10

Separation of Powers

CHAPTER 10|Document 20

Alexander Hamilton to William Loughton Smith

I observe Madison brings the power of the House of Representatives in the case of the Treaty to this Question Is the Agency of the House of Representatives on this subject deliberative or Executive? On the sophism that this Legislature and each Branch of it is essentially deliberative & consequently must have discretion will he, I presume, maintain the freedom of the House to concur or not.

But this sophism is easily refuted. The Legislature & each branch of it is deliberative but with various restrictions not with unlimited discretion. All the injunctions & restrictions in the constitution for instance abrige its deliberative faculty & leave it quoad hoc merely executive. Thus the Constitution enjoins that there shall be a fixed allowance for the Judges which shall not be diminished. The Legislature cannot therefore deliberate whether they will make a permanent provision & when the allowance is fixed they cannot deliberate whether they will appropriate & pay the money. So far their deliberative faculty is abriged. The mode of raising & appropriating the money only remains matter of deliberation.

So likewise the Constitution says that the President & Senate shall make Treaties & that these Treaties shall be supreme laws. It is a contradiction to call a thing a law which is not binding. It follows that by constitutional injunction the House of Representatives quoad the stipulations of Treaties, as in the case cited respecting the Judges are not deliberative, but merely executive except as to the means of executing.

Any other Doctrine would vest the Legislature & each House with unlimited discretion & destroy the very idea of a Constitution limiting its discretion. The Constitution would at once vanish!

Besides the legal power to refuse the execution of a law is a power to repeal it. Thus the House of Representatives must as to Treaties concenter in itself the whole legislative power & undertake without the senate to repeal a law. For the law is complete by the action of the President & Senate.

Again a Treaty which is a contract between nation & nation abriges even the legislative discretion of the whole legislature by the moral obligation of keeping its faith; a fortiori that of one branch. In theory there is no method by which the obligations of a Treaty can be annulled but by mutual consent of the contracting parties--by ill faith in one of them or by a revolution of Government which is of a nature so to change the condition of parties as to render the Treaty inapplicable.

The Founders' Constitution
Volume 1, Chapter 10, Document 20
http://press-pubs.uchicago.edu/founders/documents/v1ch10s20.html
The University of Chicago Press

The Papers of Alexander Hamilton. Edited by Harold C. Syrett et al. 26 vols. New York and London: Columbia University Press, 1961--79. See also: Federalist