Federalist Papers Summary 75
The Federalist Essays Summary No 75: Alexander Hamilton March 26, 1788
The President is to have power “by and with the advice and consent of the senate to make treaties provided two-thirds of the senators present concur”. Questions were raised by skeptics asking why not just the president, or why not just the senate, why was the house not included, and why only those members present and not the entire senate? This paper answers those questions.
The paper begins with an interesting discussion of what the powers of the senate and of the president are and why neither by themselves are adequate for making treaties but in combination they are. “The essence of the legislative authority is to enact laws or in other words to prescribe rules for the regulation of the society. While the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate.” This last sentence stated by Hamilton is the total function of the president, enforce laws made by congress and defend the country. It is not to make laws regulating society using agencies such as Health and Human services or the EPA. Getting back to the subject, treaties do not fall completely under either function for they are not laws from a sovereign on subjects but contracts between sovereigns and they are not to be executed using the common strength. However the president is the most fit for foreign negotiations and the treaties must be operated as laws so it is appropriate to include both in the power to make treaties.
A president acting alone and soon to be out of office and of slender means might be subject to monetary influence from foreign powers. Human history suggests it would not be wise to entrust so delicate and momentous an intercourse with the rest of the world to the sole disposal of the chief magistrate. To have entrusted the treaty making power to the senate alone would have deprived it of the benefits of the constitutional agency of the president in the conduct of foreign negotiations. The security of the people is best served by the combination of the senate and the president.
Why were the house members not included? The number of members of the house and the short duration of elected terms do not permit the house to be a part of the process. Negotiating a treaty requires “comprehensive knowledge of foreign politics, a steady and systematic adherence to the same views, a nice and uniform sensibility to national character, decisions, secrecy and dispatch”, none of which would be present in a body with so great a number.
The final issue is why a vote of two thirds of those present rather than of the entire senate? This comes down to political gamesmanship where if two thirds of the entire senate had to approve then by planned absenteeism the vote at times would requite a unanimous result. History, including that of the Articles of Confederacy, has shown that a unanimous requirement is a history of “impotence, perplexity and disorder”. Further the requirement based on only those present will likely increase the attendance so that all interested can contribute to the negotiation and voting and there will be no advantage in being absent.
Federalist Papers Summary 75 Written by Donald Mellon