Article 2, Section 2, Clauses 2 and 3

Document 24

St. George Tucker, Blackstone's Commentaries 1:App. 332--36, 338--40

Treaties, as defined by Puffendorf, are certain agreements made by sovereigns, between one another, of great use both in war, and peace; of these, there are two kinds; the one such as reinforce the observance of what by the law of nature we were before obliged to; as the mutual exercise of civility, and humanity, or the prevention of injuries on either side; the second, such as add some new engagement to the duties of natural law; or at least determine what was before too general and indefinite in the same, to some thing particular, and precise. Of those which add some new engagement to those duties which natural law imposes upon all nations, the most usual relate to, or in their operation may affect, the sovereignty of the state; the unity of its parts, it's territory, or other property; it's commerce with foreign nations, and vice versa; the mutual privileges and immunities of the citizens, or subjects of the contracting powers, or the mutual aid of the contracting nations, in case of an attack, or hostility, from any other quarter. To all these objects, if there be nothing in the fundamental laws of the state which contradicts it, the power of making treaties extends, and is vested in the conductors of states, according to the opinion of Vattel.

In our constitution, there is no restriction as to the subjects of treaties, unless perhaps the guarantee of a republican form of government, and of protection from invasion, contained in the fourth article, may be construed to impose such a restriction, in behalf of the several states, against the dismemberment of the federal republic. But whether this restriction may extend to prevent the alienation, by cession, of the western territory, not being a part of any state, may be somewhat more doubtful. The act of cession from Virginia militates, expressly, against such an alienation of that part of the western territory which was ceded by this state. Nevertheless, it is said to have been in contemplation soon after the establishment of the federal government, to cede the right of pre-emption to the lands in that territory to the Indians, who were then supposed to be in treaty for the same with the crown of Great Britain. The president, who had not authorised any such article, and who is said to have disapproved of it, in submitting the treaty to the consideration of the senate, called their attention particularly to that part of it; in consequence of which it was rejected, though warmly supported in the senate, as has been said. If the power of making such a dismemberment be questionable at any rate, it is much more so, when it is recollected, that the constitution seems to have vested congress, collectively, and not any one or two branches of it only, with the power to dispose of that territory. The effect of this extraordinary treaty, if it had been ratified by the senate and the president, may easily be conceived. Great Britain, at that time not a little disposed to enmity towards the United States, would no doubt have insisted upon such an acquisition of territory, made under the faith of a treaty between the United States and the Indians; and thus the United States might either have been deprived of their territory by an unconstitutional treaty, or involved in a war for it's preservation, by the proceedings of a body, whose authority does not extend to a final decision upon a question, whether war be necessary and expedient. This shews the collision which may possibly arise between the several branches of the congress, in consequence of this modification of the treaty-making power. For, being entrusted to a branch of the congress only, without the possibility of control or check by the other branch, so far as respects the conclusion and ratification of any treaty whatsoever, it may well happen, at some time or other, that the president and senate may overstep the limits of their just authority, and the house of representatives be so tenacious of their own constitutional rights, as not to yield to the obligations imposed upon them by a treaty, the terms of which they do not approve.

But the senate, in matters of treaty, are not only without control, they may be said also to be without even the least shadow of responsibility in the individuals who compose that body. In England, says judge Blackstone, lest this plenitude of authority should be abused to the detriment of the public, the constitution hath interposed a check by means of parliamentary impeachment, for the punishment of such members as from criminal motives advise or conclude any treaty, which shall afterwards be judged to derogate from the honour and interest of the nation. But where shall we find this responsibility in our constitution? Does it arise from the power of impeachment vested in the house of representatives by the constitution? It has been solemnly decided, that a senator is not a civil officer of the United States, and therefore not liable to impeachment. Even were it otherwise, the power of impeachment would, in the case we are now speaking of, be nugatory, as will presently appear. . . . Does it consist then in the power of impeaching the ambassador, by whom it was concluded, or the president, by whom it has been ratified, both of whom are unquestionably impeachable, I presume? The ambassador is appointed by the president, with the advice and consent of the senate: it may be presumed that his instructions have been submitted to and approved by them, though a different practice is said to have been established. If the treaty be ratified, and the minister be impeached for concluding it, because it is derogatory to the honour, the interest, or perhaps to the sovereignty and independence of the nation, who are to be his judges? The senate by whom it has been approved and ratified. If the president be impeached for giving improper instructions to the ambassador, and for ratifying the treaty concluded by him pursuant to his instructions. who are to be his judges? The senate, to whom the treaty has been submitted, by whom it has been approved, and by whose advice it has been ratified. The constitution requires, that a majority of two-thirds of the senate, at least, must advise the conclusion of a treaty, before it can be ratified by the president; it likewise requires that a majority of two-thirds at least must concur in the judgment in case of conviction. A quorum for the trial upon an impeachment, consequently cannot possibly be formed, without calling in some of those senators to be judges, who had either actually advised or dissented from the ratification of the treaty. Can such judges be deemed impartial? If they can, from which class shall they be chosen; from those who proposed the rejection of the treaty, or from those who advised its final ratification? Sophistry itself might be puzzled by the dilemma.

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But, to return to the treaty-making-power; it appears to be somewhat extraordinary, that that branch of the federal government, who are by the constitution required to concur, in a declaration of war, before any such declaration can be made, should be wholly precluded from voting at all, upon a question of peace. . . . They are judges of the causes of war; of the existence of those causes; of the resources, and ability of the states to prosecute and support a war; of the expediency of applying those resources to the obtaining redress, or satisfaction for the injury received; in short, of every possible circumstance that can induce the nation to incur the hazard, or expence of a war: and yet, if through timidity, venality, or corruption, the president, and two thirds of a majority of the senate can be prevailed upon to relinquish the prosecution of the war, and conclude a treaty, the house of representatives have not power to prevent, or retard the measure; although it should appear to them, that the object for which the war hath been undertaken, hath not been attained, and that it was neither relinquished from necessity, or inability to prosecute it, with effect.

These objections are not intended, to extend to the agency which the president and senate may have, in the formation of a treaty; nor to the principle that treaties with foreign nations should be regarded as a part of the supreme law of the land. . . . The honour and peace of the nation certainly require that it's compacts should be duly observed, and carried into effect with perfect good faith. And though it may be the result of sound discretion to confide the formation of a treaty, in the first instance, to the president and senate, only; yet the safety of the nation seems to require that the final ratification of any compact, which is to form a part of the supreme law of the land, should, as well as other laws of the federal government, depend upon the concurrent approbation of every branch of the congress, before they acquire such a sanction as to become irrevocable, without the consent of a foreign nation; or without hazarding an imputation against the honour and faith of the nation, in the performance of it's contracts.

It may not be improper here to add something on the subject of that part of the constitution, which declares that treaties made by the president and senate shall be a part of the supreme law of the land: acts of congress made pursuant to the powers delegated by the constitution are to be regarded in the same light. What then is the effect of a treaty made by the president and senate, some of the articles of which may contain stipulations on legislative objects, or such as are expressly vested in congress by the constitution, until congress shall make a law carrying them into effect? Is congress bound to carry such stipulations into effect, whether they approve or disapprove of them? Have they no negative, no discretion upon the subject? The answer seems to be, that it is in some respects, an inchoate act. It is the law of the land, and binding upon the nation in all it's parts, except so far as relates to those stipulations. It's final fate, in case of refusal on the part of congress, to carry those stipulations into effect, would depend on the will of the other nation. If they were satisfied that the treaty should subsist, although some of the original conditions should not be fulfilled on our part, the whole, except those stipulations embracing legislative objects, might remain a treaty. But if the other nation chose not to be bound, they would be at liberty to say so, and the treaty would be defeated. And this construction seems to be consonant with that resolution, of the house of representatives, wherein they declare, "That when a treaty stipulates regulations on any of the subjects submitted by the constitution to the power of congress, it must depend for it's execution, as to such stipulations, on a law or laws to be passed by congress; and it is the constitutional right and duty of the house of representatives, in all such cases, to deliberate on the expediency, or inexpediency, of carrying such treaty into effect, and to determine and act thereon, as in their judgment, may be most conducive to the public good. . . . A contrary construction would render the power of the president and senate paramount to that of the whole congress, even upon those subjects upon which every branch of congress is, by the constitution, required to deliberate. Let it be supposed, for example, that the president and senate should stipulate by treaty with any foreign nation, that in case of war between that nation and any other, the United States should immediately declare war against that nation: Can it be supposed that such a treaty would be so far the law of the land, as to take from the house of representatives their constitutional right to deliberate on the expediency or inexpediency of such a declaration of war, and to determine and act thereon, according to their own judgment?

The Founders' Constitution
Volume 4, Article 2, Section 2, Clauses 2 and 3, Document 24
http://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s24.html
The University of Chicago Press

Tucker, St. George. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969.

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