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The Federalist Papers: No. 64

On this day in 1788, Federalist Paper No. 64 is published. John Jay returns as “Publius” for one final essay. He discusses the role of the Senate in the making of treaties: The President has the power to make treaties, but two-thirds of Senators must concur.

Jay notes the difficulties associated with making treaties: “The power of making treaties,” he writes, “is an important one . . . and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good.”

He believes that the combination of presidential action and senate concurrence works, in part because of the manner in which those officials are elected. He clearly foresees wise and virtuous Presidents and Senators being elected. Hmmm. Of course, his idea of those elections is not what we have experienced in practice. The President, Jay says, will be chosen by “select bodies of electors, to be deputed by the people for that express purpose.” Presidential electors will direct their votes “to those men only who have become the most distinguished by their abilities and virtue.”

Electors who are expected to independently deliberate? For the record, Jay’s expectations here were not universally shared. Other Founders did not necessarily have the same expectation of independence among presidential electors! And few of us really want electors to act independently today, either.

Jay also expects that Senators will be chosen for their “abilities and virtue” by the state legislatures. Since passage of the 17th Amendment, that idea has gone completely out the window, too.

Moreover, Jay believes there are benefits to be had in entrusting part of the treaty-making process to a body that does not turn over frequently. No more than 1/3 of the body is replaced in any given election. These longer tenures allow them to “continue in place a sufficient time to become perfectly acquainted with our national concerns.”

Jay argues that the split responsibility between President and Senate has another advantage: In some situations, “perfect SECRECY and immediate DESPATCH” are necessary. Certain business must be handled quickly. Other business might be helped when a foreign nation can “rely on the secrecy of the President,” whereas it “would not confide in that of the Senate, and still less in that of a large popular Assembly.” The ability of the President to initially make the treaty, alone, allows him to “manage the business of intelligence in such a manner as prudence may suggest.”

Finally, Jay is not worried that a minority of states will be oppressed by this measure. After all, “[s]tates are equally represented in the Senate,” and the Senate will remember that “the good of the whole can only be promoted by advancing the good of each of the parts.” Again, he seems to view a Senate in which wise men are showing respect to each other and “they will all have an equal degree of influence in that body, especially while they continue to be careful in appointing proper persons, and to insist on their punctual attendance.”

Oh, that we lived in a world where “careful” appointment and “punctual attendance” earned a Senator respect and the ability to influence legislation/treaties!

Jay does not believe corruption is a real problem. “He must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained.”

I wonder what he would say to so much of this today.



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