treaty could not be subject to different readings and applications in different courts because it could not arise in any court until Congress had passed implementing legislation. Once the legislature had passed such a law would a national government need a judiciary to enforce it. Hamilton was not even discussing the Supreme Court or the Supremacy Clause, not to mention Congress’s Article I powers.
While internationalist scholars look to a few other sources, they miss the course of the Federalist/Anti-Federalist debates and fail to focus on the historically most significant writers. Professor Vazquez, for example, quotes extensively from a Federalist, “Anti-Cincinnatus,” who argued that “public treaties become the law of the land in that being made by constitutional authority, i.e., among us, by those whom the people have authorized for that purpose, are in a proper sense their own agreements, and therefore as laws, bind the several states, as states, and their inhabitants, as individuals.”[476] There is no indication, however, that Anti-Cincinnatus’s writings received much, if any, attention in the ratification debate, or that his arguments were taken up by others, in contrast to the Federalist Papers or the Letters of the Federal Farmer. It also does not appear that Anti-Cincinnatus was addressing the relationship of the treaty power and the legislative power, for he appears to argue that treaties, even in the absence of a Supremacy Clause, have a binding effect on the nation, but he does not discuss how they are to be made binding in domestic law. Professor Paust provides a few more quotes from the Federalist Papers, particularly from Hamilton’s Federalist No. 23 and Jay’s Federalist No. 64,[477] but the former, like the preceding No. 22, does not discuss the Constitution but instead the desirability of a stronger national government, while the latter was more the anomaly than the exemplar of the Federalist position in the press debates. Neither Vazquez nor Paust examines the most significant discussion of the treaty power and its relationship to the separation of powers in Federalists No. 69 and No. 75, nor do they discuss the most significant Anti-Federalist writing on treaties and non-self-execution by George Mason, the Pennsylvania ratifying convention’s dissenters, and the Federal Farmer, all of which are more on point concerning treaties and the question of non-self-execution.[478] Without undertaking a broader survey and analysis of the ratification debates in the press, internationalist scholars fail to fully understand the arguments of both sides in the ratification struggle, their thoughts on the treaty power and the legislative power, and the common understandings that they reached.
Our review of the Federalist and Anti-Federalist discussion in the press show that a much more complex debate occurred concerning the relationship between treaties and the legislative power, one missed by internationalist writers. Anti-Federalists made the Treaty Clause part of their general criticism of the Constitution for violating the separation of powers and for containing open-ended power grants that threatened individual liberties. From Jay’s haughty praise of the vesting of foreign affairs powers in the best and brightest, Federalist responses evolved into Hamilton’s and then Madison’s defense of the treaty power as not invading the legislative power, except in those areas, such as commerce, where Congress would have a role in implementing treaties. Coming toward the end of the struggle over ratification battle in the press, the Letters of the Federal Farmer show that some of the leading framers --- both Federalist and Anti-Federalist --- had reached a shared understanding that treaties would not have direct effect in areas within Congress’s Article I powers, although they still disagreed perhaps on whether this arrangement would provide a sufficient check on the powers of the national government.[479] Only after re-tracing the lengthy, sophisticated, and detailed debate that spanned several months can we reconstruct this common understanding and its significance.
Events in Virginia put this understanding to the test. During the crucible of ratification in that critical state, it appears that Federalists and some Anti-Federalists agreed that the treaty power would not supplant Congress’s power to legislate. There are several reasons to pay close attention to the Virginia convention. Those who study the legislative process, for example, place great interpretive weight on congressional committees and their reports, because they serve as “veto-gates” in which the committee and its members can sink a bill or significantly modify its provisions before it can progress to the floor for a vote.[480] Institutionalists also look to the actions of certain leaders on different issues in an effort to identify the preferences of the median legislator who supports a bill.[481] Taking these considerations into account, Virginia was perhaps the critical state in the ratification effort: geographically it linked the South and the North, and its political leadership in the nation was such that even Alexander Hamilton doubted that the Constitution could survive the subsequent New York convention without Virginia’s earlier approval.[482] It is difficult to imagine the Union succeeding, even if the necessary states had ratified, without the participation of the state of Washington, Jefferson, Madison, and John Marshall, among others.[483]
Nor was the Constitution railroaded through the Virginia. According to the records that survive, Virginia witnessed the fullest, and most contentious, debate of all of the ratification conventions. Anti-Federalist political leadership was perhaps stronger in Virginia than anywhere else; the opposition initially had available not just George Mason and Edmund Randolph, both of whom had attended the Constitutional Constitution, refused to sign, and explained their reasons in broadly-disseminated pamphlets, but they also had as their rhetorical leader the great speaker, Patrick Henry.[484] Federalists responded by relying upon the reputation of George Washington, the analyses of Madison and Marshall, the prestige of Edmund Pendleton, and the knowledge of local affairs of George Nicholas. As one historian has observed, “this state convention brought together nearly every public man of major influence in Virginia for a brilliant and dramatic recapitulation of the larger national debate.”[485] In the Virginia Convention we can see the arguments for and against the Constitution, and for and against the Treaty Clause, made clearly and fully by some of the leading Federalists and Anti-Federalists of the day.
The closeness of the political contest in Virginia also gives added significance to the proceedings of its state ratifying convention. Federalists had won only a narrow margin in elections for the state ratifying convention, and Anti-Federalists had made inroads in converting many of them to their cause.[486] The Anti-Federalists’ final motion to send the Constitution back to the states for amendments lost by only 88-80.[487] As a veto-gate, the Virginia convention was probably the toughest obstacle that the Constitution and the Federalists were to face in the drive to ratification. As a result, we should pay particular attention to the arguments and counter-arguments made to secure its passage in Virginia. While neither the Federalist nor the Anti-Federalist vision of the Constitution was more correct or true,[488] their debates can reveal common areas of agreement, similarities in reasoning, and sometimes a shared understanding of constitutional texts.
As the ratification process moved to Virginia, the initial responses of the Federalist to the demand for House participation did not seem to be gaining traction. Even before the Convention had begun in earnest, Anti-Federalists in the state had focused on the Treaty Clause. Ratifying in February, 1788, Massachusetts had opened up new political possibilities because Federalists there had agreed to propose recommendatory amendments to the Constitution as the price of ratification.[489] By the beginning of the Virginia ratifying convention in June, Anti-Federalists were drafting amendments to the Treaty Clause to make clear Congress’s role in implementing treaties. In response to a May, 1788 letter from New York Anti-Federalists to prominent Virginia Anti-Federalists seeking cooperation, George Mason proposed a list of amendments.[490] One of the amendments sought to vest the treaty power in the President and an advisory council, rather than the Senate.[491] Further, Mason recommended, “all Treaties so made or entered into, shall be subject to the Revision of the Senate and House of Representatives for their Ratification.”[492] In Mason’s view, commercial agreements ought to be subject to a two-thirds vote, and treaties disposing of territory, fishing, or navigation claims were to require an even higher three-quarters vote, for approval.[493] Patrick Henry told New York Anti-Federalists in a separate letter that Mason’s amendments would form the core of Anti-Federalist proposals for amendments during the Virginia convention.[494] Although eight of the necessary nine states had already adopted the Constitution by the time of their convention, Virginia Anti-Federalists sought to stall the Federalist drive by conditioning ratification upon the acceptance of such amendments.
These amendments were not just designed to satisfy Mason’s earlier criticisms of the Treaty Clause, they also targeted Anti-Federalist concerns about the Jay-Gardoqui controversy. By the time of the ratification, navigation of the Mississippi had become one of the major issues in Virginia politics.[495] Virginia’s territory included the present-day states of West Virginia and Kentucky, and settlers in these parts of the state were dependent on the Mississippi River to transport their goods at low cost. Failure to gain navigation rights to the Mississippi threatened to close off expansion of the West to Virginia and the other southern states. In 1788, growth in the West was seen as primarily benefiting the South: many of the settlers were from southern families, Southern states hoped to be conduits for western goods, and the admission of the western states might give the South --- or at least its agricultural interests --- dominance in the federal government.[496] As William Grayson, a former president of the Continental Congress and leading Anti-Federalist lawyer, put it: “If the Mississippi was yielded to Spain, the migration to the Western country would be stopped, and the Northern States would, not only retain their inhabitants, but preserve their superiority and influence over that of the Southern.”[497]
From a political perspective, the Mississippi River question became the issue of the Virginia Convention, more so than even slavery, because it symbolized the threats of sectional division.[498] It contrasted the voting strengths of North and South on a sectional question that might be replicated in the Senate. It brought to the forefront the different economic interests of North and South. While the South, and particularly Virginia, viewed Western expansion as critical to its economic growth and important for the continued health of an agriculturally-centered economy, the North --- at least in Southern eyes --- was based far more on trade, manufacturing, and commerce, and so had been all too willing to barter away future growth in the West for a trade agreement with Spain.[499] The Mississippi issue might even have expressed different, perhaps nascent, differences between North and South about broader issues of political economy. Southerners might have believed that expanding to the West, and keeping open routes for the shipping of American raw materials to Europe, would allow America to remain a nation of republican yeoman-farmers.[500] Virginians also might have viewed Northern trade policies as efforts to engage in the rapid economic growth and urbanization that had produced political corruption in England. Finally, the Jay-Gardoqui affair demonstrated not only that the North had more votes by state, and that it differed with the South politically and economically, but also that the North, given the opportunity, actually would press its advantage to enter agreements that benefited only its region.
Anti‑Federalists charged that a Treaty Clause that failed to provide for House participation would allow such sectionalism to flourish. In particular, they were concerned that the Constitution required that only two-thirds of the Senators present, rather than two-thirds of all Senators, could consent to a treaty, which effectively weakened the nine-state rule under the Articles. Because of the possibilities created by the lower quorum requirement, Anti‑Federalists feared that it would be rather easy for the North to frustrate Southern plans for expansion.[501] Without the involvement of the House either in the treaty process or impeachment, Anti‑Federalists charged, there would be no way to prevent self‑interested use of the treaty power. “The Senate, by making treaties may destroy your liberty and laws for want of responsibility,” Patrick Henry told the Virginia convention on June 5. “Two‑thirds of those that shall happen to be present, can, with the president make treaties, that shall be the supreme law of the land: They may make the most ruinous treaties; and yet there is no punishment for them.”[502] Only the inclusion of the House, in which large states like Virginia would be proportionally represented, could prevent a treaty that would play to sectional interests.[503]
Using the threat of a Mississippi closure to good effect, Anti-Federalists early in the convention managed to convert ten of the twelve delegates from the Kentucky region to oppose the Constitution.[504] Repeated Anti-Federalist attacks on the treaty power and the Mississippi question may even have begun to turn the tide against ratification as the convention reached the middle of June.[505] Although Virginia Federalists had anticipated these arguments and prepared for them, their initial arguments had not proven persuasive, which convinced Federalists to emphasize the role of the President and the House in the treaty process. In a revealing letter written on May 17, only two weeks before the beginning of the convention, James Madison laid out the strategy to a Federalist ally, George Nicholas.[506] Nicholas had received information that the delegates from the Kentucky region were focused wholly upon the question of the Mississippi River,[507] and he became so concerned that he asked Madison for talking points on the issue.[508] Initially, Madison recommended that Federalists should stress that a stronger national government both would give the United States the international respect and power to achieve its foreign policy goals, such as opening up navigation of the River, and would protect expanded settlement in the West. He also argued, somewhat unconvincingly, that the lower quorum requirement for ratification would encourage full attendance in the Senate, thereby safeguarding against sectional treaties.[509] Federalists would make these arguments in early June, but to little effect.
Anti-Federalist demands for House participation in treaties, and for tighter restrictions on the treaty power, seemed to hold more sway among the delegates. Madison had anticipated these arguments too. In his May memo to Nicholas, Madison decided that Federalists should emphasize the majoritarian aspects of the treaty process. First, Federalists were to focus attention on the republican character of the President. His participation in treaties “is an advantage which may be pronounced conclusive,” said Madison, because the President was “elected in a different mode, and under a different influence from that of the Senate.”[510] The President’s accountability to the people would force him to act in the national interest and to oppose the use of the treaty power for sectional purposes. “As a single magistrate too responsible, for the events of his administration, his pride will the more naturally revolt against a measure which might bring on him the reproach not only of partiality, but of a dishonorable surrender of a national right.”