Federalist 75: On the Power to Make Treaties

Federalist 75 deals with the President and his power to make treaties with other nations, tempered by a required approval of two thirds of the Senate. We immediately see here, once again, the bias of our Founders to inaction over action. Of course there were those who questioned the wisdom of this rule, thinking that it would be better to allow the President to make these decisions on his own, and still others who wanted to involve the lower chamber of our Congress in this process. Some objected that the making of treaties seemed “more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them.[1]

Hamilton makes an interesting distinction between the two branches in that ”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 defense, seem to comprise all the functions of the executive magistrate.” This is a critical distinction for us today. It is clear that the founders had no intention of allowing the President to act as a king, either by spending money or by making unilateral decisions. But a treaty is somewhat different than either a law or the enforcement thereof. Ultimately treaties are “CONTRACTS with foreign nations” or agreements between “sovereign and sovereign”.

Hamilton acknowledges that monarchies in countries where they rule, are able as chief magistrates to enter into treaties with other countries. But he goes on to point out that “it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years’ duration.” Given the turnover that is the design of our government, allowing a President sole discretion over making an agreement with another sovereign nation is unwise and ultimately unjust. A President who is not in his position for life “might sometimes be under temptations to sacrifice his duty to his interest” and enter into an agreement that, while good for him personally or for his party, is not the right thing for his country.

Conversely, putting the power to negotiate treaties in the hands of the Senate alone would be “to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations.” Negotiations by committee are naturally awkward and difficult. Better then to have the President handle the discussions and the Senate to ensure that those discussions represent the long-term interests of the country.

To those who objected that the House of Representatives should be involved, Hamilton points out that, in the popularly elected House “a nice and uniform sensibility to national character; decision, SECRECY, and despatch, are incompatible with the genius of a body so variable and so numerous.” Indeed, we have seen this in our recent history where individual members of the House have acted on their own causing chaos in our diplomatic relations with other countries. The sheer complication of adding another body into the discussion is enough for Hamilton to dismiss that suggestion as unworkable.

The other objection was that the proposed constitution required two thirds of the Senate to approve and not two thirds of the Senators “PRESENT”. There was always the possibility that a group of Senators might absent themselves from the chamber in order to stall a treaty. Perhaps that could be compromised to be a “PROPORTION” of those present instead of the entire body. As we see again and again, the design of the Constitution is to prevent the usurpation of power by one or few people. The two thirds requirement of the entire Senate prevents the President and a minority of Senators from making poor decisions. Says Hamilton, “we shall not hesitate to infer that the people of America would have greater security against an improper use of the power of making treaties” that are unwise, or reflect the ill-thought-out views of one President, or might be popular to some faction of voters but ruinous to the Republic as a whole.

Indeed.

  1. All quotes are from https://guides.loc.gov/federalist-papers/text-71-80#s-lg-box-wrapper-25493464

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1 thought on “Federalist 75: On the Power to Make Treaties”

  1. Just imagine the cost and headaches of the US entering the Paris Climate Accords or the Kyoto Climate Accord, and and even that TPP, by treaty. Makes me wish it required 75 votes to legalize a treaty, but so far 67 has been good enough.

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