The History of “Advice and Consent”

Article II, Section 2, Clause 1 of the United States Constitution reads (in reference to the president):

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; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The phrase “advice and consent” caught my eye and I wondered what its history was.

The formulation, apparently, derives from the constitution of the Commonwealth of Massachusetts, appears frequently there, and refers to the interrelationships among the governor, the Massachusetts Executive Council, a small elective body with broad powers of approval and counsel, and the General Court. After a little digging I learned that the phrase has been hotly debated going back to the early days of the Republic.

The first draft of the U. S. Constitution submitted at the constitutional convention, the “Pinckney Draft” after its primary author, Charles Pinckney of South Carolina, gave to the Senate the sole authority of declaring war, making treaties, or appointing ambassadors and other government functionaries. That was the prevailing form until quite late in the convention when the present language giving to the president the right to negotiate treaties and the Senate the power of ratification and “advice”. That was apparently arrived at in the interests of expedition, something that George Washington learned about to his dismay when he presented a treaty with various native tribes he had negotiated for ratification by the Senate and the Senate sent it committee.

Keep in mind: there was never serious discussion of giving the sole power to negotiate treaties to the president. Debate was over whether to give any power in that area to the president at all.

The professionalization of treaty negotiation is actually a relatively recent phenomenon. William McKinley, among the shrewdest of our presidents, asked senators to participate in the negotiation of our peace treaty with Spain in 1898. The treaty was approved unanimously. In contrast not only did Woodrow Wilson not include the Senate in the negotiation of the Treaty of Versailles, he angrily rejected the Senate’s “reservations” (proposed amendments) to the treaty. The U. S. never ratified the treaty, the United States never joined the League of Nations, and that is a reason frequently given for the league’s eventual failure.

Presidents Franklin Roosevelt and Harry Truman included senators in important treaty negotiations with the effect that their treaties were frequently ratified. Since then presidents have asserted ever-greater authority in negotiating treaties until arriving at the point at which we are now in President Obama’s apparently assuming that once negotiated his treaties should automatically be ratified.

As I’ve written before I think the members of Congress who sent an open letter to the leaders of Iran erred. They should have addressed their letter to the president and bought full page spreads in the New York Times and Washington Post for it. And posted it on Facebook. The leaders of Iran are not ignorant of the United States or things happening here and in doing so members of the Senate would be acting fully within their powers to advise the president on matters of foreign policy.

I also think that characterizing the letter as “treasonous” is excessive. Treason has an actual meaning and it isn’t “stepping on the president’s toes”. or “going around the president to exercise the Congress’s legitimate authority”.

We have arrived at this pass because of the hostility between the Congress and President Barack Obama, something I appear to be nearly alone among Democrats in attributing to ideology and partisanship rather than racism and think that the president has gone out of his way to alienate the Senate, something that applies not only to Republicans but to Democrats as well, something attested by enough Senate Democrats it can hardly be denied.

In writing this post I used the following references:

James Madison, the Writings of James Madison vol. 3 (1787, the Journal of the Constitutional Convention, Part I
Briefing on Treaties
Adam J. White, Toward the Framers’ Understanding of “Advice and Consent”: A Historical and Textual Inquity

I heartily recommend reading James Madison’s journal on the Constitutional Convention. It’s full of interesting information on how we got the constitution that was finally arrived at. One of the things that should be no surprise is that it was a compromise. An interesting characterization of the constitution during deliberations (reported by Madison but not his) was that it was a treaty among the states. That’s a thought worthy of reflection.

The illustration above is of a manuscript of the “Pinckney Draft”.

25 comments… add one
  • jan

    “We have arrived at this pass because of the hostility between the Congress and President Barack Obama, something I appear to be nearly alone among Democrats in attributing to ideology and partisanship rather than racism and think that the president has gone out of his way to alienate the Senate, something that applies not only to Republicans but to Democrats as well, something attested by enough Senate Democrats it can hardly be denied.”

    I thought that was a well worded statement, Dave. The polarized atmosphere has only increased under this president, IMO. Ill-placed statements by McConnell, such as holding Obama to one term, have been cast as racist, and looped over and over again to excuse the executive branch in not extending it’s own olive branch, mending fences, compromising, getting to know members of Congress by meeting with them more frequently, and so on. This does not show leadership and good will towards people who do not agree with your policies. Instead it’s giving the finger to your adversaries, collecting your toys, and playing by yourself. That’s not only childish but also foolish and can be dangerous for the well being of the country.

    Also, if Obama were not a bi-racial president, and instead was just another white male, he would be receiving less support and more static for his peevish performances. Furthermore, if you substitute a R for the D, he would have been run out of town by this time!

    BTW, I think you’re spot on about the letter. It should not have been sent directly to Iran, but given another forum to voice their objections. However, what it indicates to me is how fractured and dysfuntional DC really is, with the letter more a symbol of the republican party’s frustration over how to exercise it’s power when dealing with a president who is consistently going outside his own power.

  • Andy

    “An interesting characterization of the constitution during deliberations (reported by Madison but not his) was that it was a treaty among the states.”

    It still is, though not to the extent it once was. Our nation is less divided geographically, but many of the political limitations built between federal and state government remain.

    I agree the “47” erred and would go further and suggest it was dumb and unprofessional.

    Another worrying trend (not mentioned in your post here, but I think you’ve discussed it before) is the increasing use of executive agreements in lieu of treaties.

  • Modulo Myself

    The Republicans have built provincial fantasy kingdoms without ever checking if their fantasies are popular enough to sell nationwide. Their foreign policy fantasies are not. It’s like asking Obama to take the bite of the proverbial shit-sandwich, and then when he balks, building an entire line based on the simple tasty idea of a shit sandwich. You have a Paul Wolfowitz, a Cheney, a Weekly Standard. They’re all pretty good, according to certain shit-sandwich specialists. Not everyone agrees, though. We really need to get over this polarization and hostility.

  • Andy

    BTW, I think if we do get a deal with Iran, it won’t be a treaty but an executive agreement.

  • You might want to get your eyeglass prescription checked, MM. It isn’t just Republicans. Democrats aren’t immune to building “provincial fantasy kingdoms” that won’t fly nationally. Note that California, New York, and Illinois all have net outmigration.

  • PD Shaw

    “George Washington learned about to his dismay when he presented a treaty with various native tribes he had negotiated for ratification by the Senate and the Senate sent it committee.”

    According to Stanley and Elkins, who reviewed various reports of this first treaty negotiation:

    1. Washington and everybody presumed that “advise and consent” meant pre-negotiation communications btw/ the exeuctive and the Senate on the terms to be negotiated.

    2. A Senate committee conferred with Washington to figure out how these pre-negotiations communications should be implemented, in particular whether oral or written. The committee decided to defer to Washington’s judgment dependent on the situation.

    3. Washington made an appointment to appear before the Senate, where he explained the Indian issue and seven questions he sought the Senate’s advise (the questions actually read by Adams). Secretary of War Knox came to answer any more specific questions.

    4. The presentation was a disaster. The Senate couldn’t hear all because of traffic, and many wanted to educate themselves more before answering any of the questions. Some wanted to form a committee to issue a report. Washington was angry that his time and effort appeared to be wasted.

    5. The hearing was postponed for the weekend. Washington reappeared more relaxed and the Senate generally agreed to the approaches Washington had laid out.

    6. While Washington would later write letters to the Senate about ongoing negotiations, there would never be any sort of formal advise sought from the Senate.

    Washington had assumed advise was a requirement, as a British Prime Minister, it would be done formally in person through a question and answer session. Afterwards, advise became informal back-channel discussions and defense of treaties already negotiated, though through the Secretary of State, not the President.

  • Modulo Myself

    I have no idea about Illinois but California and New York’s outmigration are based in the high cost of real estate. These are both highly delusional and flawed places, but they are very popular highly-delusional and flawed places.

    Republican foreign policy is pretty much the opposite of this. It’s at its best if it makes no noises and dresses respectably. When it moves, everyone is appalled. The best Republicans can hope for is enforced forgetting and ignorance.

  • I have no idea about Illinois but California and New York’s outmigration are based in the high cost of real estate.

    This is getting terribly off-topic. Please present evidence that Californian and New York outmigration are based solely on the high cost of real estate (your assertion). I think they’re evidence of a much greater economic and social dysfunction, a “hollowing out” of the states’ economies that benefits the richest people in the state.

    You’re focusing on the “popular” aspect of your assertion while I’m concentrating on the “fantasy” part. My retort addressed both sides of that. Elections are no way to gauge either workability or popularity. Outmigration is a much better measure. People are voting with their feet.

    I, personally, don’t want to live either in Texas or Utah but, judging by their net inmigration, there are a lot of people who do.

  • PD:

    And that’s why the Pentagon is in love with PowerPoint.

    This:

    Washington and everybody presumed that “advise and consent” meant pre-negotiation communications btw/ the exeuctive and the Senate on the terms to be negotiated.

    is the crux of the problem. Our custom and law are built around the idea of a collaboration between the legislative branch and the executive branch with the legislative branch holding most of the power. That’s really not compatible with the Obama Administration’s view of government.

  • jan

    Basically, it seems that negotiations between Congress and the WH have lost all perspective, and have become more a game of strategy and one-upping each other than critically contemplating good options….together. I see this letter as nothing more than an exasperated measure to cut off what some view as executive malfeasance.

    The “good” some are saying it’s doing is to bring the topic of Iran’s nuclear ambitions more into the public forum of debate — even exposing it to be a “non-binding,” rather feeble agreement. The more negative unintended consequences, though, is to adversely effect a bipartisan Congressional response to Obama’s unilateral reach in this foreign affairs event — something that would be more unifying and stronger in it’s implementation than a grouping of partisan republicans could possibly have.

    However, when there is a contentious leader, who listens only to his own WH advisors, then what else can you expect but a reflection of the same behavior in other areas of government!

  • steve

    “something I appear to be nearly alone among Democrats in attributing to ideology and partisanship rather than racism”

    I have never thought or claimed that. In fact, other than on the internet or TV, I have never heard this claim made. I hear the opposite all of the time, including on TV and the internet.

    “I also think that characterizing the letter as “treasonous” is excessive.”

    Agreed. The lack of engagement by Congress is the source of a lot of our problems. It is a shame that they decided to be so stupid, but they have the right to do that also.

    PD- I think you have that history correct from my memory on reading this.

    “That’s really not compatible with the Obama Administration’s view of government.”

    I guess we will continue to see this differently. I believe that each congress person goes through his own election and has their own motivations. It seems pretty clear, given that most seats are safe for the party, the biggest threat for most people is the primary race. Cooperating with the other side, for Republican or Democrat, means risking losing in the primary (Bennett, Lugar, Murkowski, Lieberman). No one really works across the aisle anymore. Shall we count the number of bipartisan bills coming out of Congress in the last 12 years? To their credit, the GOP was correct. They gamed out the ACA perfectly. It was easy to demagogue. Roll out problems were predictable. Rather than participate, they used it to win a couple of elections, though of course not the big one.

    Finally, any idea why the GOP (look at jan) continues to view this as bilateral negotiations? There are 5 other countries involved.

    Steve

  • jan

    “Finally, any idea why the GOP (look at jan) continues to view this as bilateral negotiations? There are 5 other countries involved.

    The only “bilateral” references made by me were between our own governing bodies — the executive and congressional branches – with nothing being alluded to regarding other countries involved with these negotiations. And, I continue to think it wiser for the WH to confer with Congress in reaching such an important and timely agreement with a country like Iran.

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