Treaties

Formal agreements, embodied in a document and binding under international law, between two or more nations in reference to peace, alliance, commerce, territorial agreements, and the like. In the field of foreign affairs, the power of the president under the U.S. Constitution to negotiate and sign treaties is second only to his power as commander in chief. A treaty is negotiated by the president and/or his plenipotentiaries and requires approval by two-thirds of the U.S. Senate before the president may sign the treaty into law.

Presidential Power

Article II, Section 2, of the U.S. Constitution provides the president with the authority to make treaties, with the consent of the Senate. It was by no means clear at the outset of the Constitutional Convention in Philadelphia in 1787, however, that the treaty power would come to be vested jointly in the president and the Senate. Under the Articles of Confederation, the power to make treaties had been vested in the legislature, and the Virginia Plan seemed to indicate that all powers vested in the Congress under the articles should inhere in the legislature under the new constitution.

Alexander Hamilton appears to have been the first person to suggest, in mid-June 1787, that the treaty power should be held jointly by the legislative and executive branches. As late as early August of that year, it seemed as though the Constitutional Convention was heading toward giving the Senate the power to make treaties.

Skeptics were concerned, however, that the new Senate would be pliant to the states and liable to consummate treaties that were not in the interest of the country as a whole. Various regions also feared being sold out. Southerners worried about the future of navigation rights to the Mississippi River, and New Englanders were concerned about the future of fishing rights to the waters off Newfoundland. James Madison took the position that the president, being the only truly national figure entrusted with guarding the interests of the country, should possess the full treaty power himself.

As with so many other important issues at the Philadelphia convention, the delegates sent the treaty issue to the Committee on Postponed Matters. The committee suggested the essential arrangement and language that would become part of Article II, giving the president the power to make treaties “with the Advice and Consent of the Senate,” and specifying that no treaty could be approved without the assent of two-thirds of the senators.

The two-thirds supermajority, put forward as a mechanism to protect regions from having their interests surrendered by treaty, was the object of an amendment that would have required a simple majority vote to approve treaties. Other amendments sought to involve the House of Representatives in the treaty process and to apply the two-thirds supermajority only to treaties that sought to end a war.

Madison offered the lone motion seeking to change the president's role in the treaty process, urging that the Senate should be able to enact peace treaties on its own by a two-thirds vote. Madison believed that a self-interested president might stand in the way of a peace treaty, to maintain his prominence in wartime. But the convention dispatched with his argument quickly when it became clear that Congress could end any war by refusing to fund it.

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