The Federalist Papers · Chapter
LXXV: The Treaty-Making Power of the Executive explained
Hamilton defends the constitutional provision granting the President, with the advice and consent of two-thirds of the Senate present, the power to make treaties.
What happens
Hamilton defends the constitutional provision granting the President, with the advice and consent of two-thirds of the Senate present, the power to make treaties. He argues that this arrangement is a well-digested part of the plan, neither purely executive nor legislative, and that the joint participation of the Executive and Senate provides greater security than vesting the power solely in either. He rejects objections based on the intermixture of powers, the small number of persons involved, and the proposal to require two-thirds of all Senate members, emphasizing the need for wisdom, integrity, secrecy, and dispatch in foreign negotiations.
Themes in this chapter
Separation of Powers and Checks and Balances
Hamilton argues that the treaty-making power is neither purely executive nor legislative, and that its joint exercise by the President and Senate does not violate the separation of powers but rather provides a necessary check.
Republican Government and Representation
The essay discusses the appropriate role of the Senate as a representative body in treaty-making, balancing the need for expertise and stability against the dangers of a numerous and fluctuating House.
National Security and Foreign Relations
The treaty-making power is directly tied to foreign negotiations and national security; Hamilton emphasizes the need for secrecy, dispatch, and integrity in handling such delicate matters.
Human Nature and the Capacity for Self-Government
Hamilton warns against trusting a single executive with treaty power due to human frailties like avarice and ambition, advocating for shared authority to guard against corruption.
Characters to notice
- Publius
Author of the essay, arguing for the treaty-making power as shared between the President and Senate.
- Alexander Hamilton
Implied as the writer of Federalist No. 75, defending the constitutional treaty-making process.
- The Senate
Described as the body that, with the President, holds the treaty-making power; its composition and voting rules are analyzed.
- Congress
Mentioned in the context of the existing Confederation, where Congress currently holds all treaty powers.
- The Judges
Referenced indirectly through the discussion of treaties having the force of law, though not explicitly named.
Key passages
“The President is to have power, 'by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.'”
The Constitution grants the President the authority to make treaties, but only with the Senate's advice and consent, requiring approval from two-thirds of the senators who are present.
Hamilton introduces the specific constitutional clause he is defending.
“The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength.”
Treaty-making is a distinct function, not fitting neatly into the categories of executing laws, making laws, or using national force.
Hamilton argues that treaty power forms a separate department, justifying its shared placement.
“An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents.”
A greedy or ambitious president could be corrupted by foreign powers, sacrificing national interests for personal gain.
Hamilton warns against entrusting treaty power solely to an elected executive due to human weakness.
“The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust.”
The House of Representatives, being large and subject to change, lacks the necessary qualities for treaty-making, such as knowledge, consistency, and secrecy.
Hamilton rejects the idea of involving the House in treaty formation.
