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The Federalist Papers: No. 75

On this day in 1788, Federalist Paper No. 75 is published. Next up on Publius’s list of presidential powers? The treaty-making power. The Constitution provides that the President can enter into treaties, “by and with the advice and consent of the Senate . . . provided two thirds of the senators present concur.”

Publius notes that some have expressed concern about separation of powers, but he references his earlier arguments about why powers should not be *completely* separate. Checks and balances among the branches is healthy. Moreover, he observes, even if we *were* to try for separation in this area, it is unclear whether the legislative or the executive branch should be held responsible.

The character of treaties is unique. The treaty-making power “relates neither to the execution of the subsisting laws, nor to the enaction of new ones.” Treaties “are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign.”

One alternative would be to leave the power only to the executive, but this would be dangerous. Presidents will be former private citizens who must return to that status as a private citizen. They may be looking to forward to a period of time when they will have less money. Some may not be able to withstand the temptation to “betray the interests of the state to the acquisition of wealth.”

Publius clearly could not foresee a world in which public figures could make so much money off book deals and speeches.

Another alternative, leaving the power only to the Senate, is also too dangerous. “[P]ique or cabal” could influence the proceedings. Moreover, a body such as the Senate cannot expect to “enjoy the confidence and respect of foreign powers in the same degree . . . and, of course, would not be able to act with an equal degree of weight or efficacy.” The President can perform these types of tasks better and more efficiently.

Thus, Publius concludes that the “joint power” enables each branch to bring something to the table. Thus, the country has a “greater prospect of security.”

Next, Publius believes that the House of Representatives cannot help with treaties. Their numbers are too many and the identities of the members will change too often. (Guess he never met some of our professional politicians who stick around for decades at a time!?) Such a body cannot exhibit those qualities needed for the formation of treaties: “Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, SECRECY, and dispatch.”

Finally, Publius addresses the concerns of some that treaties require only two thirds of all Senators PRESENT, instead of two thirds of the total number of Senators. Publius believes that the latter requirement would make it too difficult to get a treaty ratified, particularly given the possibility that all members will not always be in attendance. Moreover, he believes that the constitutional rule will encourage punctual attendance: The proportion needed to ratify a treaty can be “varied by the absence or presence of a single member.” Such incentives should “keep the body complete” and increase the likelihood that treaties are considered by a greater number of Senators.

Logistical note for those who care:

Alexander Hamilton wrote this particular essay!



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