FEDERALIST WATCH

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The Federalist Papers updated to a period just after ratification of the Constitution. Original text retained wherever possible; headings added by editor and may be disregarded. @FederalistWatch


The Rising Sun of the 13 United States, Liberty Pole and Liberty Cap of General Washington's chair at the Constitutional Convention. Photo courtesy of Independence National Historical Park, and links to originals courtesy of the Avalon Project at the Lillian Goldman Law School, Yale University (neither affiliated with Federalist Watch). The Q logo included above reminds the reader in everyday life first to ask – as would the Founders – does the policy or action under review advance the unity and well-being of the People of the United States? To those who would label this site "far right" to discourage review, Hamilton might respond, "If my writings are far right, my opponents must be far wrong."

Presidential Term Limits Were Rejected As Unwise

In Panama City FL on May 8, 2019 (update below) - in response to the crowd chanting "Four more years" - President Trump asked, "what about 6 more years, or 10, or 14? The Fake News media would say he's a despot trying to change our Constitution." False. Repealing the 22nd Amendment would restore Our Constitution as it was written and intended to be, for good reasons, as Hamilton explains in Federalist 72, where he concludes: "There is an excess of refinement in the idea of disabling the People from continuing in office persons who have entitled themselves to the People’s approval and confidence. The advantages of limits are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive." For those who fear unlimited repeal, a compromise is justified under the circumstances: amend it to allow the 45th President to be elected to a third term, since his opponents have obstructed his Presidency with unprecedented, unmitigated and unreasonable opposition, unjustified threats of impeachment, all for partisan gain to disrupt the will of the majority of State electors. This gif sums it up nicely:

Update: At the July 19, 2019 rally in Greenville, NC, President Trump pulled back from suggesting he might get the machinery moving on a third term. He said:

“So we have 16, we have 20, we have 24. And you know, it’s very interesting though, they were really people out there think I’m not leaving.

"Can you believe it? Hey, maybe that is a good idea. Let’s think about it. What you want to drive them crazy? They’re going to go crazy. All I have to do is say, let’s think about it. They’re going to go crazy. No, no. I promise – I promise 2024, I leave. By that time – just so you know, by that time, our country will be so well-seeded, it will be so strong like never ever in our history." Source.

Article V prescribes two ways to amend the Constitution:

1. Two-thirds of the House and Senate approve the proposal and send it to the States for a vote, of which three-fourths must approve the proposed Amendment.

2. A Constitutional Convention to be called by two-thirds of the legislatures of the States. That Convention can propose as many amendments as it deems necessary.

All 27 Amendments have been ratified using the first method, none using the Convention of States method.

Under either method 3/4's of States must approve for ratification to occur. This is expressly stated in the relevant clauses of Article V: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; . . . ."

As a practical matter - in light of the unprecedented "Resistance" discussed above - it seems unlikely 3/4 of the 50 States would approve an amendment benefiting their political opponents. Since presently there are 50 States, and 3/4 thereof in 37.5 - which must be rounded up to 38 to reach the 3/4's ratification threshold under either authorized method of amendment - a coalition of 13 recalcitrant States could defeat any effort to restore the genius of the Founders through repeal of the 22nd Amendment. At present, the Democrat Party controls the Legislatures (upper and lower houses) in 18 States (blue in the chart below).

The good news is all the chatter about eliminating the Electoral College - brilliantly explained by Hamilton in Federalist 68 - has ZERO chance of going anywhere beyond the fevered imaginations of the leaders of these 18 Democrat-controlled States, whose voices require amplification beyond their actual power.

Hamilton and Madison expressed the Founders's views on amendments in Federalist 49 and 50.

|| Federalist 72 ||

Alexander Hamilton

To the People of New York, the United States, and the World:

THE ADMINISTRATION OF GOVERNMENT - in its largest sense - comprehends all the operations of the body politic, whether Legislative, Executive, or Judicial. In its most usual – and perhaps its most precise signification – it is limited to Executive details, and falls peculiarly within the province of the Executive department.

Presidential administration of the Federal government includes (1) the actual conduct of foreign negotiations, (2) the preparatory plans of finance, application and disbursement of the public moneys in conformity to the general appropriations of the Congress, (3) the arrangement of the army and navy, (4) the directions of the operations of war, and (5) other matters of a like nature.

The persons to whose immediate management these different matters are committed ought to be considered as the assistants or deputies of the President. On this account, they derive their offices from presidential appointment and should be subject to the President’s superintendence. This view of the subject at once suggests the intimate connection between the duration of the President in office and the stability of the system of administration.

New Administrations Tend to Undo the Acts of Preceding Administrations

To reverse and undo what has been done by a predecessor is very often considered by a successor as the best proof to be given of his own capacity and desert. In addition to this propensity, where the alteration has been the result of public choice through elections, the person substituted is warranted in supposing that the dismissal of the predecessor proceeded from a dislike to the predecessor’s measures; and that the less he resembles him, the more he will recommend himself to the favor of his constituents. These considerations – and the influence of personal confidences and attachments – would be likely to induce every new President to promote a change of persons to fill the subordinate stations. When combined, these causes could not fail to occasion a potentially disgraceful and ruinous mutability in the administration of the Federal government.

Limiting or Excluding a President from Re-Election Is Unwise

The four-year duration of a presidential term is necessary to give to the President the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits. The option of re-election is necessary to enable the People – when they see reason to approve of the President’s conduct – to continue the President in station, both to prolong the utility of his talents and virtues, and to secure to the Federal government the advantage of permanency in a wise system of administration.

The Negative Effects of Exclusion Outweigh the Positive Ones

Nothing appears more plausible at first sight – nor more ill-founded upon close inspection – than a scheme of continuing the President in office for a certain time and then excluding him from it – whether for a limited period or forever after. Whether temporary or perpetual, exclusion from office would have nearly the same effects, and those effects would be for the most part pernicious rather than salutary.

The Desires for Reward and Fame Are Powerful Inducements to Good Conduct

One ill effect of limiting a President’s eligibility for re-election would be a diminution of the inducements to good behavior. Few persons would feel much zeal in the discharge of a duty when conscious that the advantages of the station connected with the duty must be relinquished at a determinate period, when compared to zeal they would feel if permitted to entertain a hope of meriting a continuance of them. This position is indisputable, since the desire of reward is one of the strongest incentives of human conduct. Together with having a person's interests coincide with duty, it is the best security for fidelity to duty.

Even the love of fame – the ruling passion of the noblest minds – would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit – even those requiring considerable time to mature and perfect them – if he could flatter himself with the prospect of being allowed to finish what he had begun. On the contrary, he would be deterred from the undertaking when he foresaw that he must quit the scene before he could accomplish the work, and must commit that – together with his own reputation – to hands which might be unequal or unfriendly to the task.

The most to be expected from a person in such a situation is the negative merit of not doing harm, instead of the positive merit of doing good.

A Limit on Presidential Terms Can Induce Unscrupulous Policies and Acts

Another ill effect of exclusion would be the temptation to sordid views, speculation, and in some instances, usurpation. An avaricious person – looking forward to a time when he must at all events yield up the emoluments enjoyed as President, might feel a propensity (not easily to be resisted by such a person) to make the best use of the opportunity he enjoys while it lasts, and have recourse to the most corrupt expedients to make his harvest as abundant as it would be transitory.

Avarice Can Guard Avarice

The same person, with a different prospect before him, might content himself with the regular perquisites of his situation, and might even be unwilling to risk the consequences of an abuse of his opportunities. His avarice might be a guard upon his avarice. If the same person also is vain or ambitious – but could expect to prolong his honors by good conduct – he might sacrifice his appetite for gain. But with the prospect before him of an approaching and inevitable annihilation, his avarice would be likely to get the victory over his caution, vanity, or ambition.

An ambitious man, when seated on the summit of his country's honors – and looking forward to the time when he must descend from the exalted eminence forever – and knowing also that no exertion of merit on his part could save him from the unwelcome reverse – such a man would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power – at every personal hazard – than if he had the probability of answering the same end by doing his duty.

Would it promote the peace of the community or the stability of the government to have half a dozen or so former Presidents wandering among the People like discontented ghosts, and sighing for a place they were destined nevermore to possess?

Limiting Presidential Terms Can Deprive the People of an Experienced and Popular Magistrate

A third ill effect of the exclusion would deprive the People of the advantage of the experience gained by the President in the exercise of his office. “Experience is the parent of wisdom” is a truthful adage recognized by the wisest as well as the simplest of mankind. What quality is more desirable or essential than experience in the government of nations? Where is experience more desirable or essential than in the first magistrate of a nation? It is unwise to diminish the desirable and essential quality of experience by declaring that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted. This is the precise import of all those regulations which would exclude individuals from serving their country – by the choice of their fellow citizens – after they have by a course of service fitted themselves for doing it with a greater degree of utility.

Limiting Presidential Terms Might Unnecessarily Exclude Great Leaders

A fourth ill effect of limiting Presidential terms would be the banishment of persons from stations and offices in which their presence might be of the greatest moment to the public interest or safety, especially in certain emergencies. There is no nation which has not, at one period or another, experienced an absolute necessity of the services of particular men in particular situations; perhaps it would not be too strong to say, to the preservation of its political existence. How unwise, therefore, must be every such self-denying ordinance prohibiting a nation from making use of its own citizens in the manner best suited to its exigencies and circumstances!

Requiring a change of the President due to a time or term limitation leave opens the possibility that a the change might happen to coincide with a war breaking out, or any similar crisis. Even accepting the military principle that NO one is irreplaceable, the substitution of someone else –even of equal merit – would at all times be detrimental to the community, inasmuch as it would substitute inexperience for experience, and would tend to unhinge and set afloat the already-settled train of administration.

Presidential Term Limits Undermine Stability

A fifth ill effect of the exclusion would be its operation as a constitutional interdiction of stability in the administration of the Federal government. Necessitating a change of President necessitates mutability of his measures, for in the usual course of things it is not generally expected that men will vary and measures remain uniform.

Fears of Presidential Abuse of Powers Lack Weight

We need not be apprehensive about too much stability, so long as there is the option of changing administrations through Presidential elections. Nor should we desire to prohibit the People from continuing their confidence where they think it may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of fluctuating councils and a variable policy.

The Cited Disadvantages Apply to Both Partial and Total Term Limits

The disadvantages flowing from the principle of exclusion, apply most forcibly to the scheme of a perpetual exclusion; but when we consider that even a partial exclusion would always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other.

The Advantages of Term Limits Are Overstated

There are two principally-asserted advantages advanced to support Presidential term limits: greater independence in the magistrate, and greater security to the People. As for greater independence of the President, it would only apply if the exclusion were perpetual.

But even in the case of an absolute bar after service of one or two terms, is there no object beyond his present station, to which he may sacrifice his independence? Will he have no connections or friends for whom he may sacrifice it?

Would not a President be less willing to make personal enemies through firm conduct, when acting under the impression that a time is fast approaching when he not only may, but must, be exposed to their resentments, upon an equal or perhaps inferior footing? It is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement.

As to the greater security that Presidential term limits supposedly afford the People, there are still greater reasons to entertain doubts concerning it. Assuming a perpetual exclusion existed, a man of irregular ambition would be infinitely reluctant to yield to the necessity of forever taking leave of a post in which his passion for power and preeminence had acquired the force of habit. And if such a President had been fortunate or adroit enough to conciliate the goodwill of the People, he might induce the People to consider any presidential term limit to be an odious and unjustifiable restraint upon themselves, and contend it was calculated to debar them of the right of giving a fresh proof of their attachment to him. An artful induction of disgust for term limits among the People, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty than could ever reasonably be dreaded from the possibility of a perpetuation in office, by the voluntary votes of the community, exercising a constitutional privilege.

There is an excess of refinement in the idea of disabling the People from continuing in office persons who have entitled themselves to the People’s approval and confidence. The advantages of limits are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive.

Publius The Voice of the People

Original Federalist Paper 72

#

[Ed. note Federalist 72]:

Amendment XXII (1951)

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.]

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Hamilton and Jay Would Argue the Senate Ought to Approve the USMCA for the Good of the People of the United States and North America, and that the Speaker and House of Representatives Have No Part in the Process

25 April 2019

In Federalist 64 (below), John Jay persuasively argues why treaties ought to negotiated by the President and approved by 2/3rds of the Senate. In Federalist 75 (also below), Hamilton explains why the Executive is an integral part of the process and the House of Representatives is properly excluded. Federalist 11 follows with an explanation of why unity of purpose is essential to obtaining/maintaining our economic pre-eminence over foreign adversaries. In accordance therewith, President Trump renegotiated the job-exporting NAFTA debacle with the new "USMCA," which awaits Senate approval.

Not unsurprisingly, the Speaker of the House - whose party openly, brazenly and in the face of objective reality resists most of the sound policies advanced by the current Chief Executive (all to benefit party faction) - has attempted to insinuate herself into the treaty-approval process by demanding - of all things - that one of the signatories (Mexico) must revise its labor laws - before her majority will pass any enabling legislation. She then adds that once Mexico complies with her demands - the revisions must be incorporated into the USMCA itself. These outlandish demands are nothing less than an "end run" around the constitutional authority of the President and Senate - thereby confirming why the House of Representative was excluded from the treaty-making process.

#F64

Why Approval of Treaties Is Delegated to the Senate

|| Federalist 64 ||

John Jay

To the People of New York, the United States, and the World:

The Linguistic Diversions of the Enemies of the Constitution

ENEMIES OF PARTICULAR PERSONS and opponents to particular measures seldom confine their censures to things worthy of blame. This principle alone can explain the motives of those who condemn the Constitution in the aggregate and treat with severity some of its most unexceptionable articles.

The Presidential Power to Make Treaties with the Concurrence of Two Thirds of the Senators Present Is Essential

One such provision of the Constitution gives power to the President, “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.” (Art. II, § 2, cl. 2.)

The power of making treaties is an important one – especially as it relates to war, peace and commerce – and it should be delegated in a mode that includes precautions to afford the highest security for its exercise by individuals best qualified for the purpose and in the manner most conducive to the public good.

The Staggered Terms of Senatorial Appointments Establishes a Superior System for Promoting and Protecting Our Trade and Navigation

In the conduct of any business, the absolute necessity of a system is universally known and acknowledged. The Constitution not only wisely commits the power of making treaties to able and honest individuals, it also ensures they continue in office a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them.

The Value of the Accumulated Knowledge of Senators

A term of six years gives a Senator the opportunity to accumulate the political information and experience to benefit the country. And by staggering the terms of Senators, the Constitution leaves a considerable residue of the old ones in place, thereby promoting uniformity and order while preserving a constant succession of official information.

Political information developed over time is particularly important in the affairs of trade and navigation. These should be regulated by a system cautiously formed and steadily pursued. Our treaties and laws should correspond with and promote this system. The Constitution strengthens the conformity of treaties and laws by requiring Senate concurrence for the approval of both.

Those with the Power to Negotiate and Approve Treaties Must Be Allowed to Proceed with Speed and Secrecy

In the negotiation of treaties of any nature, perfect secrecy and immediate dispatch are sometimes required. For instance, one may obtain the most useful intelligence if the person possessing it can be relieved from apprehension of discovery, which operates whether the person is a mercenary or a friend. Many of both descriptions would choose to rely upon the secrecy offered by the President, but decline to confide in a Senator, and still less so to a member of a popular assembly like the House of Representatives. This consideration alone sufficiently explains why the power of making treaties must not be committed to a popular assembly composed of members constantly coming and going in quick succession. Such a body must necessarily be inadequate to the attain those great objects requiring steady contemplation in all their relations and circumstances. Those objects can only be approached and achieved with talents, exact information, and time.

The affairs of humans are marked by tides of irregular duration, strength and direction, seldom running twice exactly in the same manner or measure. To discern and profit by these tides in national affairs is the business of those who preside over them. The most experienced negotiators inform us there are frequent occasions when days or hours are precious. The loss of a battle, death of a prince, removal of a minister, or other circumstances can intervene to change the present posture and aspect of affairs and turn the most favorable tide against our wishes. As in the field, so in the cabinet, with moments to be seized as they pass. Those who preside in either should be given the capacity to improve the situation.

The People May Delegate the Power to Negotiate and Approve Treaties on the Federal Government’s Behalf to a Select Body of Citizens

Some are displeased that treaties are to have the force of law, and say treaties should be made only by individuals invested with legislative authority. The provision in question states:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (Art. VI, ¶ 2.)

All constitutional acts of power – whether in the Executive or in the Judicial department – have as much legal validity and obligation as if they proceeded from the legislature itself. The Constitution of New York, for instance, declares the judgments issued by its courts (the Judicial authority) and the commissions issued by its governor (the Executive authority) are as valid as and binding as the laws passed by its legislature (the Legislative authority). To put it another way, the People’s delegation of the power to make laws to a legislative authority does not authorize the legislature to do every other act of sovereignty by which the citizens are to be bound and affected.

Whatever name be given to the power of making treaties – or however obligatory the treaties may be when made – it is certain the People may properly commit that power to a body distinct from the legislative, executive or judicial branches.

Treaties Have Always Superseded National Laws

Some oppose the provision that declares treaties are to be the supreme law of the land. They profess to believe treaties are repealable at pleasure, like the acts of the legislature. This idea seems to be new and peculiar to this country. But just as new truths often appear, so too do new errors.

A treaty is only another name for a bargain. What nation would make any bargain with us if it binds them absolutely, but us only for as long and far as we think to be bound? Laws may be amended or repealed, as treaties may be altered or cancelled. But treaties are not made by one party alone. Two parties are required, and at first the consent of both is essential to formation of the treaty. As the consent of both parties is required at the outset, so it must afterwards be to alter or cancel the agreement. The Constitution does not change in the least the obligations of treaties. Treaties remain just as binding and beyond the lawful reach of legislative acts now as they will be at any future period under any form of government.

Fears of Tyranny and Corruption Are Unfounded

Jealousy of one’s rights or the rights of others can be useful in a republic, but when jealousy abounds in the body politic, it can become like bile in the natural body, which clouds the eyes with delusive appearances. It can produce the fears and apprehensions of those who contend the President and Senate will make treaties without an equal eye to the interests of all the States, or that two thirds of them will oppress the remaining third. The opponents ask: who shall punish individual corruption, and how are we to scuttle disadvantageous treaties?

The possibility of a tyranny by the majority is negated by several facts. First, the States are equally represented in the Senate, and by individuals the most able and the most willing to promote the interests of their constituents. So long as the States continue to be careful in appointing proper persons – and insisting on their punctual attendance – they will all have an equal degree of influence in that body. Second, as the United States assumes more of a national form and character, so will the good of the whole be more and more an object of attention. A government must be a weak one indeed if it should forget the good of the whole can only be promoted by advancing the good of each of its parts or members.

Neither a President nor a Senator will possess the power to make any treaty which does not equally bind or affect their families and estates together with the rest of the community. Since their private interests are indistinct from those of the nation, neither will be tempted to neglect the community.

As to corruption, a person must either have been very unfortunate in his intercourse with the world – or possess a heart susceptible to such impressions – who can think it probable the President and two thirds of the Senate would ever be capable of such unworthy conduct. It is difficult even to entertain so gross and invidious a thought. But if such a case should ever happen, the treaty so obtained from us would be – like all other fraudulent contracts – null and void by the law of nations.

With respect to their responsibility, how can it be increased? Every influence on the human mind – such as the love of country, family affections and attachments, reputations, oaths, honor, and conscience – afford security for their fidelity. The Constitution has taken the utmost care to ensure Presidents and Senators shall be individuals of talents and integrity. I am persuaded the treaties they make will be as advantageous as could be made under the circumstances. And to the extent the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on impeachments. (Art. II, § 4.)

Original Federalist Paper no. 64

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#F75

The Power to Make Treaties Rests with the President and Senate in a Distinct Federal Department

|| Federalist 75 ||

Alexander Hamilton

To the People of New York, the United States, and the World:

The President has the power, “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.” (Art. II, § 2, cl. 2.)

The President Is an Integral Part of Treaty Negotiations

Although this provision was assailed on different grounds with no small degree of vehemence, it is well considered and unexceptionable. One objection rested on the trite topic of improper intermixture of powers. Some argued the President ought alone to possess the power of making treaties, while others proposed the Senate as the exclusive repository of this power. Others disapproved of the relatively small number of individuals involved in the process, urging participation of the House of Representatives. Still others contended approval should require two thirds of all the members of the Senate, rather than two thirds of those present.

The provision in question was discussed in F64, and I flatter myself the observations there made suffice to place it in a very favorable light to a discerning eye. Hence here I shall content myself with offering only some supplementary remarks regarding the objections just stated.

With regard to the asserted improper intermixture of powers, I refer to F47 and F48, which discuss the application of the doctrine of separation of powers to the Constitution. From those numbers I shall take it for granted that the union of the Executive with the Senate is no infringement of that rule with respect to treaties. I venture to add that the particular nature of the power of making treaties establishes the propriety of that union.

Although several writers on the subject of government have placed the power of making treaties in the class of powers belonging to the Executive, this is an arbitrary disposition. If we attend carefully to its operation, the power partakes more of the Legislative than of the Executive character, although it does not seem strictly to fall within the definition of either of them. The essence of the Legislative authority is to enact laws, that is, to prescribe rules for the regulation of the society. The essence of the Executive authority is to execute those laws using the common strength or the common defense.

Treaties Are Contracts Negotiated Between Sovereigns

The power of making treaties is distinct from both. The power does not relate to the execution of existing laws, nor to the enactment of new ones, and even less to an exertion of the common strength.

Its objects are contracts with foreign nations. These contracts have the force of law, but they derive this force from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power of making treaties forms a distinct department that properly belongs to neither the Legislative nor the Executive.

The indispensable qualities for the management of foreign negotiations – explained in F53 and F64 – identify the President as the most fit agent in those transactions, while the vast importance of the trust involved and the operation of treaties as laws demand the participation of the whole or part the Legislative body in making them.

The Treaty-Making Power Cannot Rest with the President Alone

The President alone must not have the entire power of making treaties. While that power might safely or properly be given to an Executive magistrate in an hereditary monarchy, it would be utterly unsafe and improper to entrust that power to an elective magistrate of four years’ duration. An hereditary monarch – though often an oppressor of the People – has too much stake personally in the government to be corrupted by foreign powers in any material way. But an individual raised from the station of a private citizen to the rank of President – possessed perhaps of a moderate or slender fortune, and envisioning a return to that station in the near future – might sometimes be under temptation to sacrifice duty to interest, a situation only superlative virtue could withstand.

An avaricious man might be tempted to betray the interests of the People to the acquisition of wealth. An ambitious man might solicit the aid of a foreign power for his own benefit, the price of his treachery to his constituents. The history of human conduct warrants no exalted opinion of human virtue. It would be unwise for a nation to commit its interests concerning dealings with the rest of the world – often both delicate and momentous – to the sole disposal of an individual who serves as a President of the United States.

The Treaty-Making Power Cannot Rest with the Senate Alone

Similarly, entrusting the power of making treaties to the Senate alone would relinquish the benefits of the Constitutional agency of the President in the conduct of foreign negotiations. While presumably the Senate could employ the President as a negotiator, pique or cabal might induce it to forego this option.

Besides this, the President – being merely a ministerial servant of the Senate – would be unable to act with the degree of weight or efficacy accorded an individual holding constitutional authority. Foreign powers would naturally have less confidence in and respect for the President’s authority, and the United States thereby would lose a considerable advantage in the management of its external concerns. And in turn the People would be deprived of the additional safety that would result from the cooperation of the President.

The President and Senate Working Together Is Better than Either Acting Alone

Anyone who maturely weighs the circumstances which must occur for the appointment of a President (see F68) will be satisfied the office will always bid fair to be filled by individuals of wisdom and integrity, rendering their concurrence in the formation of treaties peculiarly desirable. In sum, the joint possession of the power of making treaties by the President and Senate will afford a greater prospect of security than the separate possession of that power by either of them.

The House of Representatives Is Properly Excluded from Treaty Negotiations and Approval

As for the admission of the House of Representatives to a share in the formation of treaties, my remarks in F64 reject that option with conclusive force. Taking future increases of that body into account, its multitudinous and fluctuating composition forbid us to expect it to possess those qualities essential to the proper execution of such a trust. The qualities essential to making treaties – accurate and comprehensive knowledge of foreign politics, a steady and systematic adherence to the same views, a delicate and uniform sensibility to national character, secrecy, decision and dispatch – are incompatible with the genius of a body so variable and so numerous. Adding the concurrence of the House of Representatives to that of the President and Senate would itself complicate the business of making treaties. It would require both more frequent calls upon House members and more time to keep them together when convened to obtain their sanction in the progressive stages of a treaty. The inconvenience and expense alone ought to condemn the project.

Requiring Treaty Approval by Two-Thirds of Senators Present Works Best

The remaining objection to Senate concurrence would have substituted the proportion of two thirds of the entire Senate for two thirds of the members present, as set forth in the Constitution.

All provisions requiring more than the majority of any body to its resolutions have a direct tendency to impede its operations and an indirect tendency to subject the sense of the majority to that of the minority. This consideration alone was sufficient to determine the Constitution goes as far as necessary to secure the advantage of numbers in the formation of treaties as can be reconciled with either the activity of the public councils or a reasonable regard to the major sense of the community.

If two thirds of the entire Senate were required for treaty approval, in practice it would require near unanimity if some members chose not to attend. Demanding the approval of two thirds of all Senators present is simply a demand for higher proportion of those Senators already in attendance. The history of every political establishment where this principle has prevailed is one of impotence, perplexity, and disorder. Proofs might be adduced from the examples of the Roman tribuneship, the Polish diet, and the states-general of the Netherlands, but examples from our own experience make foreign precedents unnecessary.

Requiring Two-Thirds of Senators Present Promotes Punctual Attendance

The motives to punctual attendance are diminished by a continuing demand for one’s presence at all times. But a body that depends on a proportion of those present has the opposite effect, since the presence or absence of a single member can make all the difference. As this tends to promote punctuality, it tends to keep the body complete. In all likelihood the same number of Senators will be present for the vote whether the requirement is two thirds of the whole or two thirds of those present. With the members voting individually, the active voices in the Senate would rarely fall short in number of active voices that were present in the Congress under the former Articles of Confederation.

When we add to these considerations the participation of the President, the People of America would have greater security against an improper use of the power of making treaties than existed prior to adoption of the Constitution. And when finally we envision the likely erections of new States and the consequent addition of Senators, we can have even greater confidence in the sufficiency of members to whose agency the power of making treaties will be entrusted, as well as the knowledge that a body more numerous than the Senate would very little fit for the proper discharge of the trust.

Publius The Voice of the People

Original Federalist Paper 75 of 85

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|| Federalist 11 ||

Alexander Hamilton

To the People of New York, the United States, and the World:

THE IMPORTANCE of the United States to foster and improve commerce among the several States is indisputable. The same is true for our commercial intercourse with foreign countries.

The commercial character of the United States has already excited uneasy sensations in several of the maritime powers of Europe. They are apprehensive that our union will interfere with their carry of trade, which supports their navigation and naval strength. Those countries with colonies in America foresee the dangers to their American dominions from United States, which would have the disposition and means to create a powerful marine. The cabinet ministers of Europe already have in place policies designed to foster divisions among us, and to deprive us an active commerce with our own ships. By dividing us, they seek to prevent our interference in their navigation, monopolize the profits of our trade, and clip the wings by which we might soar to a dangerous greatness.

Methods to Counter Foreign Interference:

IF WE CONTINUE TO REMAIN UNITED, we may counteract these unfriendly policies in a variety of ways. By prohibitory regulations, we would oblige foreign countries to bid against each other for the privileges of our growing markets. Any manufacturing nation would discern the immense difference between using its own ships to trade directly with our union and the indirect conveyance of its products and returns to and from the United States in the ships of another country. If we excluded Great Britain from our ports, would it not enable us to negotiate, with the fairest prospect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that kingdom? Some have responded that such a prohibition on our part would produce no change in the system of Britain, because she could prosecute her trade with us through the medium of the Dutch, who would be her immediate customers and paymasters for those articles which were wanted for the supply of our markets. But would not her navigation be materially injured by the loss of the important advantage of being her own carrier in that trade? Would not the principal part of its profits be intercepted by the Dutch, as a compensation for their agency and risk? Would not the mere circumstance of freight occasion a considerable deduction? The price of British commodities in our markets would increase, and facilitate competition from other nations by transferring to other hands the management of British commerce.

The real disadvantages to Britain (or any other nation) from such a state of things - together with the predispositions of its inhabitants in favor of trade with the United States, as well as the needs of its colonies in the West India islands - would relax her present system let us enjoy privileges in the markets of those islands and elsewhere, from which our trade would derive the most substantial benefits. To gain such a point from the British government, of course, could not be expected without an equivalent in exemptions and immunities in our markets. It would, however, improve the conduct of other nations, who would not be inclined to see themselves altogether supplanted in our trade.

Lack of Unity Leaves Us Prone to Foreign Interference:

Should we fail to remain united, our commerce would be a prey to the wanton intermeddlings of all nations at war with each other, who, having nothing to fear from us, would with little scruple or remorse, supply their wants by depredations on our property as often as it fell in their way. The rights of neutrality will only be respected when they are defended by an adequate power. A nation that is despicable by its weakness forfeits even the privilege of being neutral.

Under a vigorous Federal government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of European jealousy to restrain our growth. An active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral and physical necessity. We might defy the little arts of little politicians to control or vary the irresistible and unchangeable course of nature.

Without a union, powerful maritime nations would avail themselves of our universal impotence to prescribe the conditions of our political existence, since they have a common interest in being our carriers, and still more in preventing our becoming theirs. We would be confined to a passive commerce, compelled to content ourselves with the first price of our commodities, and to see the profits of our trade snatched from us to enrich our enemies and persecutors. That unequaled and inexhaustible American spirit of enterprise, exemplified by the genius of our merchants and navigators, would be stifled and lost, and poverty and disgrace would overspread a country which, with wisdom, might make herself the admiration and envy of the world.

Our nation holds rights to coastal fisheries and navigation of the Great Lakes and Mississippi. If the union is dissolved, these rights would be open to question, and the European powers would hardly fail to solve those questions to our disadvantage. The rights of fishing and navigation are important to all navigating states, and would be more so with a greater extension of mercantile capital. The navigating states are a nursery of seamen, who in turn are indispensable to the establishment of a navy.

Every institution will grow and flourish in proportion to the quantity and extent of the means concerted towards the formation and support of a navy. A navy of the United States - established from the resources of all - is far less remote than a navy of any single State or partial confederacy. Each region of America will contribute its own part. The more southern states furnish in greater abundance certain kinds of naval stores – tar, pitch, and turpentine – as well as wood of a more solid and durable texture. Iron from the southern and middle states is plentiful and of better quality. Seamen must chiefly be drawn from the northern hive. The necessity of naval protection to external or maritime commerce requires no elucidation. Similarly, the success of maritime commerce is conducive to the prosperity of a navy.

An unrestrained intercourse of trade between the States themselves will advance the trade of each; first, by an interchange of their respective productions for the supply of reciprocal wants at home, and second, for export to foreign markets. The diversity in the production of different States will give commercial enterprise a much greater scope, from the diversity in the productions of different states. When the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. The variety of products for export contributes as much as does their value to the activity of foreign commerce. Much better terms can be had with a large number of materials of a given value than with a small number of materials of the same value. Particular articles may be in great demand at certain periods and unsalable at others. The greater the variety of articles available for export, the lesser the chance the operations of merchants would stagnate. The speculative trader will at once perceive the force of these observations. A union is far more likely to command a fair price for its goods than single State or partial confederacy.

Some might argue that an intimate intercourse between the States would exist with or without a union, thus achieving the same ends. To this we believe these papers have shown that such intercourse would be fettered, interrupted and narrowed by a multiplicity of causes. A unity of commercial and political interests can result only from a unity of government.

The Hubris of Europe

Our situation invites and our interests prompt us to aim at an ascendant in the system of American affairs. At present, the world is divided politically and geographically into be divided into four parts - Europe, Africa, Asia and America - each having a distinct set of interests. Unhappily for the other three, Europe, by her arms and negotiations, by force and fraud, has by degrees extended her dominion over them all. Africa, Asia, and America have successively felt her domination. Due to the length of her superiority, she has plumed herself the Mistress of the World. She considers the rest of mankind as created for her benefit. Some philosophers actually have attributed to Europe’s inhabitants a physical superiority, and seriously asserted that all animals – and with them the human species – degenerate in America – so that even dogs cease to bark after having breathed awhile in our atmosphere. Unfortunately, the facts have too long supported these arrogant pretensions. Therefore it falls to America to vindicate the honor of the human race, and to teach moderation to our pretentious European brethren. A federal union enables us to do it. Disunion will add another victim to Europe’s triumphs. Let Americans disdain to be the instruments of European greatness! Let the thirteen States, bound together in a strict and indissoluble union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world!