The Constitutional Convention was called for the purpose of correcting the deficiencies of the Articles of Confederation. Chief among the deficiencies were those that weakened the international position of the United States. Accordingly, few issues rivaled in importance the maintenance of national security and the conduct of foreign affairs, and thus the search for an efficient foreign policy design was a primary goal and animating purpose of the Convention.
There was broad agreement among American leaders that the foreign affairs flaws of the Articles of Confederation stemmed not from the absence of an independent executive but from the lack of authority granted to Congress. The Articles had created an ineffective national government that lacked coercive power over the states. Indeed, the outstanding characteristic of the Articles—state sovereignty—was reflected in theory by the fact that the governing document did not capitalize “united states,” and in practice by the refusal of states to honor their federal obligations.
Contemporaries discussed three particular weaknesses.
Indeed, the pervasive infidelity of the states to the international obligations and treaty agreements of the United States subverted the ability of the union to maintain its foreign credit and position as a sovereign nation. The frequent treaty violations, according to James Madison, justly known as the Father of the Constitution for his role as its chief architect, constituted one of the principal “vices of the political system of the United States.” They led Alexander Hamilton to lament in Federalist No. 22: “The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government?”
The inadequacies of the Articles—mainly the debilitating weakness of the national government—supplied a critical focal point for the Framers’ deliberations. The Convention’s decision to create the Supremacy Clause was a pivotal move, for the declaration in Article 6 that, “This Constitution, and the Laws of the United States and all Treaties, . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding,” signified the end of “state sovereignty” and enabled the federal government to wrest control of foreign policy from the recalcitrant states. While the Supremacy Clause certainly had profound implications for areas other than diplomacy, there is no exaggeration in the observation that it provided the sine qua non of a vital and vibrant national foreign policy.
The Articles of Confederation also supplied, in some key respects, a point of departure. The Articles had vested executive as well as legislative authority in Congress. Article 6 granted Congress control over the conduct of foreign policy, and Article 9 granted it “the sole and exclusive right and power of determining on peace and war.” But the Philadelphia Convention had embraced the principle of separation of powers, and now the delegates were forced to fashion a division of authority between the legislative and executive branches.
In the Founders’ view, the executive model was obsolete; it belonged to an earlier age, the world of monarchy, one ill-suited to the new age of republicanism. As a consequence, their constitutional design for foreign affairs embodied the principle of collective decision-making—shared powers, discussion, debate and checks and balances—in the formulation, management and oversight of American foreign policy. The preference for shared decision making in foreign affairs is, as we have observed, abundantly clear. The war power is vested in the House and the Senate. The authority to regulate foreign commerce is a shared by both houses of Congress and the President. The construction of the treaty power affirms the theme of collective decision-making. Speaking of the President, Article II provides: “He shall have Power, by and with the advice and consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.” The compelling simplicity and clarity of the “plain words” of this clause hardly leave room for doubt as to its meaning. Given the absence of any other clause that so much as intimates a presidential power to make agreements with other nations, it is to be supposed, as Hamilton observed, that the treaty power constitutes the principal vehicle for the conduct of American foreign relations. In fact, there was no hint at the Constitutional Convention of an exclusive presidential power to make foreign policy. To the contrary, all of the arguments of the Framers and Ratifiers were to the effect that the Senate and the President, which Madison and Hamilton described as a “fourth branch of government” in their capacity as treaty maker, “are to manage all our concerns with foreign nations.” Although a number of factors contributed to this decision, the pervasive fear of unbridled executive power loomed largest. Hamilton’s statement in Federalist No. 75 fairly represents these sentiments: “The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.”
The Framers might have adopted the English or Executive model, for reasons of familiarity, tradition, and simplicity, as a means of promoting and securing its vaunted values of unity, secrecy and dispatch—but they did not. Like other nations, Great Britain concentrated virtually unfettered authority over foreign policy in the hands of the executive. The Framers, of course, were thoroughly familiar with both the vast foreign affairs powers that inhered in the English Crown by virtue of the royal prerogative, and the values, sentiments and policy concerns that justified this arrangement. In his Second Treatise of Government, John Locke described three powers of government: the legislative, the executive and the federative. Federative power was the power over foreign affairs—“the power of war and peace, leagues and alliances, and all the transactions with all persons and communities without the Commonwealth.” The federative power was “almost always united” with the executive. Locke warned that the separation of executive and federative powers would invite “disorder and ruin.” Sir William Blackstone, the great eighteenth-century jurist, explained in his magisterial four-volume Commentaries on the Law of England, that the King exercised plenary authority over all matters relating to war and peace, diplomacy, treaties, and military command. Blackstone defined the King’s prerogative as “those rights and capacities, which the King enjoys alone.” The Monarch’s prerogatives, “those which are rooted in and spring from the King’s political person,” include the authority to send and receive ambassadors and the power to make war or peace. The King, moreover, could negotiate “a treaty with a foreign state, which shall irrevocably bind the nation,” and he could issue letters of marque and reprisal, which authorized private citizens to perform military actions on behalf of the nation. According to Blackstone, the King was “the generalizing, or the first in military command,” and he possessed “the sole power of raising and regulating fleets and armies.” Blackstone explained that in the exercise of this lawful prerogative, the King “is, and ought to be absolute; that is, so far absolute that there is no legal authority that can either delay or resist him.”
The Convention’s rejection of the English model and Locke’s admonitions could not have been more emphatic. The Framers’ blueprint for foreign affairs reflects their determination to establish a republic which, as we have seen, is grounded on collective decision-making, a principle that reflects confidence in the crossfire of discussion and debate as a method for producing superior laws, policies and programs. The Framers’ rejection of the executive model was equally rooted in their deep aversion to unrestrained, unilateral executive power and their commitment to the republican principle of collective decision-making, that the conjoined wisdom of the many is superior to that of one. The Framers perceived a broad equatorial divide between the hemispheres of monarchism and republicanism, between the values of the Old World and the New World. The Framers’ deliberate fragmentation of powers relating to diplomacy, treaties, and war and peace, and the allocation of the various foreign affairs powers to different departments and agencies of government reflected their determination to apply the doctrines of separation of powers and checks and balances, the principle of the rule of law, and the elements of constitutionalism to the realm of foreign relations as rigorously as they had been applied to the domestic domain. The grant to the President of limited constitutional powers in foreign affairs, in contrast to the sweeping discretionary prerogatives possessed by the King laid bare the historic transformation wrought by the Framers. Most conspicuous, of course, was the Convention’s decision to subject the President to impeachment, a decisive move that broke from the fiction indulged in England that the King could no wrong. Among the offenses adjudged worthy of impeachment, the Framers determined, was executive abuse of foreign affairs powers. James Iredell, a delegate to the North Carolina Ratifying Convention, and a future U.S. Supreme Court Justice, observed that “if the President tried to make a treaty without the Senate, he would be impeached.” ****** (check quote) Manifestly, if the President were to have possessed the blanket authority in the realm of foreign policy enjoyed by the King, he could not have been subjected to the congressional power of impeachment.
The Framers’ critical decision represented a bold departure from the prevailing wisdom of the day, which urged the unification and centralization of foreign relations powers in the executive and warned that the separation of foreign affairs powers would invite disorder, chaos and even disaster. However, the Framers brought a fresh outlook, a new vision, to foreign policy, one that recognized the conduct of foreign affairs includes some elements that are primarily legislative in nature, others that are essentially executive, and still others that are characteristically judicial. In Federalist No. 47, James Madison observed that “treaties with foreign sovereigns” assume, once they are made, “the fore of legislative acts.” The Constitution, moreover, characterizes the power to declare war as legislative and the power to conduct it as executive. The judiciary assumes a role in foreign affairs as well since the Supremacy Clause imposes upon judges the duty to enforce treaties as the law of the land. The Constitutional Convention discarded the British model as obsolete and inapplicable to the republican manners of the United States.
Placed in its historical context, then, the Framers’ decision to break from the prevailing foreign policy making practices of other governments at the time was simply stunning. It is explicable, perhaps, only in terms of their intellectual orientation, their understanding of history, and their own practical experiences. The effective control and management of foreign policy and the use of armed force was, of course, a primary goal and driving fore behind the Convention. Indeed, given the widespread ramifications of foreign relations, “nothing,” as Arthur Schlesinger, Jr., has observed, “was more crucial for the new nation than the successful conduct of its external relations.” The difficult search for an efficient foreign policy design was complicated by the Framers’ heightened fear of the abuse of power. They were steeped in English history and they well knew that the “management of foreign relations,” as Madison stated, “appears to be the most susceptible of abuse of all trusts committed to a Government . . . .” War alone could plunder the nation’s treasury, ravage its society and, of course, destroy its very lifeblood. The Framers contemplated the possibility and consequences of treasonous acts, realized that fortunes were to be made in the dark and secretive world of espionage, and feared the “loss of liberty at home” that might result from “danger, real or pretended, from abroad.” They were also greatly influenced by the stresses and strains inflicted by the constitutional crisis and political convulsions of the seventeenth-century English Civil Wars. The absolutist claims of the Stuart Kings and the abuse of power by manipulative ministers had hardened their view toward the executive. The pervasive fear of unbridled authority and the specter of an embryonic monarch precluded presidential control of foreign affairs.
The Founders’ deep-seated fear of the abuse of power, which resonated from the colonial period and reflected their reading of history, made the quest for an effective foreign affairs system an arduous task. The pervasive fear of a powerful executive, particularly a President who might wield unilateral authority in an area so sensitive and critical as that of foreign relations, was reinforced by the republican ideology that permeated the Convention. The Framers’ attachment to collective judgment—joint participation, consultation, and concurrence—and their decision to create a structure of shared powers in foreign affairs, in the words of James Wilson, “produced a security to the people.” The emphasis on collective decision-making came at the expense of unilateral executive authority, of course, but that consequence was of little moment, given the Founders’ overriding aversion to unrestrained executive power. But that was the point, precisely. The Framers contrived a new constitutional arrangement for foreign affairs, a distinctively American contribution to politics and political science, and it was epitomized in their judgment that, in the newly-minted Republican Era, the executive unilateralism exalted by prevailing models was a shopworn, outdated method that belonged to an age and means of governance that they had rejected and discarded.
History likely reflects the Framers’ vision in rejecting unilateral presidential power in the conduct of foreign affairs. Indeed, there is reason to question claims of executive superiority. Presidential practice across two centuries confirms the wisdom of an institutionalized Presidency, confined by the Constitution. The theory of executive unilateralism, as well as its traditional, underlying arguments, was exploded in the tragedy of the Vietnam War. Those who express admiration for sweeping executive powers and call for deference to the President, advance an argument that would reduce Congress to the role of spectator and exalt rule by presidential decree. It recalls the pervasive sentiment of the Cold War and a literature of advice that urged blind trust of the executive on the ground that he alone possessed the information, facts and expertise necessary to safeguard American interests. Sentiments have seldom been so troubling, dangerous and anti-democratic. It led to the Vietnam War, the Imperial Presidency and Iran-Contra, as well as to the entrenchment of presidential supremacy in foreign relations and war-making, with its attendant military and foreign policy failures, from Cuba and Cambodia to Lebanon and Somalia. Regrettably, we may now add Iraq to the list. There is nothing, moreover, in the broader historical record to suggest that the conduct of foreign policy by executive elites has produced wholesome results. Indeed, the wreckage of empires on the shoals of executive foreign policies provides ample evidence that, as Lord Bryce noted, the wisdom of the “classes” is less than the “masses.”
The claim that the wisdom of one is superior to that of many is philosophically defective, historically untenable and fundamentally undemocratic. Since Aristotle, we have known that information alone is not a guarantee of political success; what matters are the values of the system and ultimately those if its decision makers. Americans implicit trust in the President, grounded in the belief that superior information would provide superior policy, has been betrayed by executive deficiencies in critical matters of perception, judgment and vision. U.S. Presidents, for example, failed to learn from the French that Vietnam was a quagmire, a failure that confirmed John Stuart Mills’ rhetorical derision of governmental infallibility. “Nothing is more fallible,” wrote James Iredell, a delegate to the North Carolina Ratifying Convention and a future Supreme Court Justice, “than human judgment,” a fundamental philosophical insight reflected in the Framers’ embrace of the doctrine of separation of powers and checks and balances and rejection of executive unilateralism in foreign affairs.