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Government the exclusive power to make treaties. Article IX of the articles provided that the United States, in Congress assembled, should have "the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article-of sending and receiving ambassadors entering into treaties and alliances," with the qualification that no such treaty should restrain the legislative power of the respective States to impose certain imposts and duties or to prohibit certain exportation or importations. Any treaty required the assent of nine States. Articles VI provided that no State without the consent of the United States in Congress assembled, could "enter into any conference, agreement, alliance, or treaty." The articles, however, contained no provision for Federal legislation to implement a treaty, no supremacy clause, and did not provide for a Federal judiciary with power to construe and enforce treaties.
Dissatisfaction with the practical workings of these provisions was one of the principal reasons which led to the new Constitution. Thus, Governor Randolph, in presenting the Virginia plan at the Constitutional Convention of 1787, enumerated the defects in the existing articles which had led to the proposal for revision. An abstract of the speech, in Governor Randolph's hand, is set out in Madison's notes of the Convention. It states:
"He then proceeded to enumerate the defects: 1. that the confederation produced no security aga [nst] foreign invasion; congress not being permitted to prevent a war nor to support it by th[eir] own authority-Of this he cited many examples; most of whi[ch] tended to shew, that they could not cause infractions of treaties or of the law of nations, to be punished: that particular states might by their conduct provoke war without controul; and that neither militia nor draughts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money" (1 Farrand, Records of the Federal Convention, 19). [Emphasis added.]'
Thus, it was deficiencies in the powers to conduct foreign relations, including specifically the inability to enforce treaties within the States, that were regarded by Randolph as the first of the defects in the Articles of Confederation which needed to be remedied. In subsequent discussions, there were repeated references to the fact that treaties had been violated by the States. (See, e. g., statements of Mr. Pinckney and Mr. Madison on June 8, 1787, 1 Farrand, Records of the Federal Convention, 164.) Thus, on June 19, 1787, Mr. Madison, in commenting on the New Jersey plan, stated the considerations which he felt should be the test of any proposal, and as the first requisite stated:
"1. Will it prevent those violations of the law of nations & of Treaties which if not prevented must involve us in the calamities of foreign wars? The tendency of the States to these violations has been manifested in sundry instances. The files of Congs. contain complaints already, from almost every nation with which treaties have been formed. Hitherto indulgence has been shewn to us. This cannot be the permanent disposition of foreign nations. A rupture with other powers is among the greatest of national calamities. It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them on the whole. The existing confederacy does [not] sufficiently provide against this evil. The proposed amendment to it does not supply the omission. It leaves the will of the States as uncontrolled as ever" (1 Farrand, Records of the Federal Convention, 316).
Accordingly, each of the principal plans proposed to the Convention contemplated broad and effective treaty provisions. The Virginia plan proposed that the national legislature and the national executive should enjoy, respectively, the legislative and exclusive rights vested in Congress by the Articles of Confederation, which, as we have seen, included the exclusive power to make treaties, and that in addition the national legislature should be empowered "to legislate in all cases in which the several States are incompetent, or in which the har
provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever."
McHenry's notes on Randolph's speech are even more explicit. He states: "1st. It does not provide against foreign_invasion. If a State acts against a foreign power contrary to the laws of nations or violates a treaty. it cannot punish that State, or compel its obedience to the treaty. It can only leave the offending State to the operations of the offending power. It therefore cannot prevent a war. • None of the judges
in the several States [was] under the obligation of an oath to support the confederation, in which view this writing will be made to yield to State constitutions" (1 Farrand, Records of the Federal Convention, 24-25).
mony of the United States may be interrupted by the exercise of individual legislation," and to negative any State law contravening the Articles of Union. The Federal judiciary was to be empowered to decide any "questions which may involve the national peace and harmony." (1 Farrand, Records of the Federal Convention, 21-22). The New Jersey plan would have given the Federal Government all the authority then vested in the Congress under the Articles of Confederation as well as authority over trade and commerce; it would have given the federal judiciary jurisdiction over the "construction of any treaty or treaties," and would have provided that all acts of Congress "and all Treaties made & ratified under the authority of the U. States shall be the supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their Citizens" (1 Farrand, Records of the Federal Convention, 243-245). The plan submitted by Alexander Hamilton would have given the Executive power, with the advice and approbation of the Senate, to make treaties, and would have contained a supremacy clause (1 Farrand, Records of the Federal Convention, 292–293). The Pinckney plan would apparently have added to the treaty provisions of the Articles of Confederation a provision giving a Federal Supreme Court power to review State court decisions involving treaties (3 Farrand, Records of the Federal Convention, 608).
Thus, it was generally assumed that the Federal Government should have the full and exclusive treaty power. This assumption was made before any agreement had been reached as to what other powers the Federal Government should possess. At no time during the Convention was there any suggestion that the treaty power should be limited as to scope or subject matter. The intention was plainly to give to the Federal Government in respect of foreign affairs the full power of sovereignty.
The first aspect of the treaty provisions to come up for discussion was that which became ultimately embodied in the supremacy clause. The Virginia resolutions had proposed that the legislature have power to negative State laws contravening the Articles of Union. This proposal, with an amendment by Dr. Franklin to add the words "or any Treaties subsisting under the authority of the union" was initially agreed to without debate or dissent (1 Farrand, Records of the Federal Convention, 47, 54, 61.) Subsequently, the proposed power to negative State legislation was rejected. Those opposed to the provision argued that it would be offensive to the States and that a State law that could be negatived would be set aside by the judiciary or, if necessary, could be repealed by a national law. Accordingly, in place of this provision there was proposed a supremacy clause providing that all legislative acts of the United States and all treaties made and ratified under the authority of the United States should be the supreme law of the respective States insofar as they related to such States or their citizens and inhabitants and should be binding on the State judiciary. This proposal was unanimously adopted (2 Farrand, Records of the Federal Convention, 21-22, 27-29). Subsequently the supremacy clause was extended to "treaties made or which shall be made" under the authority of the United States, so as to "obviate all doubt concerning the force of treaties preexisting" (2 Farrand, Records of the Federal Convention, 417)."
Perhaps the most troublesome issue before the Convention had been the representation of the States in the national legislature. This issue was finally resolved by the Great Compromise, pursuant to which two Houses of Congress were established, the States to be represented equally in the Senate and to be represented in proportion to their population in the House. Almost equally troublesome was the nature, term, and manner of selection of the Chief Execu
Although the definition of the jurisdiction of the Federal courts took various forms at different stages of the Convention (1 Farrand. Records of the Federal Convention, 232, 2 id.. 46, 186), the inclusion in it of an express reference to treaties occasioned no dissent (2 Farrand, Records of the Federal Convention, 431).
7 Pinckney and Madison thereafter proposed to enlarge this provision to authorize the negativing of any laws which the National Legislature would judge to be improper, Madison urging that the States had shown a constant tendency to encroach on the Federal authority and to violate national treaties. This proposed enlargement of the power to negative laws was defeated (1 Farrand. Records of the Federal Convention, 162-173).
The proposed power to negative State laws was revived again and extensively debated. It was objected to as unnecessary in view of the supremacy clause, and as offensive to the States, and was strenuously urged as necessary. A motion to refer the question to a committee failed. 6 to 5 (2 Farrand, Records of the Federal Convention, 390-391).
One other matter relating to treaties deserves mention. As drafted by the Committee of Detail, the Constitution would have empowered Congress to call out the militia "to execute the laws of the Union, enforce treaties." The reference to treaties was deleted as "superfluous since treaties were to be 'laws'" (2 Farrand, Records of the Federal Convention, 389-390).
tive. It was not until these issues had been resolved that the question of which agency of the Federal Government should exercise the treaty power was considered.
The Committee of Detail, to which the resolutions adopted by the Convention had been submitted for embodiment in a draft Constitution, reported a draft which gave the Senate the power to make treaties (2 Farrand, Records of the Federal Convention, 183). During the discussion of other provisions of the draft, numerous references to the treaty power were made. Thus, in discussing a proposal that, as to all legislative acts each House of Congress "have a negative on the other." Colonel Mason objected that this would subject treaties to control by the House, since treaties were to be laws. Gouverneur Morris, in supporting the proposal, urged that treaties were not laws in this sense. The proposal was defeated (2 Farrand, Records of the Federal Convention, 197). Similarly, in discussing the question whether the Senate should have power to originate money bills, Colonel Mason suggested that the Senate already had great power since it could "sell the whole Country by means of Treaties." Mr. Mercer said the Senate should not have the treaty power, since that power "belonged to the Executive department." He added that a treaty should not be a law "till ratified by the legislative authority" (2 Farrand, Records of the Federal Convention, 297). In discussing the provision giving Congress power to make war, it was urged, on the one hand, that that power should be either in the President or the Senate, and on the other that Congress should also have the power to make peace, since otherwise a few senators could "give up part of the U. States." Except for the change of "make" to "declare," both proposals were defeated, the proposed grant to Congress of the power to make peace failing 10-0 (2 Farrand, Records of the Federal Convention, 318–319).
When the treaty provision came on for discussion, two proposals were made. Madison urged that the President should participate in treaty making. Gouverneur Morris, although doubting whether the treaty power should be in the Senate, proposed adding a proviso that "no Treaty shall be binding on the U. S. which is not ratified by a law," explaining that "In general he was not solicitous to multiply & facilitate treaties." After some discussion, the whole clause was referred to a committee of five (2 Farrand, Records of the Federal Convention, 392-394). Thereafter this provision, together with others which had been postponed, notably those relating to the selection and powers of the President, was referred to a Committee of Eleven (2 Farrand, Records of the Federal Convention, 481).
The Committee of Eleven proposed that the President should have power to make treaties with the advice and consent of the Senate, and that consent of two-thirds of the Senators present should be required (2 Farrand, Records of the Federal Convention, 495). The committee had also proposed that if no candidate for President had a majority, the Senate should choose the President (id., 494). Mr. Wilson strenuously objected that thus to give the Senate power to elect the President, approve appointments, try impeachments, and to make treaties which are to be the laws of the land would make that body too powerful. Others voiced like objections (2 Farrand, Records of the Federal Convention, 522-525). Thereafter, it was decided to put the power to elect the President in the House (2 Farrand, Records of the Federal Convention, 527-529). When the treaty provision came on to be discussed, no objection was made to giving the President the power to make treaties. It was proposed that treaties should be made with the advice and consent of the Senate and House of Representatives, Mr. Wilson stating that "As treaties * ** are to have the operation of laws, they ought to have the sanction of laws also." It was urged, however, that the necessity for secrecy in the case of treaties forbade reference of them to the whole legislature. The proposal was defeated, ten to one (2 Farrand, Records of the Federal Convention, 538). The requirement of consent of twothirds of the Senators present received very extensive discussion. It was objected to as putting it in the power of a minority to control the will of the majority, Madison proposed that as to peace treaties the two-thirds requirements should not apply. This proposal was first adopted unanimously, but then objected to on the ground that in peace treaties "the dearest interests will be at stake, as the fisheries, territories, etc." (2 Farrand, Records of the Federal Convention, 540-541). On further reconsideration, various proposals were made and discussed, resulting finally in agreement to the provision requiring consent in all cases by two-thirds of the Senators present (2 Farrand, Records of the Federal Convention, 547-550).
2. Proceedings of the State ratifying conventions.-At a number of the State ratifying conventions references, similar to Randolph's opening statement at the Federal Convention, were made to the deficiencies in the treaty provisions under the Articles of Confederation as one of the principal sources of weakness under those articles. (See, e. g., remarks of Oliver Elsworth, Connecticut, 2 Elliott's Debates 189; of James Wilson, Pennsylvania, 2 Elliott's Debates 431, 463, 526; see, also, 541-542 (McKean); of James Madison, Virginia, 3 Elliott's Debates 135-136; of William Dave, North Carolina, 4 Elliott's Debates 18; of Charles Pinckney, South Carolina, 4 Elliott's Debates 253-254.)
The rather fragmentary report of the debates at the Philadelphia convention indicates that the treaty provisions were discussed in some detail, objections being made that the power to advise and consent to treaties should have been given to both Houses of Congress, or that it was improper to combine executive and legislative powers in the Senate. (See 2 Elliott's Debates 505-507; see, also, 466, 476-477, 513.) The convention ratified the Constitution without recommending amendments (1 Elliott's Debates 319). Thereafter a meeting at Harrisburg proposed a number of amendments, including a provision "that no treaty, which shall hereafter be made, shall be deemed or construed to alter or affect any law of the United States, or of any particular State, until such treaty shall have been laid before and assented to by the House of Representatives in Congress." (2 Elliott's Debates 546.)
At the Maryland convention a number of amendments were urged, including one providing "that no treaty shall be effectual to repeal or abrogate the constitutions or bills of rights of the States, or any part of them." (2 Elliott's Debates 553.) This proposal was rejected (id., pp. 552, 556).
In the South Carolina Legislature, prior to calling a convention, there was considerable discussion of the treaty provisions, particularly on the question whether a treaty should become the law of the land without the concurrence of the House (4 Elliott's Debates 265-267, 280; see, generally, 263-281, 293). No amendments relating to treaties were proposed by the convention.
At the New York convention, a number of delegates expressed fears of the great powers of the Senate, mentioning the long term of senators and their special powers in relation to treaties, appointments, impeachments, etc. (2 Elliott's Debates 286-306 passim). John Lansing proposed an amendment "that no treaty ought to operate so as to alter the constitution of any State; nor ought any commercial treaty to operate so as to abrogate any law of the United States" (2 Elliott's Debates 409). That amendment, however, was not included among those proposed by New York in the instrument of ratification. (See 1 Elliott's Debates 327–331.)
At the Virginia convention the treaty provisions were thoroughly discussed. (See 3 Elliott's Debates 315-316, 331, 341-365, 499-516, 609-610, 613, 650.) Patrick Henry, one of the principal opponents of the Constitution, urged that "the important right of making treaties is upon the most dangerous foundation." (3 Elliott's Debates 315-316). In particular, a number of fears were expressed that 10 senators could give up the rights of navigation to the Mississippi (See, e. g., 3 Elliott's Debates 341, 353) or could cede important territories (id., p. 610). Patrick Henry expressed fears of treaties "infringing our liberties" (id., p. 503), and urged that at a minimum the House should participate in all treaties (id., pp. 514, 650-651). Madison, Randolph, and other supporters of the Constitution, in answering these objections, urged that the combination of President and Senate afforded adequate safeguards (e. g., p. 347), that it was necessary to make treaties the supreme law (p. 507), that it was impossible to define the subjects to which treaties could relate (p. 514), but that a treaty could not destroy the Constitution (p. 504), or be repugnant to its spirit (pp. 507, 514). Patrick Henry proposed a number of amendments, which the convention recommended for the consideration of the First Congress; these included a provision that commercial treaties should require the concurrence of two-thirds of all the Senators, that no treaty ceding territorial claims or claims to fishing or navigation be made except in cases of the most urgent and extreme necessity, and then only with the concurrence of both Houses (3 Elliott's Debates 610).
At the first North Carolina convention, numerous objections to the treaty provisions were considered (e. g., 4 Elliott's Debates 27-28, 115–135, 188, 192, 215). It was urged that the House should participate (pp. 115, 119, 125, 131), and responded that the small States insisted on giving the Senate this power (p. 120), and that the long tenure of Senators would give them more opportunity to learn about our foreign relations (p. 41). It was objected that by treaty it would be possible to infringe freedom of religious worship by establishing a particular
TREATIES AND EXECUTIVE AGREEMENTS
church (p. 192), to which Iredell responded that the treaty-making power could
3. Subsequent proposals to amend the treaty provisions.-As noted above, a number of the State ratifying conventions proposed extensive amendments to the Constitution, including several relating to the treaty provisions. In response to these proposals, the First Congress submitted to the States 12 proposed amendments, of which 10 were adopted, becoming the first 10 amendments. Other amendments were considered by the House but not proposed by it. None of these proposals, however, related to the treaty provisions of the Constitution. (See 1 Annals of Congress 88, 424-450, 660-665, 672, 717-764, 767-777; 2 id. 19831989.)
In 1796 in connection with the Jay treaty with Great Britain, the House adopted a resolution requesting the President to lay before it a copy of the instructions sent to the negotiators. During the very extended debate on this resolution (5 Annals of Congress 394, 400-401, 424, 426-771), it was urged that any treaty which deals with a matter within the legislative powers of Congress is not law until sanctioned by Congress (5 Annals of Congress 467-470) and that if a commercial treaty were allowed to become effective without approval of the House, the President and the Senate could amend the Constitution (pp. 537, 578) and absorb all legislative power (p. 467). In response, it was contended that the treaty power was advisedly placed in the President and Senate only; that the treaty power extended to all fit subjects of negotiation (pp. 516, 524, 662); that if a treaty exceeded their constitutional powers it was void (pp. 429, 432, 438); but that if it was within those powers, participation by the House was not necessary to make it law. President Washington, however, refused to comply with the resolution, asserting that the treaty-making power was placed by the Constitution in the President and Senate and that the Househad no powers of participation in the making of treaties and no right to inquire into the merits of treaties made (5 Annals of Congress 760-761). These events also led to a proposal by the Virginia Assembly of a constitutional amendment "That no treaty containing any stipulation upon the subject of the powers vested in Congress by the eighth section of the first article shall become the supreme law of the land, until it shall have been aproved in those particulars by a majority of the House of Representatives; and that the President before he shall ratify any such treaty, shall submit the same to the House of Representatives” (Acts of Assembly of Virginia, 1795, p. 55). No action was taken on this proposal.
More recently, amendments frequently have been proposed to facilitate treatymaking by eliminating the requirement that treaties be approved by two-thirds of the Senate, and substituting approval by a majority of both Houses. (E. g., H. J. Res. 60, 79th Cong., 1st sess., passed by the House, 91 Congressional Record 4367-4368. See H. Rept. No. 139.) posals, see Proposed Amendments to the Constitution (H. Doc. 551, 70th Cong., For earlier instances of such pro1st sess., 120–122).
C. Nature and scope of certain early treaties
The framers clearly recognized that a constitution which is meant to endure must be cast in terms sufficiently general to be able to adapt itself to new circumstances and new needs. But even an examination of the treaties actually entered into in the eighteenth century by a nation of 13 States will give some indication of the breadth which they clearly intended the treaty power should have.10 It has been pointed out that one of the major defects found to have existed under the Confederation was the inability of the National Government to enforce compliance with treaties by the States. Perhaps the principal source of difficulty in this respect had arisen out of the treaty of peace with Great Britain of
10 For summaries of the common subject matters of treaties in the eighteenth century generally see Fraser, Treaties and Executive Agreements (S. Doc. No. 244, 78th Cong., 2d sess., pp. 5-13).