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”.