Article 2, Section 2, Clauses 2 and 3

Document 50

George Mason to James Monroe

I see by a late Paper, that Gr. Morris is appointed our Minister, to the Court of France; so that, I suppose, the Opposition in the Senate has been outvoted.

I don't think a more injudicious Appointment cou'd have been made. In the present Situation of France, to appoint a Man of his known monarchical Principles has rather the Appearance of Insult, than of Compliment, or Congratulation. And altho' Mr. Morris's Political Creed may not be known generally in France, it must be well [Volume 4, Page 111] known to Mr. de la Fayette, the most influential Character in the Nation. What a Man seems to value himself upon, and glory in, can't long remain a Secret, in a public Character. "Coercion by G------d" is his favourite Maxim in government. And in his place, as a Member of the federal Convention in Philadelphia, I heard him express the following sentiment. "We must have a Monarch sooner or later" (tho' I think his word was a Despot) "and the sooner we take him, while we are able to make a Bargain with him, the better." Is this a Man to represent the United States of America, in a Country, which has just reformed an arbitrary Monarchy into a free government? Such a Character, perhaps, wou'd not have been displeasing at the Court of Petersburg, or Berlin; but is surely very ill suited to that of Paris.

The Question lately agitated in the Senate is a most important one. I am decidedly of opinion, that the Words of the Constitution "He shall nominate, and by & with the Advice and Consent of the Senate, appoint Ambassadors" &c. give the Senate the Power of interfering in every part of the Subject, except the Right of nominating. There is some thing remarkable in the Arangement of the Words "He shall nominate." This gives to the President alone the Right of Nomination. And if the Senate were to refuse their Approbation of the person nominated (which the subsequent Part of the Clause puts in their Power) they wou'd have no Right to nominate another Person; the Right of Nomination being complete in the President. "And by and with the Advice & Consent of the Senate appoint Ambassadors" &c. The Word "Advice" here clearly relates in the Judgment of the Senate on the Expediency or Inexpediency of the Measure, or Appointment; and the Word "Consent" to their Approbation or Disapprobation of the Person nominated; otherwise the word Advice has no Meaning at all--and it is a well known Rule of Construction, that no Clause or Expression shall be deemed superfluous, or nugatory, which is capable of a fair and rational Meaning. The Nomination, of Course, brings the Subject fully under the Consideration of the Senate; who have then a Right to decide upon it's Propriety or Impropriety. The peculiar Character or Predicament of the Senate in the Constitution of the General Government, is a strong Confirmation of this Construction.

The Senate are not the immediate Representatives of the people at large, nor elected by them. They are elected by the Legislatures of the different States, and they represent respectively, the Sovereignty of the separate States, in the general Union. Upon no other Principle can the Equality of Representation, in the larger and smaller States be justified. The Senate act in a diplomatic, as well as a legislative Character; and it is in the former Capacity that they give advice to the President; and partake of some Executive Powers. The Constitution therefore wisely & Properly directs, the Ambassadors &c. shall not be appointed, but with the Advice & Approbation of the States, which form the Union, thro' their Organ, or Representative, the Senate. I wish this important Subject to be fairly discussed, upon it's merits, and decided upon, in the Infancy of the new Government and in the presidentcy of General Washington; who, I am sure, is strongly attach'd to the Rights & Liberty of our country; but we are not sure, that this will be the Case with his Successors.

The Founders' Constitution
Volume 4, Article 2, Section 2, Clauses 2 and 3, Document 50
http://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s50.html
The University of Chicago Press

The Papers of George Mason, 1725--1792. Edited by Robert A. Rutland. 3 vols. Chapel Hill: University of North Carolina Press, 1970.