The Defence No. XXXVI1
[New York, January 2, 1796]
It is now time to fulfil my promise of an examination of the constitutionality of the Treaty.2 Of all the objections which have been contrived against this instrument, those relating to this point are the most futile. If there be a political problem capable of complete demonstration, the constitutionality of the Treaty in all its parts is of this sort. It is even difficult to believe that any man in either House of Congress who values his reputation for discernment or sincerity will publicly hazard it by a serious attempt to controvert the position.
It is nevertheless too much a fashion with some politicians, when hard pressed on the expediency of a measure to entrench themselves behind objections to its constitutionality. Aware that there is naturally in the public mind a jealous sensibility to objections of that nature, which may predispose against a thing otherwise acceptable if even a doubt in this respect can be raised, they have been too forward to take advantage of this propensity without weighing the real mischief of the example. For, however it may serve a temporary purpose, its ultimate tendency is, by accustoming the people to observe that alarms of this kind are repeated with levity and without cause, to prepare them for distrusting the cry of danger, when it may be real. Yet the imprudence has been such, that there has scarcely been an important public question which has not involved more or less of this species of controversy.
In the present case, the motives of those, who may incline to defeat the Treaty are unusually strong for creating if possible a doubt concerning its constitutionality. The Treaty having been ratified on both sides, the Dilemma plainly is between a violation of the constitution by the Treaty and a violation of the constitution by obstructing the execution of the Treaty.
The VI Article of the Constitution of the U States declares that “that Constitution and the laws of the U States made in pursuance thereof, and all Treaties made or which shall be made under the authority of the U States, shall be the Supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.” A law of the land till revoked or annulled by the competent authority is binding not less on each branch or department of the Government than on each Individual of the Society. Each house of Congress collectively as well as the members of it separately are under a constitutional obligation to observe the injunctions of a preexisting law and to give it effect. If they act otherwise they infringe the constitution; the theory of which knows in such case no discretion on their part. To resort to first principles for their justification in assuming such a discretion is to go out of the constitution for an authority which they cannot find in it—it is to usurp the original character of the people themselves—it is in principle to prostrate the Government.
The cases must be very extraordinary that can excuse so violent an assumption of discretion. They must be of a kind, to authorise a revolution in government; for every resort to original principles in derogation from the established constitution partakes of this character.
Recalling to view, that all but the first ten articles of the Treaty are liable to expire at the termination of two years after the present War; if the objection to it in point of constitutionality cannot be supported, let me ask who is the man hardy enough to maintain that the instrument is of such a nature as to justify a revolution in Government?
If this can be answered in the affirmative, adieu to all the securities which nations expect to deri⟨ve⟩ from Constitutions of Government. They become mere bubbles subject to be blown away by every breath of party. The precedent would be a fatal one. Our Government from being fixed and limited would become revolutionary and arbitrary. All the provisions, which our Constitution with so much solemnity ordains “for forming a more perfect union, establishing justice, insuring domestic tranquillity, providing for the common defence, promoting the general welfare and securing the blessings of liberty to ourselves and our Posterity”, evaporate and disappear.
Equally will this be the case if the rage of party spirit can meditate, if the momentary ascendancy of party in a particular branch of the Govt. can effect and if the people can be so deceived as to tolerate, that the pretence of a violation of the constitution shall be made the instrument of its actual violation.
This, however, cannot be. There are already convincing indications, on the very subject before us, that the good sense of the people will triumph over prejudice and the arts of party, that they will finally decide according to their true interest and that any transient or partial superiority which may exist, if abused for the purpose of infracting the constitution, will consign the perpetrators of the infraction to ruin and disgrace. But alas what consolation would there be in the ruin of a party for the ruin of the Constitution!
It is time to enter upon the momentous discussion. The question shall be examined under the four following views: 1 in relation to the theory of the constitution 2 in relation to the manner in which it was understood by the convention who framed it & by the people who adopted it 3 in relation to the practice upon a similar power in the Confederation 4 in relation to the practice under our present constitution prior to the Treaty with G B. In all these relations the constitutionality of that Treaty can be vindicated beyond the possibility of a serious doubt.
I As to the theory of the Constitution. The constitution of the U States distributes its powers into three Departments—Legislative—Executive Judiciary. The 1. Article defines the structure and specifies various powers of the Legislative Department. The second article establishes the organisation and powers of the Executive Department. The third article does the same with regard to the Judiciary Department. The 4 & 5 & the 6 article, which is the last, are a miscellany of particular provisions.
The 1st article declares that “all legislative powers granted by the Constitution shall be vested in a Congress of the U States which shall consist of a senate & House of Representatives.”
The 2d article, which organises and regulates the Executive Department, declares that “the Executive Power shall be vested in a President of the U States of America” and, proceeding to detail particular authorities of the Executive, it declares 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.” There is in no part of the Constitution an explanation of this power to make Treaties, any definition of its objects or delineation of its bounds. The only other provision in the constitution respecting it is in the 6th article, which provides, as already noticed, that all Treaties made or which shall be made under the authority of the UStates shall be the supreme law of the land; and this, notwithstanding any thing in the constitution or laws of any state to the contrary.
It was impossible for words more comprehensive to be used than those which grant the power to make treaties. They are such as would naturally be employed to confer a plenipotentiary authority. A power “to make Treaties,” granted in these indefinite terms, extends to all kinds of treaties and with all the latitude which such a power under any form of Government can possess. The power “to make,” implies a power to act authoritatively and conclusively; independent of the after clause which expressly places treaties among the Supreme Laws of the land. The thing to be made is a Treaty; With regard to the objects of the Treaty, there being no specification, there is of course a charte blanche. The general proposition must therefore be that whatever is a proper subject of compact between Nation & Nation may be embraced by a Treaty between the President of the U States, with the advice and consent of the Senate, and the correspondent Organ of a foreign state.
The authority being general it comprises of course whatever cannot be shewn to be, necessarily, an exception to it.
The only constitutional exception to the power of making Treaties is that it shall not change the constitution; which results from this fundamental maxim that a delegated authority cannot rightfully transcend the constituting act unless so expressly authorised by the constituting Power.3 A treaty for example cannot transfer the legislative power to the Executive Department nor the power of this last Department to the Judiciary; in other words it can not stipulate that the President and not Congress shall make laws for the U States; that the Judges and not the President shall command the national forces &c.
Again there is also a natural exception to the power of making treaties, as there is to every other delegated power; which respects abuses of authority in palpable and extreme cases. On natural principles, a Treaty which should manifestly betray or sacrifice primary interests of the State would be null. But this presents a question foreign from that of the modification or distribution of constitutional powers. It applies to the case of the pernicious exercise of a power, where there is legal competency. Thus the power of Treaty, though extending to the right of making alliances offensive and defensive, may yet4 be exercised in making an alliance so obviously repugnant to the safety of the State as to justify the non observance of the Contract.5
Beyond these exceptions to the Power, none occurs that can be supported.
Those which have been insisted upon towards invalidating the Treaty with Great Britain are not even plausible. They amount to this, that a treaty can establish nothing between the U States and a foreign nation which it is the province of the legislative authority to regulate in reference to the U States alone. It cannot for instance establish a particular rule of commercial intercourse between the U States & G Britain because it is provided in the constitution, that Congress shall “have power to regulate commerce with foreign nations.” This is equivalent to affirming that all the objects upon which the legislative power may act in relation to our own Country are excepted out of the power to make Treaties.
Two obvious considerations refute this doctrine. One that the power to make Treaties and the power to make laws are different things, operating by different means, upon different subjects, the other, that the construction resulting from such a doctrine would defeat the power to make Treaties; while its opposite reconciles this power with the power of making laws.
The power to make laws is “the power of pronouncing authoritatively the will of the Nation as to all persons and things over which it has jurisdiction”; or it may be defined to be “the power of prescribing rules binding upon all persons and things over which the nation has jurisdiction.” It acts compulsively upon all persons, whether foreigners or Citizens, and upon all things, within its territory, and it acts in like manner upon its own citizens and their property without its territory in certain cases and under certain limitations. But it can have no obligatory action whatsoever upon a foreign nation or any person or thing within the jurisdiction of such foreign Nation.
The power of Treaty on the other hand is the power by agreement, convention or compact to establish rules binding upon two or more nations their respective citizens and property. The rule established derives its reciprocal obligation from promise, from the faith which the contracting parties pledge to each other, not from the power of either to prescribe a rule for the other. Tis not here the will of a Superior that commands, tis the consent of two independent parties that contract.
The means which the power of legislation employs are laws which it enacts, or rules which it enjoins, the subject upon which it acts is the Nation of whom it is, the persons and property within the jurisdiction of that Nation. The means, which the Power of Treaty employs, are contracts with other nations, who may or may not enter into them, the subject upon which it acts is the nations contracting and those persons and things of each to which the contract relates. Though a Treaty may effect what a law can, yet a law cannot effect what a Treaty may. These discriminations are obvious and decisive; and however the operation of a Treaty may in some things resemble that of a law no two ideas are more distinct than that of legislating and that of contracting.
It follows that there is no ground for the inference pretended to be drawn, that the legislative powers of Congress are excepted out of the power of making Treaties. It is the province of the latter to do what the former cannot do. Congress (to pursue still the case of regulating Trade) may regulate by law our own Trade and that which foreigners come to carry on with us, but they cannot regulate the Trade which we may go to carry on in foreign countries, they can give to us no rights no privileges there. This must depend on the will and regulation of those countries; and consequently it is the province of the power of Treaty to establish the rule of commercial intercourse between foreign nations and the U States. The Legislature may regulate our own Trade but Treaty only can regulate the mutual Trade between our own and another Country.
The constitution accordingly considers the Power of Treaty as different from that of Legislation. This is proved in two ways 1 that while the Constitution declares that all the legislative powers which it grants shall be vested in Congress, it vests the power of making Treaties in The President with consent of the Senate 2 that the same article by which it is declared that the Executive Power shall be vested in a President and in which sundry executive powers are detailed, gives the Power to make Treaties to the President with the auxiliary agency of the Senate. Thus the power of making Treaties is placed in the class of Executive authorities;6 while the force of law is annexed to its results. This agrees with the distribution commonly made by theoretical write[r]s—though perhaps the power of Treaty from its peculiar nature ought to form a class by itself.
When it is said that Congress shall have power to regulate Commerce with foreign nations this has reference to the distribution of the general legislative power of regulating Trade between the National and the particular Governments, and serves merely to distinguish the right of regulating our external Trade as far as it can be done by law, which is vested in Congress, from that of regulating the trade of a state within itself which is left to each state.7
This will the better appear from the intire Clause—“The Congress shall have power to regulate Commerce with foreign Nations and among the several States and with the Indian Tribes” which is the same as if it had been said “The whole power of regulating trade by law shall reside in Congress, except as to the Trade within a State, the power to regulate which shall remain with such state.” But it is clearly foreign to that mutual regulation of Trade between the U States and other nations which from the necessity of mutual consent can only be performed by Treaty. Tis indeed an absurdity to say that the power of regulating Trade by law is incompatible with the power of regulating it by Treaty; since the former can by no means do what the latter can alone accomplish. Consequently tis an absurdity to say that the legislative power of regulating trade is an exception to the power of making Treaties.
Laws are the acts of legislation of a particular Nation for itself. Treaties are the acts of the legislation of several nations for themselves jointly & reciprocally. The Legislative power of one State cannot reach the cases which depend on the joint legislation of two or more States. For this, resort must be had to the pactitious power or the power of Treaty. This is another attitude of the subject displaying the fallacy of the proposition that the legislative powers of Congress are exceptions to or limitations of The Power of The President, with the aid of the Senate, to make Treaties.
ADf, Hamilton Papers, Library of Congress; The [New York] Herald; A Gazette for the Country, January 2, 1796.
1. For background to this document, see the introductory note to “The Defence No. I,” July 22, 1795.
3. At this point in the newspaper the following sentence has been inserted: “An Agent cannot new modled his own commission.”
4. In the newspaper, “might not” is substituted for “may yet.”
5. At this point in the draft H wrote and crossed out: “But what are truly cases of this kind we may learn from the following passages from Vatel.”
6. In MS, “authorises.”
7. At this point in the draft H wrote and crossed out: “This will be foreign to the regulation of the mutual trade between a foreign country and the U States, because this is not an object of law but of Treaty. It can only be done by mutual consent.
“The very turn of expression concurs with the reason of the thing to shew the sense of the provision The Congress shall have power to regulate Trade with foreign.”