The Framers never flirted with the idea of vesting the treaty power in the President alone. On the contrary, the treaty-making power, vested in the President and the Senate, is the embodiment of the Framers’ preference for collective decision making in the formulation, conduct and management of American foreign policy. In fact, the Framers envisioned the treaty power as the principal vehicle for the conduct of the nation’s foreign affairs, a veritable “fourth branch of government,” in the words of James Madison and Alexander Hamilton. Speaking of the prominent role assigned to the Senate, Hamilton told his colleagues in the New York Ratifying Convention that “They, together with the President, are to manage all our concerns with foreign nations.”
As late as August 7, 1787, the draft constitution excluded the President from both the treaty making and appointment powers, which were lodged, exclusively, in the Senate. Clearly, there was no movement afoot to create either an Imperial Presidency or an executive-driven foreign policy apparatus. On August 23, the Convention considered for the first time the recommendation of the Committee of Detail that “the Senate shall have power to make treaties.” Madison noted in the discussion that because the Senate represented “the states alone,” that “the President should be an agent in Treaties.” For Madison, the word, “agent” meant a “deputy,” someone who represents and acts for another. In his recommendation, then, Madison believed that the President should be an agent for the Senate in making treaties. Madison recognized that treaty making involved executive functions exercised in subordination to the Senate. It is likely that Madison was drawing on the experience of Congress under the Articles of confederation. While Congress possessed the sole power of making treaties, it created the office of Secretary of Foreign Affairs—an executive officer—to carry out Senate policies during treaty negotiations.
After Madison’s remark involving presidential participation in treaty making, Gouverneur Morris of Pennsylvania declared that he had doubts above involving the Senate at all; he would be satisfied, though, with an amendment that tacked onto the motion: “but no Treaty shall be binding on the U.S. which is not ratified by a law.” Ratification by law meant enactment of a statute, which meant that Morris, at least indirectly, wanted to add the House of Representatives to the treaty-making process, by requiring that the house ratify the Senate’s action.
For different reasons, Madison and Morris were uncomfortable with the idea of vesting the treaty power in the Senate alone. At the core of their concerns lay the fear that, as a result of the “Great Compromise” of July 16, which gave the states equal representation in the Senate, that the Senate would become a battleground for states’ rights interests, sectional interests and economic interests, that would prevail over and, perhaps, overwhelm the national interests. Without a role for the House of Representatives, Morris argued, the Senate, alone, might make a treaty requiring “all the rice of South Carolina” to be sent to a single foreign port. James Wilson, another delegate from Pennsylvania, supported Morris by arguing that the Senate could sell out the interests of a state or a section of the country, as in a Senate striking an agreement with a foreign nation to abandon western interests in navigation on the Mississippi or the fishing interests of New England. The discussion revealed a great deal of uncertainty among the delegates. Madison, for example, wondered aloud whether both houses ought to be involved in the making of commercial treaties while “the President & Senate” should jointly make treaties of peace. No one commented on Madison’s remark, prescient as it was, and the Convention remanded the question of the treaty power to the Committee of the Whole for further consideration.
The “Grand Committee,” as it was known, was charged with the task of making recommendations on “such parts of the Constitution as have been postponed” and on parts of reports on which no action had been taken. The committee, headed by David Brearly, the high-respected Chief Justice of New Jersey, reported language that was embraced by the Convention: “The President by and with the advice and Consent of the Senate, shall have power to make treaties.” That design had been recommended by Alexander Hamilton as early as June 18, in his memorable and influential speech to the Convention. There, Hamilton proposed that the “supreme Executive” would “have with the advice and approbation of the Senate the power of making all treaties.” That was the same speech in which Hamilton declared that the “Senate” should “have the sole power of declaring war,” and that the President should “have the direction of war when authorized or begun.” Hamilton’s view that the President should be included in diplomatic matters, but denied the authority to initiate war, captured the views of the delegates and proved influential in the Convention.
The inclusion of the President in treaty making—as a co-equal partner—did not detract from the legislative nature of the treaty power, and it did not in any way create a platform for presidential domination of American foreign policy, although it did put him in a position of leadership. Recall that Madison, on August 23, had said that “the President should be an agent in Treaties,” and that the “Grand Committee” had essentially embraced his suggestion as a means of placing a check on the authority of the Senate. But what did this design mean for presidential leadership in foreign affairs? The President might act by himself, that is independently, but he could not accomplish anything; neither could the Senate. It could advise and consent; but only the President could make a treaty, even if he required the concurrence of the Senate. The phrase, “advice and consent” signified that the President was dependent on the Senate.
The historic meaning of “advice and consent,” words of art and borrowed from the English legal history and practice, limited the President’s power. In the latter stages of 17th Century England, no bill could become law unless it received the endorsement of both the Parliament and the Crown. The prefatory formula of the endorsement stated that a bill was enacted or made by the king “by and with the advice and consent” of the two houses of Parliament. That formula designated the legislative practice. After the Glorious Revolution in 1689, however, Parliament became supreme and the king’s role became ceremonial. The use of the formula—“By and with the consent”—in the recommendations of the Grand Committee, which the delegates in the Convention adopted, connoted the legislative nature of treaty making in the minds of the Framers. The Framers saw the treaty power as essentially legislative in character, an original meaning retained through Article 6 of the Constitution—the Supremacy Clause—which makes the Constitution, laws in pursuance thereof, and treaties, the law of the land. Once made or signed by the President, a treaty becomes law, or as John Jay stated, once made, treaties “are to have the force of laws.” In Federalist No. 75, Hamilton expressed the point directly when he said that although the power of making treaties was a shared one, between the President and Senate, the treaty power “will be found to partake more of the legislative than of the executive character. . . .”
The phrase, “advice and consent,” signified in the making of treaties, as it did in the appointment power, a two-stage process. But the clause used in appointments is not the same as the clause used in making treaties. The President makes treaties by and with the Advice and Consent of the Senate, but he “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. . . .” Regarding appointments, then, the Constitution assigns an initiative to the President, but that is not the case with the making of treaties. “Advice” required the Senate’s involvement in foreign affairs decisions and negotiations as to treaties, and its recommendation of the office or job description as to nominations. In neither case was the Senate meant to be a pro forma instrument for endorsing decisions reached by the President alone. On the contrary, “consent” indicated ratification. “Advice and consent” indicated a deliberate involvement followed, in cases of agreement, by ratification. The coextensive nature of the treaty power implies that the President and Senate, together, are to participate in all stages of treaty- making, that is, throughout the entire process of making treaties. The Framers, as we have seen, knew how to confer upon the President a singular function, as in “nominate” in the Appointments Clause. The fact that they did not provide a similar function for the President in the making of treaties, as in, “he shall negotiate, and by and with the advice and consent of the Senate, make treaties,” speaks volumes against a reading that would separate a presidential power to negotiate a treaty from full participation by the Senate in all phases of treaty-making.
Justice George Sutherland, in his opinion for the Court in United States v. Curtiss-Wright (1936), observed of the President’s role in treaty-making: “He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.” Sutherland’s position has been roundly criticized, on several grounds. Article 2 of the Constitution makes no mention of “negotiation,” which makes it difficult to distill from silence a plenary presidential power of negotiation. The debates in the Constitutional Convention evince no evidence of such a claim. Then, too, the act of advising is devoid of meaning if a treaty is negotiated by the President and deposited on the doorstep of the Senate without having engaged the chamber in discussions and consultation about the treaty. Advice is not given after a treaty, has been negotiated and concluded. Advice, rather, is given during the process of discussion and deliberation. If the Framers had so understood advice, Article 2 would have provided a limited role for the Senate, one confined to mere “consent.” To put a fine point on the matter, consider that, from the time of King James I, the Crown had sought the advice and consent of Parliament in making treaties. To assume that the Framers had intended to vest the President with a power denied to the King of England, is to ignore the sweep of history: England’s repudiation of the royal prerogative, the conversion of the Kingship into a ministerial office and, finally, the development of the Treaty Clause in Philadelphia.
The Framers’ design of the Treaty Clause was duly implemented by President George Washington when, in August of 1789, sought the advice of the Senate on propositions regarding a proposed treaty with an Indian tribe. He advised a Senate Committee that, “in all matters respecting Treaties, oral communications [to the Senate] seem indispensably necessary; because in these a variety of matters are contained, all of which not only require consideration, but some of them may undergo much discussion; to do which by written communications would be tedious without being satisfactory.” As it happened, oral communications proved to be impracticable, but Washington continued to seek the advice of the Senate by message before opening negotiations, and throughout the entire process of treaty making. But all that proved to be unworkable was oral consultation, and that was because the Senate committee, in awe of Washington, felt inhibited from the necessary debate in his presence. As a delegate to the Constitutional Convention, he well knew, and appreciated, the virtue of seeking advice from the Senate. Although the oral communications were abandoned, Washington continued to seek advice from the Senate in written form, before opening negotiations. Thus, the President sought approval from the Senate on the selection of treaty negotiations, and advice on their negotiating instructions.
Subsequent 19th Century presidents followed Washington’s precedent and encouraged Senators to assist in negotiations of treaties. They understood, as President James K. Polk noted, the “prudence” of consulting with the Senate in advance of “important measures of foreign policy which may ultimately come before them for their consideration.”
The 20th Century, however, witnessed the erosion of this joint effort and the assumption by presidents that negotiation was an exclusively executive concern. As an academic, Woodrow Wilson had argued, in Congressional Government (1885), that the President could treat the Senate with indifference. He encouraged presidents to act independently, without consulting the Senate. He reasoned that after these unilateral actions, the Senate could be bullied into granting its “consent,” if not its “advice,” with the nation’s honor at stake. This “mousetrap theory” had disastrous consequences for the nation in the aftermath of World War I. One of Wilson’s gravest miscalculations was his decision to exclude prominent senators from the negotiation of the Versailles Treaty. Efforts by the executive to present the Senate with a fait accompli can backfire; the Senate may retaliate by adding amendments, shelving treaties, or rejecting them outright.
Wilson’s constitutional and political errors were glaring. Other presidents—Harding, Hoover and Truman, among them—included senators as members of U.S. delegations to negotiate treaties, as a means of promoting harmony between the two branches. Washington, not Wilson, proved to be a more effective model in making treaties.