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Respective Roles of Senate and President in the Making and Abrogation of Treaties—The Original Intent of the Framers of the Constitution Historically Examined

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Respective Roles of Senate and President in the Making and Abrogation of Treaties—The Original Intent of the Framers of the Constitution Historically Examined Washington Law Review Volume 55 Number 1 12-1-1979 Respective Roles of Senate and President in the Making and Abrogation of Treaties—The Original Intent of the Framers of the Constitution Historically Examined Arthur Bestor Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr Part of the International Law Commons Recommended Citation Arthur Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties—The Original Intent of the Framers of the Constitution Historically Examined, 55 Wash. L. Rev. 1 (1979). Available at: https://digitalcommons.law.uw.edu/wlr/vol55/iss1/2 This Article is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact [email protected]. RESPECTIVE ROLES OF SENATE AND PRESIDENT IN THE MAKING AND ABROGATION OF TREATIES-THE ORIGINAL INTENT OF THE FRAMERS OF THE CONSTITUTION HISTORICALLY EXAMINED Arthur Bestor* * Professor Emeritus of History, University of Washington, Ph.B., Yale University, 1930, Ph.D., 1938; M.A., Oxford University, 1956; LL.D., Lincoln University, 1959. On aspects of the subjects discussed in the present article, Professor Bestor has testified by invita- tion to the Senate Foreign Relations Committee (July 21, 1976), and the House Subcommittee on International Security (June 23, 1976). An earlier version of part II of the present article was printed in 125 CONG. REc. S 1607-10 (daily ed. Feb. 21, 1979), and reprinted in Treaty Termination:Hearings on S. Res. 15, Resolution Con- cerning Mutual Defense Treaties before the Senate Comm. on Foreign Relations, 96th Cong., 1st Sess. 25 (1979). The author wishes to acknowledge with gratitude the financial assistance of the Graduate School Research Fund (Agnes Anderson Fund) of the University of Washington in the preparation of this article. Washington Law Review Vol. 55:1, 1979 INTRODUCTION . ......................... 4 A. Recent Developments ....... ....................... 4 B. Scope of the PresentStudy ....... .................... 15 II. CONSTITUTIONAL ANALOGIES: ALTERATION OF THE CONSTITUTION, REPEAL OF STATUTES, REMOVAL FROM OFFICE ....... ..................... 17 A. The Authority to Negate a PreviousAction .... ............. 17 1. Alteration of the Constitution Itself ..... ............... 18 2. Repeal of Statutes ....... ....................... 19 3. Removals from Office ....... ..................... 21 a. The Judiciary ........ ....................... 21 b. Elected Officers ........ ...................... 21 c. Appointed Officials in the Executive Branch ... ......... 22 B. The Appointing Power in the Constitutional Convention ......... ........................... 23 C. The Appointing and Removing Power in the First Congress ......... ............................ 24 D. The Rationale Behind the President'sPower ofRemoval ......... ............................ 27 E. The Dismissal Power and the Power to Terminate Treaties:An UntenableAnalogy ...... ................. 28 III. THE CONCEPT OF EXECUTIVE POWER ................ 30 A. Foreign Policy Viewed as Inherently an Executive Prerogative ........ ...................... 30 B. Classification and Distribution of Powers in the Constitution ........ ........................ 33 C. The Principleof Enumeration ...... ................... 34 D. Distributionof Powers by Function Rather than Subject ......... ........................... 36 E. HistoricalDevelopment of Ideas on the Classification andDistribution of Powers ....... .................... 38 F. Locke and Montesquieu ....... ...................... 39 G. Constitutional Definitions of Legislative, Executive, andJudicialPower ........ ........................ 44 IV. ANTECEDENTS OF THE CONSTITUTION: EXPERIENCE UNDER THE ARTICLES OF CONFEDERATION ........ ......................... 46 A. Franklin'sProposalfor Confederation, 1775 .... ........... 46- B. Constitution Making in the States ..... ................. 47 C. The Articles of Confederation ...... ................... 49 D. Executive Committees of Congress Underthe Confederation ....... ..................... 52 E. Creationof a Department of ForeignAffairs .... ............ 56 F. The Crisis over Negotiations with Spain, 1786 .... ........... 60 G. John Jay's Perspective on ConstitutionalProblems Relating to ForeignAffairs ....... .................... 68 H. Pre-ConventionIdeas: A Summary ...... ................ 72 Treatymaking: The Framers' Original Intent V. THE INITIAL MONTHS OF THE CONSTITUTIONAL CONVENTION, 1787 ........................ A. The Monarchical Tradition in the Conduct of Foreign Affairs .... .......................... B. Refusal to Treat the Making of War and Peace as Executive Prerogatives .................... 79 C. Work of the Committee of Detail ................. 82 VI. THE DRAFT OF THE COMMITTEE OF DETAIL UNDER DISCUSSION ...... ........................ 88 A. Powers Involved in the Making of War .............. 89 B. Issues Connected with the Treaty Power .................. 91 1. Objections to the Senate as the Exclusive Treatymaking Authority ..... .................... 93 2. A Two-Thirds Rule for Treaties ................ 97 3. The Balancingof Sectional Economic Interests ........... 98 4. Earliest Discussions of the Treaty Power on the Floorof the Convention .... ................. 101 VII. THE CRUCIAL DECISIONS ON THE TREATY POWER .......... ............................... 106 A. The Debate of the 23d ofAugust 1787 .... ............... 107 B. Digression on the Connection Between the Power to Instruct Negotiators and the Power to Ratify Their Handiwork ....... .................... 110 C. Work of the Committee on PostponedParts .... ............ 113 1. Changesin the Appointments Provision .... ............ 115 2. Changes in the Treatymaking Provision .... ............ 117 D. CompromisesRelating to the Election of the President .......... 120 E. The Debateof the 7th and 8th ofSeptember 1787 .... ......... 123 F. The Treaty Clause in FinalForm ..... ................. 131 VIII. THE INTERPRETATION OF THE TREATY CLAUSE BY JOHN JAY, SECRETARY FOR FOREIGN AFFAIRS, 1788 ..... .................... ..... 132 Washington Law Review Vol. 55:1. 1979 RESPECTIVE ROLES OF SENATE AND PRESIDENT IN THE MAKING AND ABROGATION OF TREATIES-THE ORIGINAL INTENT OF THE FRAMERS OF THE CONSTITUTION HISTORICALLY EXAMINED Arthur Bestor I. INTRODUCTION The Constitution of the United States provides that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." It decrees, moreover, that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.' '2 A. Recent Developments On the 2d of December 1954 the United States signed a Mutual De- fense Treaty with the Republic of China (in other words, with the gov- ernment that claimed to be the legal sovereign of the whole of China, though in fact governing only the island of Taiwan and certain adjacent islands). On the 9th of February 1955 the Senate adopted by a vote of sixty-five yeas to six nays (with twenty-five Senators not voting) a reso- lution in customary form reading: "Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of. .the Mutual Defense Treaty between the United States of America and the Republic of China, signed at Washington on Decem- ber 2, 1954.'' 3 On the 3d of March 1955 ratifications were exchanged at Taipei and the treaty immediately entered into force. On the 1st of April 1955 the President proclaimed the treaty as part of the law of the land. The first paragraph of the fifth article of the treaty declared: "Each Party recognizes that an armed attack in the West Pacific Area directed against the territories of either of the Parties would be dangerous to its 1. U.S. CONST. art. II, § 2, cf. 2. 2. Id. art. VI, cl.2. 3. 101 CoNG. REC. 1415 (1955). Treatymaking: The Framers' Original Intent own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes." 4 The tenth and final article read as follows: "This Treaty shall remain in force indefin- itely. Either Party may terminate it one year after notice has been given 5 to the other Party.' The International Security Assistance Act of 1978, which became law with President Carter's signature on the 26th of September 1978, referred to the twenty-four years of faithful performance by the Republic of China of its obligations under the treaty, and went on to make the following declaration: "It is the sense of the Congress that there should be prior consultation between the Congress and the executive branch on any pro- posed policy changes affecting the continuation in force of the Mutual Defense Treaty of 1954.''6 Somewhat less than twelve weeks later, on the 15th of December 1978, President Carter read to the nation over television and radio a joint communique announcing the establishment of diplomatic relations be- tween the United States and the People's Republic of China (often re- ferred to as "mainland" China), recognizing the latter as "the sole legal Government of China," and announcing that the United States "ac- knowledges the Chinese position that there is but one China
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