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tries, Mr. Law responded, "Oh, no, I cannot
say that. The treaty will presumably, after
it has been arranged by the Allies, be signed
by the enemy countries."

In this the contemporary British practice
indicates an approximation to our constitu-
tional provision by admitting the legislative
body to some ultimate cooperation in deter-
mining what the terms of a treaty shall be;
but it has not reached the stage to which the
framers of our Constitution had arrived in
the beginning by authorizing the advice and
consent of the Senate. If, however, action
by the Senate can be had only after a treaty
is signed, and then only to accept or reject
it, our procedure will have receded toward
the conception of absolutism as much as the
British has advanced toward parliamentary
representation in the treaty-making power.

There is another important difference be-
tween the American and the British concep-
tion of the treaty-making power. Under the
American Constitution a treaty becomes the
"supreme law of the land," but only in so


far as it is of a nature to become a law. As
a contract it is not open to judicial interpre-
tation. From that point of view it belongs
exclusively to the political department of the
Government. When a treaty is self -execut-
ing, that is, when it does not require supple-
mentary legislation, it becomes a part of the
law of the land, and may be treated as a stat-
ute. As Chief Justice Marshall declared,
"When the terms of the stipulation import
a contract when either of the parties agrees
to perform a particular act the treaty ad-
dresses itself to the political, not the judicial
department; and the Legislature must exe-
cute the contract before it can become a rule
for the court."

In England a treaty does not become the
law of the land, and care has to be taken that
its stipulations are not contrary to the law;
or, if they are so, that the law be amended
so that the law and the treaty shall agree.
Where the terms of the treaty involve the
payment of money, for example, the money
is not directly promised, since Parliament
alone has the right to appropriate it and the


treaty reads: "His Majesty undertakes to
recommend to His Parliament to vote a sum
of money." Thus, it is held, no breach of
the treaty would result if Parliament should
fail to comply with the recommendation.

The question naturally arises Do the
grants of authority contained in the Consti-
tution of the United States authorize the
treaty-making power vested in the Presi-
dent, "by and with the advice and consent of
the Senate," to enter into every conceivable
international arrangement?

It would appear from the fact that all the
power possessed by the President and Sen-
ate is delegated power, and not power inher-
ent in these officers, that it is limited not only
by the terms of its delegation that is, to be
exercised in conjunction but by the pur-
poses for which it is delegated. It cannot,
therefore, be maintained that, merely because
the United States is classed as a "sovereign
nation," the Government, or any part of it,
can therefore perform a sovereign act be-
yond the scope of the purposes for which it
was created, for although the nation is sov-


ereign, the Government is not. Complete
sovereignty resides in the people as a whole,
and not in any or all of the public officers.

That this is the correct interpretation of
delegated authority under the Constitution
is evident from the procedure found neces-
sary for the extension of Congressional'
power. The Constitution originally quali-
fied the conditions under which direct taxes
could be laid. It was necessary to apportion
them among the several States according to
population. They could not under the Con-
stitution be laid in any other way than that
specified, until the power to do so was spe-
cifically granted by an amendment.

The treaty-making power, as stated in Ar-
ticle II, is not specifically restricted in the
terms of the grant, but there is an implied
restriction in the purposes for which the Con-
stitution is framed; for, except as distinctly
delegated, all sovereign power is retained
by the States and the people. The purposes
for which the "more perfect Union" was
formed by "the People" are: "to establish
justice, insure domestic tranquillity, provide


for the common defense, promote the gen-
eral welfare, and secure the blessings of lib-
erty to ourselves and our posterity." (Pre-

All these purposes relate exclusively to
the interests of the people of the United
States. There is no constitutional provision
delegating authority to any part of the Gov-
ernment for any other purposes. If any
other purpose had been contemplated, it
would have been expressed. There is here
no appended et cetera. Indeed, the last
clause in this Preamble may be regarded as
a perfect summary of all that has preceded,
for all are involved in it, namely, "to secure
the blessings of liberty to ourselves and our

For the "common defense," where that is
the obvious purpose, alliances with other
Powers may, undoubtedly, be made ; but it is
not apparent that these could be formed for
other purposes without exceeding the inten-
tions of the Constitution.

On the other hand, it is evident that no
foreign engagements were contemplated, or


could be regarded as authorized, which in
any degree tended to defeat or destroy the
affirmative purposes named in the Preamble.
Especially might any treaty be regarded as
ultra vires, and even violative of the Consti-
tution, if its consequences were to disturb do-
mestic tranquillity, sacrifice the general wel-
fare, or deny the blessings of liberty by im-
posing on the population, in the interest of
a foreign country, any such burden or de-
privation as might arouse a spirit of domes-
tic revolt or unrest, except as action might
be rendered necessary for the common de-
fense of the people of this country.

An equally peremptory limitation upon
the treaty-making power is imposed by the
distribution of authority among the different
agents of the Government. A treaty is of
no value unless it can be executed. The Pres-
ident, "by and with the advice and consent
of the Senate," can make many kinds of
promises which they would not have the
power to fulfil.

It is a part of the theory of our Constitu-
tion that there is safety in the distribution


of power. In general, every power of govern-
ment, the legislative, the judisial, and the ex-
ecutive, is to some extent distributed between
the Federal Government and the States.
In the treaty-making power the States have
no part; but, undoubtedly, some of their
rights are reserved. As Mr. Elihu Root has
said: "The treaty-making power is not dis-
tributed ; it is all vested in the National Gov-
ernment." This involves an immense re-
sponsibility. The President and the Senate
act for every citizen throughout the whole
country, and if they should pledge the con-
trol of the war power to other nations, or in-
volve it in a mechanism that would automati-
cally by prescription draw this nation into
foreign wars, their action would affect the
fortune and the life of every citizen in a seri-
ous manner.

Does any thoughtful person presume to
say that the power to do this is an unlim-
ited power? that less than a hundred men
are wholly uncontrolled by any legal obliga-
tion, and may negotiate and conclude under
this treaty-making power any engagement


they may individually please to incur for
their fellow-citizens, and for all time?

"It is, of course, conceivable," writes Mr.
Root, "that, under pretense of exercising the
treaty-making power, the President and
Senate might attempt to make provisions
regarding matters which are not proper sub-
jects of international agreement, and which
would be only a colorable not a real ex-
ercise of the treaty-making power." There
are then matters which are "not proper sub-
jects of international agreement"; but in
what manner can we determine what is a
"real" and what is only a "colorable" exer-
cise of that power, if not by the purposes for
which the "more perfect Union" was formed
and the restraints created by the distribution
of power among the different organs of the

In most matters the distribution of power
is clear and specific; but in the case of the
treaty-making power the division between
the President and the Senate has given rise
to controversy. The evident intention of the
Constitution is that the President and the


Senate should cooperate in the making of
treaties, but the precise manner in which they
are to proceed is not defined. Such defini-
tion was clearly thought unnecessary, for it
could reasonably be presupposed that they
would work together in confidence, in a spirit
of mutual respect, and with unfailing cour-
tesy and consideration.

No one has ever doubted that the Presi-
dent is the designated medium of communi-
cation with foreign governments, and there-
fore in direct control of the process of nego-
tiation. It falls to him to direct the immediate
policy of the country in foreign affairs, and
to instruct his diplomatic agents. He is,
therefore, in a position to use his own judg-
ment as to the extent and the manner of tak-
ing the "advice" and seeking the "consent"
of the Senate. On the other hand, he cannot
conclude any treaty without the "consent" of
the Senate. Either can completely block the
intentions of the other, but neither can force
the other; and herein lies the wisdom of the
arrangement, for while the President has the
initiative and can begin and carry on nego-


tiations on any subject and with any country,
the utility and propriety of his agreements
are subject to the judgment of a large body
of experienced men, representing varied in-
terests and points of view, and he must con-
vince two-thirds of them that what he pro-
poses is both constitutional and expedient
before he can accomplish any final result.

The superior power of the President lies in
the fact that he can create conditions which
may embarrass the free judgment of his col-
leagues in exercising the treaty-making
power. While they are of various opinions,
he can shape circumstances in such a manner
as suddenly to confront them with a choice
between alternatives neither of which is ac-
ceptable to them.

It has been said that the Constitution does
not require the President to accept or fol-
low the advice of the Senate; but, on the
other hand, it does not require the Senate to
approve what the President may finally pre-
sent to it for ratification. If an impasse is
created intentionally, the fault lies with him
who has intentionally created it ; for it is not


legally in the power of either participant in
the process to destroy the freedom of judg-
ment of the other. The whole purpose of the
partnership is that nothing shall be done to
which both parties do not freely agree. That
is the reason why the making of treaties was
not left to the President alone, or assigned
to the Congress as under the Confederation.
Its safety lies in the fact that it is a joint

Applying the principle broadly, the con-
tention that one department of the Govern-
ment may in any way coerce another is a
repudiation of the very purpose of the divi-
sion of power, and would result in the de-
struction of that freedom under law which
the Constitution aims to establish. If such
an attempt were for any reason successful,
it would result in the establishing of an au-
tocratic form of government. Absolutism,
which the Constitution was intended to pre-
vent, might thus creep in through the usur-
pation of power by a single department, or
even by a single officer of the Government.
There could be no greater offense against the


Constitution than this, and public opinion
should unite in condemning even the sugges-
tion of it.

A limitation of equal importance upon the
treaty-making power resulting from the dis-
tribution of authority arises from the de-
pendence upon Congress as a whole to pro-
vide the means for executing the obligations
of a treaty. The powers of Congress are
very precisely enumerated in the Constitu-
tion (Article I, Sections 7 and 8). In any
case where war or administration is involved,
there can be no execution of a treaty without
the action of Congress, which alone has
power "to lay and collect taxes, duties, im-
ports and excises, to pay the debts and pro-
vide for the general welfare of the United
States; to define and punish piracies and
felonies committed on the high seas, and of-
fenses against the law of nations; to declare
war, grant letters of marque and reprisal,
and make rules concerning captures on land
and water; to raise and support armies, but
no appropriation of money to that use shall
be for a longer term than two years; to pro-


vide and maintain a navy ; to make rules for
the government and regulation of the land
and naval forces; to provide for calling for
the militia to execute the laws of the Union,
suppress insurrections, and repel invasions."
Further, "all bills for the raising of revenue
shall originate in the House of Representa-
tives; but the Senate may propose or concur
with amendments as on other bills/'

Practically here is a formidable restraint
upon the effect of the treaty-making power.
The authority of Congress in all these mat-
ters cannot be denied, limited, or transferred
to others by the President and Senate of the
United States. If any exercise of these
powers is necessary to execute the obliga-
tions of a treaty, it depends on the will of
Congress whether or not they will be exer-

It is undoubtedly within the jurisdiction
of Congress itself to determine the question
of its duties and its powers in this respect.
There is in the Constitution no provision for
either executive or judicial determination in
this regard. If, therefore, Congress a body


subject to frequent change considers that
a treaty which it is asked to execute by sup-
plementary legislation, such as a declaration
of war, the raising of an army, or an appro-
priation of money to be used for the main-
tenance of an expeditionary force, exceeds
the limits of engagement authorized by the
Constitution, there is no power in the remain-
der of the Government to compel its action.

No treaty relation, therefore, should ever
be entered into which Congress would have
good cause for declining to support.

For the foregoing reasons, while it is con-
ceded that the treaty-making power is not
specifically limited, from the beginning of
our Government it has always been held that
it is not unlimited.

When the adoption of the Constitution
was under discussion, in answer to a question
regarding the extent of the power to make
treaties, Madison said:

"In the existing confederacy, Congress is

authorized indefinitely to make treaties.

Does it follow because the power is given to

Congress that it is absolute and unlimited?



... I do not believe that power is given to
the President and Senate to dismember the
empire or to alienate any great essential
right. I do not think the whole legislative
authority have this power. The exercise of
the power must be consistent with the object
of the delegation."

At a later period, John C. Calhoun de-
clared: "Although the treaty-making power
is exclusively vested, and without enumera-
tion or specification, in the Government of
the United States, it is nevertheless subject
to several important limitations. It is, in the
first place, strictly limited to questions inter
alios; that is, to questions between us and
foreign powers which require negotiation to
adjust them. All such clearly appertain to
it. But to extend it beyond these, be the
pretext what it may, would be to extend it
beyond the allotted sphere, and thus a pal-
pable violation of the Constitution. ... It
can enter into no stipulation calculated to
change the character of the Government; or
to do that which can only be done by the Con-
stitution-making power; or which is incon-


sistent with the nature and structure of the
Government, or the objects for which it was

"Let it be supposed," said the elder St.
George Tucker, in his edition of Blackstone,
"that the President and Senate should stip-
ulate 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 constitution-
al 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?" And as John
Randolph Tucker said, in 1882 : "The ques-
tion is not whether Congress can annul a
valid treaty, but is a treaty valid and bind-
ing on the United States which divests Con-
gress of its constitutional functions without
its sanction and consent?"

Very few treaties, and none relating to
war, can operate proprio vigore. "Suppose,"


Tucker continues, "a treaty with Great Brit-
ain should provide that the Government of
the United States should never raise armies,
or provide a navy" or, it might be added,
should raise armies or provide a navy of only
a given size "can it be held that the Presi-
dent and Senate may by treaty thus divest
Congress of its constitutional duty to do
these things? If so, then the treaty-making
power may amend, alter, and destroy the
Constitution, and hold us bound to submit
to this claim of a foreign power conferred
and sanctioned by treaty. This cannot be
true. It is absurd. These express powers
to Congress are limitations on the general
power to make treaties." And this learned
jurist concludes: "From this review I feel
justified in holding that if any treaty seeks
to bind the United States to a foreign coun-
try in respect of the functional powers of
Congress, we are not open to a charge of bad
faith if Congress refuses to sanction a divest-
iture of its constitutional authority to deal
with any subject entrusted to it by specifi-


cally granted powers in the Constitution of
the United States."

We must not permit ourselves to overlook
the fact that ours is a popular government,
in which the will of the people is a constant
factor in shaping public policy. This will
is revised at short intervals in the choice of
the House of Representatives, elected every
two years. It is expressly prescribed in the
Constitution that "no appropriation of
money for military purposes shall be for a
period longer than two years." This limita-
tion profoundly affects the probability of the
execution of any military obligations with
other nations in the form of treaties; for,
if it should be the popular will not to en-
force the conscription of armies for the pur-
pose of interfering in matters which the peo-
ple considered did not concern them, it is
almost certain that Congress would not re-
gard itself bound by any treaty, especially
one of long standing, to supply the means
for carrying it into effect against the popu-
lar conviction regarding the national duty.

There is force, no doubt, in the contention


that the Congress of the United States is
under a moral obligation to maintain the
honor of the nation, which implies the strict
fulfilment of all pledges made by the treaty-
making power ; but there is even more weight
in the affirmation that the treaty-making
power is under a moral obligation not to
pledge the honor of the nation in doubtful
conditions, as well as under a legal obligation
not to destroy the freedom of a coordinate
branch of the Government by pledging it to
a performance beyond the intentions of the
Constitution, from which all its authority is
derived. A treaty that should do that would,
without doubt, be ultra vires; and, therefore,
from the point of view of the Congress, null
and void from the beginning.

In the period of our national development
when there was still divergence of opinion
regarding the relation of the Federal Gov-
ernment to the States, two schools arose as
to the nature and extent of the powers dele-
gated by the Constitution. The devotees of
State Rights were disposed to seek limita-
tions upon all the Federal powers. The ad-


Vocates of strong central authority, on the
contrary, laid emphasis on the necessity of
an unlimited authority at least in the treaty-
making power, resulting from the sovereign-
ty of the nation, as contrasted with the pow-
ers of the States. That debate is now closed.
The question that is at present pressed upon
our attention is of a character wholly new,
and not considered in the learned works of
our great standard authorities on the treaty-
making power, such as Butler, Crandall and
Devlin. A new situation has been thrust
upon us by the proposal to create a League
of Nations, involving responsibilities never
before imagined to be possible.

The position reached before this new pro-
posal is well summed up by Devlin when he
says: "The treaty power is in a measure in-
cidental to the war power, and under the ne-
cessity for national preservation, or even for
national benefit, many things can be done
that are not explicitly enumerated in the
Constitution." This is true, and it has been
well not to lose sight of the fact that the
United States is a sovereign nation, and may


under its sovereign power do what is really
necessary for the national interests. And yet,
as this writer continues, "It cannot be said
that the treaty-making power is unlimited.
What the limits are, no one can correctly
state, and it is possible that no treaty w r ill
ever be made in which the power to make the
treaty will be seriously questioned. But if
there ever appears a clear case in which a
treaty conflicts with the Constitution, then
either the Constitution or the treaty must
govern, and there can be little doubt that in
such a case the treaty would yield to the Con-

The immediate question is, Has such a
case now arisen? If a super-government is
about to be created, to which the United
States is asked to make itself subject, then
such a case has arisen ; and it is clear that the
Constitution forbids the President and the
Senate to make a treaty involving such sub-
jection. They do not possess the legal power
to enter into such an engagement. If, on
the other hand, the Constitution of a League
of Nations is nothing more than an under-


standing between the signatories to act to-
gether in their own way, and according to
their own will, to accomplish certain common
objects, and the Government of the United
States is not in any way subordinated to a
super-government, there may be a perfect
right to conclude such a treaty.

There remains, however, another question.
The Constitution of a League of Nations
may be so construed as to leave the Govern-
ment of the United States free to act or not
to act upon the recommendations of the
Council, and even to prevent by the opposi-
tion of the representative of a single Power
making any recommendations or decisions
of any kind. In that case it seems futile
to pretend that it is in any substantial sense
a "League," or even an efficient "Entente."
But, unless it is further modified, it does
create an imperium in which all the signa-
tories have a part; for it proposes to coerce
sovereign States which are not members of
the League, to abolish existing laws of neu-
trality, and absolutely to govern through its
mandataries, under its own "Acts and Char-


ters," dependent peoples placed under its
sovereign authority.

Should the United States become a signa-
tory of such a treaty, even though it refused
to become subordinate to this new govern-
ment by service as a mandatary, it would still
constitute a part of this new imperium. Its

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Online LibraryDavid Jayne HillPresent problems in foreign policy → online text (page 8 of 17)