John Parillo Explains the Nuances of Federalist 64

John Jay, by Gilbert Stuart

In yet another paper that seems written to us today, John Jay re-enters the fray by discussing the process by which the new United States may enter into a treaty with others. The colonies were blessed, in part, by their distance from other countries. While the major players in Europe clearly had designs on the new territory, the logistics involved with keeping settlements fortified, or equipping armies, were daunting. What made the British such a formidable empire was their navy, which gave them the ability to project power almost anywhere in the world.

But as soon as troops disembarked from that same navy, they found themselves at the end of an extremely long, slow, and clunky, supply chain. The founders relished this virtual fortress because it gave the new territory time to establish itself in both commerce and agriculture. They viewed treaties as solemn agreements, but not to be entered into lightly. No less than George Washinton himself warned against the dangers of foreign entanglements.

The second section of the Constitution gives power to the President, “BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO THIRDS OF THE SENATORS PRESENT CONCUR.”[1] (Emphasis in Jay’s paper, not in the Constitution). Further, Jay points out that these two groups, the office of the Presidency and Senators, will possess certain qualities, based on their method of being chosen, that makes them suited to make such momentous decisions.

The “President to be chosen by select bodies of electors” rather than directly by the people, and the Senate, chosen only by state legislatures, both have an advantage over “elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors.” Thus the President and the Senate, “will in general be composed of the most enlightened and respectable citizens” and therefore their choices would be “distinguished by their abilities and virtue” to a far greater degree than had they been chosen by the population at large like the House of Representatives.

Add to that the more mature age requirement of both the Senate and the President, as well as the requirement for supermajorities required for treaty approval, and the result would be a more careful disposition toward making agreements with other countries.

Jay acknowledges that there may be times when secrecy and “dispatch” are necessary in treaty negotiations. A potential treaty party may not want to have the details of discussions open to discovery. They may be willing to confide in a single person, less so in a body like the Senate, and even less likely in a popularly elected body. This structure allows the President to keep secrecy where necessary, but the Advice and Consent clause means that he risks getting a treaty approved if the Senate does not have enough information to make a proper decision.

The decision still lies with the President as to what information he wants to release, and on his ability to gain Senate approval, but ultimately there is no way for him to do it alone. Jay sees this as a reasonable compromise. Because there will inevitably be occasions when time would be of the essence. Jay responds that, even in such cases, the Senate approval process need not be a hindrance as the President can convene the Senate at any time.

There was some objection that treaties are merely “supreme laws” and thus should follow the process that it takes to create any other law. Jay points out that no country would enter into an agreement with another if they thought that the agreement would be binding on them “but on us only so long and so far as we may think proper to be bound by it.” The unique nature of treaties requires the unique approval process that is beyond the traditional legislative process. In addition, Jay points out that the unique structure of the Senate, with two Senators per state chosen by state legislatures, eliminates the possibility of the country entering into treaties that might disadvantage certain groups of states over others. This was a very real possibility at the time given the diversity of commerce between states, and we see this even today when trade agreements, not approved by the Senate as treaties, disadvantage the populations of certain states over those in others.

There is, of course, the possibility that there may be unwise or corrupt agreements between countries. To this Jay responds that those who believe we could make such a mistake, even with these precautions, “must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct.” He is, of course, precisely correct. The only way we could enter into unwise agreements would be for us to ignore the careful process set for us by our Founders.

Indeed

  1. All quotes are from https://guides.loc.gov/federalist-papers/text-61-70

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3 thoughts on “John Parillo Explains the Nuances of Federalist 64”

  1. Even with all the “safeguards” of the Constitution, the People have no say in treaties and are devoid of “what’s cooking” such as with the TPP. In paragraph 3, “. . . but the Advice and Consent clause means that he risks getting a treaty approved if the Senate does not have enough information to make a proper decision.” Well, hmmm . . . not even those who are to approve might not have the full picture.

    I’ve not yet read the letters of the Founders after the Constitution was adopted. With maybe 60,000 pages or more to slog through, there might be modified views on what they did. ‘Library of Liberty’ is a source for these books.

  2. “In addition, Jay points out that the unique structure of the Senate, with two Senators per state chosen by state legislatures, eliminates the possibility of the country entering into treaties that might disadvantage certain groups of states over others.”
    I wonder what he would say, now that State legislatures no longer pick their senators.
    One other possible problem would be if a senate got so lopsided in representation that one side could coerce countries into making laws into treaties that our senate could then ratify as our laws. That’s not quite the stretch, if you consider that the left has been pushing treaties that let the global body(UN) to govern waterways(UNLOS) and these ridiculous climate treaties and “Accords”. If one particular ideology gained such power, imagine how we could lose most of the protections of our Constitution, in a very short time span.
    Considering how many safeguards “from” changing the Constitution, in the case of tyranny, like how long it takes to call a Convention of States, or the long standing constitutional amendment process, that is worthy of concern.
    If things, like election fraud are not better protected against, the stretch from good governance to a complete re-write of our Constitution is very small.

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