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“Advice” from the Very Beginning, “Consent” When the End Is Achieved

Published online by Cambridge University Press:  27 February 2017

Arthur Bestor
Arthur Bestor*
Affiliation:
University of Washington (Seattle)
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Extract

The President, says the Constitution of the United States, “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” What working relationship between the President and the Senate was this provision intended to establish in the complex and delicate business of determining the foreign policy of the nation and conducting its foreign relations in accordance with that policy?

Type
History
Information
American Journal of International Law , Volume 83 , Issue 4 , October 1989 , pp. 718 - 727
Copyright
Copyright © American Society of International Law 1989

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References

1 U.S. Const. Art. 2, §2, cl. 2.

2 40 Cong. Rec. 1418 (1906).

3 2 The Records Of The Federal Convention of 1787, at 183 (M. Farrand ed. 1911) [hereinafter Farrand] (Report of the Committee of Detail, Aug. 6, Art. 9, §1).

4 Id. at 392.

5 Id. at 473 (Journal). This committee will hereinafter be referred to as the Committee on Postponed Parts.

6 Id. at 495 (second report of the Committee on Postponed Parts, Sept. 4).

7 From having been Article 9, section 1, it was to become Article 10, section 4.

8 2 Farrand, supra note 3, at 540–41, 547–50.

9 9 James Madison, Papers 385 (R. Rutland ed. 1975) (Madison to Washington, Apr. 16, 1787).

10 1 Farrand, supra note 3, at 21 (Resolution 7).

11 Articles of Confederation and Perpetual Union, Art. 9, para. 1 (1781), in Documents Illustrative of the Formation of the Union of the American States 27, 31 (C. Tansill ed. 1927).

12 1 Farrand, supra note 3, at 64–66 (Madison’s notes).

13 Id. at 73–74 (William Pierce’s notes).

14 Id. at 70 (Rufus King’s notes).

15 Id. at 63–64 (Journal), 67 (Madison’s notes).

16 Id. at 70 (King’s notes).

17 See text infra at note 29.

18 1 Farrand, supra note 3, at 282–93 (Madison’s report of the speech, its correctness vouched for by Hamilton). Cf. id. at 294–304 (extensive reports by Robert Yates and King).

19 Id. at 300 (Yates’s notes).

20 Id. at 289–90, 292 (Madison’s notes).

21 Id. at 292.

22 Id. at 291.

23 Id. at 524 (Journal, July 5); 2 id. at 13–14 (Journal, July 16); id. at 19–20 (Madison’s notes on a meeting of delegates from the larger states on the morning of July 17, “before the hour of the Convention”); id. at 25 (Madison’s notes on the regular session of July 17).

24 The committee was created on July 23, “for the purpose of reporting a Constitution conformably to the Proceedings aforesaid.” Because it was to be a working committee, it was kept small. By a succession of Convention votes, its size was whittled down to five members from the original proposal of one member from each state. 2 id. at 85–87, 117–18, 128, 129–34.

25 See text supra at note 3.

26 1 Farrand, supra note 3, at 422, 426.

27 2 id. at 392–94.

28 Id. at 473.

29 Id. at 495.

30 Id. at 538.

31 Id. at 540, 544–50.

32 Id. at 540–41, 547–49.

33 Id. at 540–41.

34 Id. at 550. This was not quite the end of the revisionary process. On Sept. 8, the Convention appointed a committee of five “to revise the style of and arrange the articles agreed to by the House.” This Committee of Style came up on Sept. 12 with a reworded clause on treaties and appointments, and the Convention added another phrase 3 days later. So far as treaty making was concerned, there were no changes of substance. Id. at 547, 599, 628; U.S. Const. Art. 2, §2, cl. 2.

35 U.S. Const. Art. 2, §3.

36 See generally Bestor, Separation of Powers in the Domain of Foreign Affairs: The Original Intent of the Constitution Historically Examined, 5 Seton Hall L. Rev. 527, 541–43 (1974).

37 Examples from colonial documents are printed in 1 Royal Instructions to British Colonial Governors, 1668–1776, at 45, 46, 82, 88; 2 id. at 696 et passim (L. Labaree ed. 1935).

38 See the constitutions of South Carolina, Mar. 26, 1775 (Arts. 24, 25), in 6 The Federal and State Constitutions 3241, 3246–47 (F. Thorpe ed. 1909); Delaware, Sept. 21, 1776 (Art. 9), in 1 id. at 562, 564; and Maryland, Nov. 11, 1776 (Arts. 33, 48), in 3 id. at 1691,1695, 1699.