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The Constitution and Foreign Relations

ISSUE:  Autumn 1925


The Constitution of the United States provides in Article 2, Section 2, that the President “shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.”

Shortly after George Washington became President, a treaty was negotiated with the Creek Indians by General Knox, Secretary of War. President Washington notified the Foreign Relations Committee of the Senate that he and General Knox desired to appear to present this treaty for their concurrence, and the two Revolutionary heroes went down to the Capitol and presented the treaty. Instantly, the Senators began to suggest amendments, reservations, improvements, and objections. Washington listened a little while, and then, it is said, the father of our country uttered impatient words, put on his hat and left, swearing a mighty oath that he never, under any circumstances, would again attempt a conference with the Senate on such a subject. Thus the very first contact between the Executive and the Senate with regard to a treaty set a precedent of contest which has been rigidly adhered to.

When John Hay presented for ratification the treaty with Spain, the traditional wrangle took place. He finally wrote to Henry Adams:

A treaty of peace, in any normal state of things, ought to be ratified with unanimity in twenty-four hours. They wasted six weeks in wrangling over this one, and ratified it, with one vote to spare. We have five or six matters now demanding settlement. I can settle them all honorably and advantageously to our own side and I am assured by leading men in the Senate that not one of these treaties, if negotiated, will pass the Senate. I should have a majority in either case; but a malcontent third would certainly dish every one of them, to such a monstrous shape has the original mistake of the Constitution grown in the evolution of our politics. You must understand it is not merely my solution the Senate will reject. They will reject, for instance, any treaty whatever, on any subject, with England. I doubt if they would accept any treaty of consequence with Russia or Germany. The recalcitrant third would be differently composed, but it would be on hand.

“The Federalist” deals sparingly with the treaty-making Power. In paper No. 64, Jay, who had had diplomatic experience, spends his power combating the idea that the treaty-making power should be committed to the popular branch of Congress. The higher age-limit provided in the Constitution for Senators and their selection by State legislatures, rather than by popular vote, will, in his judgment, “confine the election 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.”

After arguing the question, he reaches the comforting inference “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 these interests and whose reputation for integrity inspires and merits confidence. With such men, the power of making treaties may be safely lodged.”

Hamilton, in No. 75 of “The Federalist,” makes a better case for the constitutional provision by showing the impracticability of committing the treaty-making power to either the President or the Senate alone. The same point of view is urged by Mr. Beck in his recent work on the Constitution. So long as we preserve, in other matters, the independence of the executive, and do not approach the European Parliamentary systems by creating executive responsibility to Congress, some sort of legislative co-operation in the treaty-making power must be retained. I should be disposed, therefore, to say that the so-called mistake of the Constitution consists, not in any association of the President and the Senate, but in the requirement of a two-thirds concurrence. Only one-third of the membership of the Senate changes every two years, and the political complexion of the third elected at any given time is entirely accidental. This requirement gives an enormous power for obstruction and delay to a minority, and as we shall see in the modern world, delay in the consideration of international problems is intolerable.

The men who wrote the Constitution were idealists, but they were not children. Perhaps with the fervor of men who were inaugurating a new theory, in which there were large recognitions of popular and democratic control, they did overlook some of the difficulties inherent in this arrangement, but the writers of “The Federalist” knew that there was such a thing as party spirit. Indeed, Patrick Henry was apprizing them of that fact daily, and they cannot have believed that when the Constitution was safely ratified, its operation would forever be entrusted to men guided exclusively by a detached and dispassionate consideration of the public interest, based upon an unprejudiced and thorough knowledge. They saw, for instance, that it would be necessary for many treaties to be negotiated secretly, and the scheme they set up deliberately contemplates the President presenting to the Senate a completed treaty for its approval, often without any opportunity on the part of the Senate to give advice while the document was in the process of negotiation. Benjamin Franklin knew enough of human nature to realize the possibilities of that situation. He told Thomas Jefferson once that lie had made it a rule, whenever in his power, to avoid becoming the draftsman of a paper to be reviewed by a public body. Jefferson further quotes him as saying:

I took my lesson from an incident which I will relate to you. When I was a journeyman printer, one of my companions, an apprentice hatter, having served out his time, was about to open shop for himself. His first concern was to have a handsome sign-board, with a proper inscription. He composed it in these words: “John Thompson, Hatter, makes and sells hats for ready money.” With a figure of a hat subjoined; but he thought he would submit it to his friends for their amendments. The first he showed it to thought the word “Hatter” tautologous, because followed by the words “makes hats,” which show he was a hatter. It was struck out. The next observed that the word “makes” might as well be omitted, because his customers would not care who made the hats. If good and to their mind, they would buy, by whomsoever made. He struck it out. A third said he thought the words “for ready money” were useless, as it was not the custom of the place to sell on credit. Every one who purchased expected to pay. They were parted with, and the inscription now stood: “John Thompson sells hats.” “Sells hats,” says his next friend. “Why nobody will expect you to give them away, what then is the use of that word?” It was stricken out, and “hats” followed it, the rather as there was one painted on the board. So the inscription was reduced ultimately to “John Thompson” with the figure of a hat subjoined.

Quite apart, however, from the complications which human nature inevitably introduces into the co-operation of those who are compelled to co-operate, both the nature of the treaty-making power and the change which progress has brought into international relations present difficulties and embarrassments.

At the very outset, the makers of the Constitution deliberately denied the House of Representatives any formal share in the making or approval of treaties, and yet, since treaties may, and often do, require legislation to enable the government to perform the engagements undertaken in them, we have the anomalous situation of the President and the Senate empowered to negotiate, ratify, and promulgate treaties without consultation with the House of Representatives, while many of the obligations assumed by the country in such treaties are unenforceable without the concurrence of the House, and indeed often without the initiative of the House of Representatives, where the obligation entails the payment of money by the United States to the other high contracting party.

This difficulty was encountered in the administration of President Washington and a sharp divergence of views arose between Hamilton and Jefferson on the subject, Hamilton taking the view that, since the Constitution authorized the President and Senate to make treaties, which, upon ratification, became the supreme law of the land, the House of Representatives had no option, but was obliged, as a matter of constitutional, as well as a moral, duty, to initiate and pass any measures necessary to the full execution of the covenants. Jefferson, on the other hand, took the view that the Constitution gave the House of Representatives sole and exclusive power to initiate money bills, and committed to the House an entirely independent discretion in that and other matters, which could not be prejudiced or foreclosed by any action which the President and Senate might take.

In the matter of the treaty with the Creek nations of Indians, to which I have already referred, Washington, in January, 1790, sent messages to both Senate and House, notifying them that he thought it important to lay before them, confidentially, various matters affecting the critical state of the Southern frontier, a knowledge of which would be involved in the treaty later to be considered by the Senate, and the terms of the proposed treaty, covering exemption from duties and imposts for the trade between the Creek Indians and the United States, would necessarily have to have ultimately the concurrence of the House.

When the Jay Treaty came up for consideration, the House of Representatives passed a resolution requesting Washington to transmit a copy of the instructions given by him to Jay, together with correspondence and other documents relative to that treaty. This request Washington declined, very sensibly:

The nature of foreign relations requires caution and their success must often depend on secrecy, and even when brought to a conclusion, a full disclosure of the measures, demands or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body is formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have, as a matter of course, all the papers respecting a negotiation with foreign powers would be to establish a dangerous precedent.

Washington further appealed in his message to his recollection as a member of the constitutional convention, recalling the fact that a proposal was made in that convention to the effect that “no treaty should be binding on the United States which was not ratified by law,” and that proposition was explicitly rejected and language adopted which vests the power of making treaties exclusively in the President, with the advice and consent of the Senate. The message concludes with a definite assertion of Washington’s position to the effect that the assent of the House of Representatives was not necessary to the validity of a treaty.

The position thus taken by Washington is, of course, the only possible view of the formal relation of the President, Senate, and House to the negotiation and ratification of treaties, but it did not dispose of the serious possibility of embarrassment which would arise from a refusal of the House to carry out provisions of treaties, requiring the passage of laws. The possibility of that embarrassment has never been removed. Throughout all the early years of our history, this subject was in constant debate, and several times a disposition has appeared in the House to assert a right to be informed in advance of obligations to be assumed in treaties, if they are to be expected to co-operate in their performance. A modus vivendi has been established, perhaps more nearly following the Jeffersonian than the Ham-iltonian theory, and the custom now is for the President to send a message to both Houses upon the ratification of a treaty, informing them of the obligations assumed thereby and recommending the enactment of the necessary legislation to execute its provisions. So far, no House of Representatives has refused to co-operate, but it is by no means difficult to imagine a situation in which a President and Senate, at variance with the House of Representatives upon some other question, would find themselves unable to secure the necessary appropriations, or laws to fulfil solemn engagements entered into in accordance with the strict letter of the Constitution and constituting not only the supreme law of our own land, but legally executed contracts with other nations. Just how much forbearance and patience we can ask other nations to exercise with us, because of our constitutional difficulties, should such a contingency arise, will, of course, depend upon circumstances. We have had experience on the other side of that situation. During the presidency of Andrew Jackson, we all but went to war with France over the so-called French claims, because the French Parliament delayed in making the appropriations necessary to carry out the terms of the treaty negotiated by the government of Louis Philippe, and in our later history President Roosevelt took harsh and decisive action with regard to the Panama Canal Zone, because, in his judgment, the Congress of the United States of Colombia delayed its ratification of arrangements agreed to between the United States and the executive of that country.

Because of the nature of our constitutional system, the treaty-making power is necessarily subject to another embarrassment which is wholly unfamiliar to other countries with which we have treaty negotiations. The Constitution does not attempt to enumerate or limit the subjects with which treaties may deal. It is generally understood that a treaty of military alliance with the United States would be subject to the power of Congress to declare war and, therefore, not an assured reliance to any power with which we might enter into such an engagement, but the Constitution of the United States overrides treaties and laws alike, and the President and Senate might inadvertently, in any one of a hundred ways, enter into engagements which would be beyond their constitutional power, and thus subject a contract entered into between us and another power to the restraints of a judicial review. There are many things which the President, with the concurrence of both Houses of Congress, may not do, and countries which enter into treaties with us must realize, at their peril, that the Supreme Court is the final arbiter as to whether or not the powers granted to the general government have been exceeded in a particular case.

Some of these difficulties have already been illustrated in our experience. Happily, the questions out of which they arose were largely domestic in their application. Nevertheless, they illustrate the constitutional limitations upon the treaty-making power and the judicial function in determining and enforcing these limitations. In the insular cases, the Supreme Court of the United States was called upon to consider the power of the President and the Senate, by treaty, to incorporate territory into our Union by cession from a defeated adversary, as in the case of Porto Rico, or by cession in the nature of sale, as in the case of the Philippine Islands. The judges of the court divided on almost every question raised, but among other things it was held that an alien people cannot be incorporated into the United States by the treaty-making power, without the express or implied approval of Congress, that the government of the United States has the power to acquire and hold territory without immediately incorporating it into the United States, and that only certain of the provisions of the Constitution of the United States follow the flag into acquired territory, in anticipation of congressional action settling the political condition of the territory so acquired.

Still another case of embarrassment arises from the fact of our dual system of government. The treaty-making power is exclusively in the general government, but many of the subjects which are ordinarily regulated between nations by treaty are, in this country, by the Constitution, reserved for the police control of the separate States. The illustration of this subject which is freshest in our minds, grew out of the enactment by the State of California of laws restricting alien ownership of lands, and apparently aimed at a local solution of the so-called Japanese question. Whether or not the general government has the power to override State action in situations of this kind, there are no precedents as yet to say, and perhaps it is not worth while to stress this particular difficulty since it is by no means peculiar to us. A somewhat similar difficulty arose at the time of the Austrian note to Serbia in 1914, that ultimatum demanding concessions from Serbia which would have required an amendment of the Serbian Constitution not possible to be enacted within the time-limit of the ultimatum, or, indeed, definitely to promise at all, but it is interesting to note in passing that the general government makes treaties without reference of them or their provisions to the States, and yet may, at any time, find itself in a situation where the government of a State takes a course of action which evades an obligation or creates a situation at variance with commitments in a treaty which apply to all parts of the country alike.


From all I have said it must be clear that the constitutional definition and distribution of the treaty-making power leaves much to be desired in the matter of clearness and certainty, and places the President of the United States in a peculiarly tentative and difficult position when he enters into negotiations with the representatives of any other nation. It is not merely that he is an agent, with the reservations and conditions imposed upon his authority, of which others are obliged to take notice, but that he is the agent of a government which reserves the right of future determination with regard to his acts, and that such future determination depends both upon the political situation in a representative body, which is not made a party to the ratification, and ultimately upon judicial determinations on constitutional questions which may not arise until long after the treaty has been ratified, and it may be continuously executed in other respects by both parties over a long period of years.

At the conclusion of the World War, President Wilson decided to go to France personally to participate in the making of the Treaty of Peace. I have no desire, in this connection, to discuss the wisdom of that determination, or of his choice of associates in the American delegation, but I do desire, and I hope I can do it dispassionately, to examine briefly his constitutional position and some of the consequences. From the time of our entrance into the war, the President endeavored to state America’s war aims, both to the Congress and to the country. Every man, woman, and child in America knew that we desired no territory by conquest, and no imposition of our political or economic will upon any other people in the world. History does not contain a case of a people entering a great military contest less selfishly than we entered the World War, and what President Wilson stated to be our aim, the country not only accepted but acclaimed. To establish peace with justice, to make the world safe for democracy, to make war in order to end war, all sound now a bit high-flown to imaginations which have cooled off, but they were phrases of real consecration, and under the spell of faith in them, men died more unselfishly and more gallantly than in any great contest which history records. President Wilson, however, during this period, was not content with handsome phrasing of indefinite, idealistic aspirations. In addresses made to the Senate and House, he drew the main outline of the re-arrangement of international relations necessary to realize our war ideals, and during all that time Senate and House and people applauded, without dissent, both the purpose and the plan.

What the President brought back from Paris in the Treaty of Versailles must be conceded to be, in the main, in harmony with American ideals, as he had repeatedly phrased them. That they were a departure, here and there, from a rigid application of these principles may be conceded. But in view of the fact that the treaty necessarily established a new world order, broke up ancient empires into independent democratic states, redistributed vast colonial domains and attempted to provide the machinery both for closing up the consequences of a world war, and assuring mankind of the maintenance of peace, there were, necessarily, on every page of it, questions and solutions about which differences of opinion were inevitable.

Moreover, there were details in the settlement about which it would have been impossible for the President to have consulted the Senate in advance, since they arose as consequential ramifications of the dissolution of old political bonds, and affected peoples in remote parts of the world, whose national aspirations and traditions, racial and economic affinities, nay, whose very names were unknown alike to the President and Senate and to most of the other members of the Versailles Conference until they developed in the course of discussion.

The treaty was sent to the Senate. The major part of the discussion of the treaty in the Senate had no relation whatever to any American interest. Prolonged debate, for instance, took place on the question of Shantung, and had to do with the rights of Japan on the Chinese mainland growing out of succession to German rights there, which originated in a treaty with China, later confirmed to Japan by a treaty between Japan and China.

Another question much debated was the Saar Valley and, of course, various aspects of the proposed League of Nations came in for their share of the discussion. At the end of a year of debate, the treaty was returned to the President by the Senate without its concurrence. It is to be noted that the Senate did not either amend the treaty or pass reservations and interpretations, and, with these as conditions, give its concurrence, but it simply sent the treaty back in the form in which it received it, rejected.

Thus, we had the extraordinary spectacle of everybody in the world accepting a treaty except a minority in the United States Senate. By processes of conference and concession, the conflicting aspirations of nations, new and old, civilized and uncivilized, victor and vanquished, were brought into harmony. The world was ready to start over again in a spirit of conciliation, and with a new faith born of the adoption of hopeful agencies, through which future differences and readjustments could be made in order to avert the disaster of recurring world conflict. A majority of the Senate could have been gotten at almost any time to ratify the treaty, but two-thirds could not be gotten, so that literally half a dozen Senators blocked the reorganization of the world.

I have not the least interest here to discuss the wisdom of any view taken by any Senator. What I am trying to do is to exhibit the situation in which the Constitution places the United States by the distribution it has made of the treaty-making power. It may be said one or two Senators should have been on the American Delegation to negotiate the treaty, but the Senate itself objected to that procedure when President McKinley appointed Senators to negotiate the Spanish Treaty, on the ground that the presence of Senators in such a body prejudiced the independent subsequent action of the Senate. Obviously, the entire Senate could not be members of the Versailles Conference, so that there literally was no way in which the mind of America could be brought into conference with the rest of the world.

The consequences of this situation are obviously far reaching and are not all yet clear. Some of the immediate consequences, however, arc clear. France, the country most concerned in the terms by which the war was to be ended, and particularly concerned from the point of view of her national security against renewed aggression by a rehabilitated Germany, gave up the right permanently to occupy the left bank of the Rhine as a strategic frontier and accepted the compromises and arrangements of the treaty as a guaranty of her greatest national interest. Those arrangements, however, were effective to protect that interest only with the United States as one of the co-operating and assuring powers. The rejection of the treaty by the United States, therefore, defeated the principal reliances of France and forced her to go forward with an arrangement which she would never, under any circumstances, have entered into or accepted, could she have known in advance that the United States would not be a party to the completed treaty. From this, immediately, has followed the occupation of the Ruhr and the continued presence of French troops on the Rhine which, day by day, is maturing a new Alsace-Lorraine issue, threatening the peace of Europe and consequently the peace of the world. It will threaten it until statesmanship finds some other answer to the demand of forty million Frenchmen that they be permanently guaranteed against aggression.

This is but one of the consequences which have ensued. Europe has remained an armed camp. Propaganda is abroad, in every direction, for a reorganization of the territorial limits fixed at Versailles. If those territorial dispositions are reopened through any other agencies than the pacific and conciliatory councils of a world conference, which will be able to assert the dominant interest of the world in peace as against the particularist aspirations of this or that nation for expansion, no one can imagine the outcome.


In no field has recent progress been greater, or raised more new questions than in the field of international relations. From the beginning of history the human race has been divided up into nations held together by traditions of racial origin, religious belief or economic interest, and in each nation there has been the common bond of a common language, which made intimate understanding possible as the basis of common aspiration. The nations have been separated from one another by natural barriers with conflicts on their outer edges occasionally extending to relatively small groups of neighboring States, but for the most part, such conflicts have been confined by limitations of possible transportation, so that the numbers engaged were relatively small and the devastation correspondingly endurable, in view of the total population and wealth of the peoples engaged.

But progress has removed the barriers, and modern means of transportation have made possible mobilizations of nations, which now move upon one another in mass formation, devoting to war not only all the man-power of the State, but all the industrial power as well. Napoleon’s invasion of Russia failed because it was impossible, by any known means of transportation, to sustain his invading army as it followed the Russian retreat to Moscow, but from 1914 to 1918, there were massed in the Western Front alone thirteen million men, and they were supplied with food, clothing, and all the infinite and prodigious apparatus of modern war by transport, which gathered up the resources of the four corners of the earth and poured them in unbroken streams back of the respective lines.

These millions of men faced one another, not because of any common interest in the immediate cause of the war, but because lines of economic interest had welded the world into one, and when the war came, each side was able to summon to its banners peoples from both hemispheres.

Progress has not only changed the extent of modern war, but has changed its character. High explosives, long-range guns, poisonous gases, airplanes, and submarines, cause modern wars to be fought with new weapons and in new atmospheres. In all this we see but the beginning. The superb developments of research science, on their bright side, prolong the life of man and infinitely ameliorate his condition, but on the sombre side they intensify the destructiveness of his passions and already they may be said to have placed the human race in a position where, in a mad moment, it could commit universal and collective suicide.

The time element in international affairs has now become the critical and controlling thing. The telegraph and the wireless have now made it possible for the human race to be spontaneously and simultaneously affected by the same passionate impulses. There is no more tragic or heroic picture in history than that of Sir Edward Grey pleading for time in July, 1914. If Russia, Germany, and Austria would only wait a formula could be found, but none of them could wait or would wait, and so afford their adversaries the immense advantage which a single day of mobilization would give. It is in a world thus changed that America must live and play her part as a nation, a world of which the Constitution framers did not dream when they considered the treaty-making power solely from the point of view to its effect upon the dominance in our own government of either the executive or the legislative branch. Diplomacy in their day not only dealt more at leisure, but it dealt with more localized interests and the consequences of its actions were infinitely less tragic.

George Washington counselled America against permanent alliances—Thomas Jefferson against entangling foreign alliances. Both were right. Both sought to warn us from becoming a partner on one side or the other, of unstable balances of power and constant participants in quarrels, local in origin and foreign to our interests. But the balance-of-power theory is as dead as Tiglath-Pileser. The modern world cannot endure perpetual unstable equilibrium. America must so enlarge and expand her constitutional adequacy as to enable her to play a part in a concert of nations which will give her a voice in the expression of the common interest in peace against the disposition of a nation or group of nations again to set the world in flames. Isolation was both possible and wise in 1789. It is neither possible nor wise in 1925. If another world war is permitted to occur, we must either run with the mob or be run over by it.

Fortunately, the strength and genius of America enables her to play her part, when she will, with measureless benefit alike to herself and the rest of the world. Our traditional detachment, our economic sufficiency and supremacy, that enlightenment of our people which enables them to see their greatest selfish advantage in unselfish service to the common cause of mankind, give us leadership and power which we dare not leave unused. And so., by one means or another, the power of public discussion must again react upon the fixed ideas of constitutional limitation. The Darwinian theory must win a new triumph over the checks and balances of the Newtonian philosophy, and America must become chief and leader among the moral forces of the modern world, in the effort to concert the aggregate conscience and intelligence of men to forestall and prevent the catastrophe of unrestrained national or racial or religious aggression-John Fiske was once invited to deliver some lectures in London. He chose to present his view of American political ideals and in three lectures he set forth what he regarded as the three great contributions of America to civilization— the first, the town-meeting, which afforded the opportunity for the formation and expression of matured community sentiment; the second, the idea of a federal union which preserved local self-government and committed to a common government the control and pursuit of common interests; and third, an application of the principle of the federal union into what he called the “manifest destiny of mankind,” which was to be an extension of the idea of the federal union into the international affairs of the modern world. These lectures were delivered in 1879. The swift evolution of circumstances and the logic of events have brought us to the place where duty compels us to fulfill this manifest destiny, and the Constitution which the fathers wisely made flexible and hospitable to progress, will still be the guaranty of our liberty, as we emerge out of our colonial isolation into the moral leadership of mankind and take into the councils of federated nations of the earth those principles of justice and co-operation and friendliness, which will assure peace and permit even greater progress than the twentieth century has seen.


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