Federalist No.75

The Treaty-Making Power Of The Executive

Wednesday, March 26, 1788

Alexander Hamilton


The treaty-making power of the executive has been mentioned in previous papers. Hamilton begins this paper by outlining the various alternative methods of making and ratifying treaties that have been proposed as part of the criticism of this aspect of the Constitution.


This paper considers why the executive should be involved in the making of treaties, why the executive should not make treaties alone, and the reasons why a two thirds majority of Senators who are present is preferred over the entire Senate in order to ratify treaties.


First, however, Hamilton explains why the Senate and executive being jointly responsible for the making of treaties is not an inappropriate intermixture of powers. He argues that making treaties is neither a role specific to the Senate or executive. It is not a legislative role, since it is not a law that governs the citizens of America (he actually uses the word subject here, which seems out of character for the Federalist Papers, since English citizens are subject to the Crown). Neither are they laws which can be executed, and therefore not specific to the executive branch. Instead, treaties are contracts with other nations derived from obligations of good faith. The executive is merely the most fit agent in those transactions, while the importance of treaties justifies the involvement of the Senate.


This involvement is predicated on the situation of the President, who is elected for only four years and may, after that, return to being a normal citizen. Hamilton argues that an ordinary man in those circumstances, risks being corrupted by foreign nations, subject as he might be if working alone, to temptation and corruption. So, while the role of President is the most logical fit for the purposes of representing the nation, there must also be oversight.


Despite this, Hamilton returns to an argument already raised in previous papers, that the role of President will most likely be filled by the system by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity.


It would be difficult for the Senate to fill the role intended for the President in treaty negotiations. A representative chosen by the Senate would not have the same confidence and respect or be able to act with an equal degree of weight or efficacy when dealing with foreign governments. This situation might put America at a disadvantage in negotiations. This justifies the President’s role, even though the Senate must, in the interests of transparency and oversight, be involved: the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the possession of it by either of them.


Hamilton dismisses the thought that the House of Representatives would be a suitable body to participate in the oversight of foreign treaties. He reasons that the body fluctuates in its membership, is too numerous to be decisive or to keep secrets, and the experience and knowledge of its members in foreign affairs too inconsistent and variable. Added to this would be the inconvenience of convening the House, or keeping the House open for longer periods, and the expense of doing this. At the end of this paper he points out that as America grows and creates more States, this problem would only be exacerbated by a body more numerous than the Senate would be likely to become.


Hamilton’s final main point concerns how the Senate will vote to ratify or reject negotiated treaties. There are basically two options he considers. First, is that a two thirds majority would be required of the whole Senate. At this time there were thirteen States, meaning there would be twenty-six Senators. A two thirds majority would require seventeen votes in favour of a treaty, meaning that at least seventeen Senators would be required to be in attendance for every vote, otherwise a vote could not proceed. The second option was that a two thirds majority be required from those Senators present. So, for example, if sixteen members were present, that would mean a vote of eleven Senators only.


The Constitution was written to favour the second option: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur (Article II, Section 2, Clause 1). Hamilton defends this decision, saying that in other countries where a two-thirds majority of the entire Senate was required, decisions had been delayed, creating a history of impotence, perplexity, and disorder. In the proposed situation, Senators would be motivated to be present and on time for votes, whereas the first option gave no motivation to either be present or on time.


Hamilton also compares the adopted system to the existing rules under the Articles of Confederation, in which each State had one vote, whereas in the new Senate, each State has two representatives, each with an individual vote, thereby making a State’s representation in the matter potentially greater than it currently would have been.


In the end, Hamilton believes that the two thirds majority vote of those present serves the intended purpose of the Constitution, which was to ensure security and that the legislative body maintained oversight in the process of making treaties.

7 December 2019