Chapter: The Powers of the Senate

From The Independent Journal. Wednesday, March 5, 1788.

JAY

To the People of the State of New York:

IT IS a just and not a new observation, that enemies to particular
persons, and opponents to particular measures, seldom confine their
censures to such things only in either as are worthy of blame. Unless on
this principle, it is difficult to explain the motives of their conduct,
who condemn the proposed Constitution in the aggregate, and treat with
severity some of the most unexceptionable articles in it.

The second section 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."

The power of making treaties is an important one, especially as it
relates to war, peace, and commerce; and it should not be delegated but
in such a mode, and with such precautions, as will afford the highest
security that it will be exercised by men the best qualified for the
purpose, and in the manner most conducive to the public good. The
convention appears to have been attentive to both these points: they
have directed the President to be chosen by select bodies of electors,
to be deputed by the people for that express purpose; and they have
committed the appointment of senators to the State legislatures. This
mode has, in such cases, vastly the advantage of 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.

As the select assemblies for choosing the President, as well as the
State legislatures who appoint the senators, will in general be composed
of the most enlightened and respectable citizens, there is reason to
presume that their attention and their votes will be directed to those
men only who have become the most distinguished by their abilities and
virtue, and in whom the people perceive just grounds for confidence.
The Constitution manifests very particular attention to this object. By
excluding men under thirty-five from the first office, and those under
thirty from the second, it confines the electors to men of whom the
people have had time to form a judgment, and with respect to whom they
will not be liable to be deceived by those brilliant appearances of
genius and patriotism, which, like transient meteors, sometimes mislead
as well as dazzle. If the observation be well founded, that wise kings
will always be served by able ministers, it is fair to argue, that as an
assembly of select electors possess, in a greater degree than kings,
the means of extensive and accurate information relative to men and
characters, so will their appointments bear at least equal marks of
discretion and discernment. The inference which naturally results from
these considerations is this, that the President and senators so chosen
will always be of the number of those who best understand our national
interests, whether considered in relation to the several States or to
foreign nations, who are best able to promote those interests, and whose
reputation for integrity inspires and merits confidence. With such men
the power of making treaties may be safely lodged.

Although the absolute necessity of system, in the conduct of any
business, is universally known and acknowledged, yet the high importance
of it in national affairs has not yet become sufficiently impressed on
the public mind. They who wish to commit the power under consideration
to a popular assembly, composed of members constantly coming and
going in quick succession, seem not to recollect that such a body must
necessarily be inadequate to the attainment of those great objects,
which require to be steadily contemplated in all their relations and
circumstances, and which can only be approached and achieved by measures
which not only talents, but also exact information, and often much time,
are necessary to concert and to execute. It was wise, therefore, in the
convention to provide, not only that the power of making treaties should
be committed to able and honest men, but also that they should continue
in place a sufficient time to become perfectly acquainted with our
national concerns, and to form and introduce a system for the
management of them. The duration prescribed is such as will give them
an opportunity of greatly extending their political information, and
of rendering their accumulating experience more and more beneficial
to their country. Nor has the convention discovered less prudence in
providing for the frequent elections of senators in such a way as to
obviate the inconvenience of periodically transferring those great
affairs entirely to new men; for by leaving a considerable residue
of the old ones in place, uniformity and order, as well as a constant
succession of official information will be preserved.

There are a few who will not admit that the affairs of trade and
navigation should be regulated by a system cautiously formed and
steadily pursued; and that both our treaties and our laws should
correspond with and be made to promote it. It is of much consequence
that this correspondence and conformity be carefully maintained; and
they who assent to the truth of this position will see and confess that
it is well provided for by making concurrence of the Senate necessary
both to treaties and to laws.

It seldom happens in the negotiation of treaties, of whatever nature,
but that perfect SECRECY and immediate DESPATCH are sometimes requisite.
These are cases where the most useful intelligence may be obtained,
if the persons possessing it can be relieved from apprehensions of
discovery. Those apprehensions will operate on those persons whether
they are actuated by mercenary or friendly motives; and there doubtless
are many of both descriptions, who would rely on the secrecy of the
President, but who would not confide in that of the Senate, and still
less in that of a large popular Assembly. The convention have done
well, therefore, in so disposing of the power of making treaties, that
although the President must, in forming them, act by the advice and
consent of the Senate, yet he will be able to manage the business of
intelligence in such a manner as prudence may suggest.

They who have turned their attention to the affairs of men, must have
perceived that there are tides in them; tides very irregular in their
duration, strength, and direction, and seldom found to run twice exactly
in the same manner or measure. To discern and to profit by these tides
in national affairs is the business of those who preside over them; and
they who have had much experience on this head inform us, that there
frequently are occasions when days, nay, even when hours, are precious.
The loss of a battle, the death of a prince, the removal of a minister,
or other circumstances intervening to change the present posture and
aspect of affairs, may turn the most favorable tide into a course
opposite to our wishes. As in the field, so in the cabinet, there are
moments to be seized as they pass, and they who preside in either should
be left in capacity to improve them. So often and so essentially have
we heretofore suffered from the want of secrecy and despatch, that the
Constitution would have been inexcusably defective, if no attention had
been paid to those objects. Those matters which in negotiations usually
require the most secrecy and the most despatch, are those preparatory
and auxiliary measures which are not otherwise important in a national
view, than as they tend to facilitate the attainment of the objects of
the negotiation. For these, the President will find no difficulty to
provide; and should any circumstance occur which requires the advice and
consent of the Senate, he may at any time convene them. Thus we see that
the Constitution provides that our negotiations for treaties shall
have every advantage which can be derived from talents, information,
integrity, and deliberate investigations, on the one hand, and from
secrecy and despatch on the other.

But to this plan, as to most others that have ever appeared, objections
are contrived and urged.

Some are displeased with it, not on account of any errors or defects in
it, but because, as the treaties, when made, are to have the force
of laws, they should be made only by men invested with legislative
authority. These gentlemen seem not to consider that the judgments of
our courts, and the commissions constitutionally given by our governor,
are as valid and as binding on all persons whom they concern, as the
laws passed by our legislature. All constitutional acts of power,
whether in the executive or in the judicial department, have as much
legal validity and obligation as if they proceeded from the legislature;
and therefore, whatever name be given to the power of making treaties,
or however obligatory they may be when made, certain it is, that the
people may, with much propriety, commit the power to a distinct body
from the legislature, the executive, or the judicial. It surely does
not follow, that because they have given the power of making laws to the
legislature, that therefore they should likewise give them the power to
do every other act of sovereignty by which the citizens are to be bound
and affected.

Others, though content that treaties should be made in the mode
proposed, are averse to their being the SUPREME laws of the land. They
insist, and profess to believe, that treaties like acts of assembly,
should be repealable at pleasure. This idea seems to be new and peculiar
to this country, but new errors, as well as new truths, often appear.
These gentlemen would do well to reflect that a treaty is only another
name for a bargain, and that it would be impossible to find a nation
who would make any bargain with us, which should be binding on them
ABSOLUTELY, but on us only so long and so far as we may think proper to
be bound by it. They who make laws may, without doubt, amend or repeal
them; and it will not be disputed that they who make treaties may alter
or cancel them; but still let us not forget that treaties are made, not
by only one of the contracting parties, but by both; and 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. The proposed
Constitution, therefore, has not in the least extended the obligation
of treaties. 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.

However useful jealousy may be in republics, yet when like bile in
the natural, it abounds too much in the body politic, the eyes of both
become very liable to be deceived by the delusive appearances which that
malady casts on surrounding objects. From this cause, probably, proceed
the fears and apprehensions of some, that the President and Senate may
make treaties without an equal eye to the interests of all the States.
Others suspect that two thirds will oppress the remaining third, and
ask whether those gentlemen are made sufficiently responsible for their
conduct; whether, if they act corruptly, they can be punished; and
if they make disadvantageous treaties, how are we to get rid of those
treaties?

As all the States are equally represented in the Senate, and by men
the most able and the most willing to promote the interests of their
constituents, they will all have an equal degree of influence in that
body, especially while they continue to be careful in appointing proper
persons, and to insist on their punctual attendance. In proportion as
the United States assume a national form and a national character, so
will the good of the whole be more and more an object of attention, and
the government must be a weak one indeed, if it should forget that the
good of the whole can only be promoted by advancing the good of each
of the parts or members which compose the whole. It will not be in the
power of the President and Senate to make any treaties by which they and
their families and estates will not be equally bound and affected with
the rest of the community; and, having no private interests distinct
from that of the nation, they will be under no temptations to neglect
the latter.

As to corruption, the case is not supposable. He 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. The idea is too gross and too invidious to be
entertained. But in such a case, if it should ever happen, the treaty so
obtained from us would, like all other fraudulent contracts, be null and
void by the law of nations.

With respect to their responsibility, it is difficult to conceive how
it could be increased. Every consideration that can influence the
human mind, such as honor, oaths, reputations, conscience, the love
of country, and family affections and attachments, afford security for
their fidelity. In short, as the Constitution has taken the utmost care
that they shall be men of talents and integrity, we have reason to be
persuaded that the treaties they make will be as advantageous as, all
circumstances considered, could be made; and so far as the fear of
punishment and disgrace can operate, that motive to good behavior is
amply afforded by the article on the subject of impeachments.

PUBLIUS

 In this paper, Jay defends the provision in the Constitution granting power to the president to make treaties with the consent of two thirds of the Senate. He argues that it was important to give this power to the president and Senate, which he argues will consist of the "most enlightened and respectable citizens," given the minimum age requirements for their office, as well as other factors. Jay contends that it is better to trust these responsibilities to the Senate than the House since the members of the former are elected less frequently and to longer terms. This allows them to acquire the extensive knowledge necessary for handling such grave matters as treaties with other nations. Another advantage of this system, according to Jay, is that it allows the president to conduct negotiations in secrecy and then, at an appropriate point, get the advice of the senate. Jay responds to objections that the treaties ought to be amendable by legislative acts by arguing that treaties are fundamentally different from regular laws. They must be binding on the American people and not subject to change by a mere act of Congress. Otherwise, other nations may not be willing to enter into treaties with the US.

