Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.


Treaty? What Treaty?

Fall 1996
Bruce Ackerman and David Golove
Harvard University Press, 1995, 129 pgs.

The authors of Is NAFTA Constitutional? call attention to a striking absence in the heated public debate over the Nafta agreement. The measure secured the approval of both Houses of Congress, albeit with considerable arm-twisting from the White House. But the Constitution on its face mandates another procedure for agreements of this sort. 

The "real battle over Nafta was in the House. But there is a puzzle here, obvious to any reader of the constitutional text. The President, the Framers assure us, 'shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators concur.' Whatever happened to the treaty clause" (p. 1, footnote numbers omitted)? 

To call this, as our authors do, a "puzzle" is an understatement. Nafta is an important international agreement, surely a treaty if anything is. The Constitution requires that two-thirds of the Senate approve a treaty. Nafta did not obtain the necessary two-thirds; and the vote in the House had no constitutional standing. Yet very few opponents of the measure even remarked on this blatant violation of the Constitution. 

I digress to note that one critic did see the issue. With his customary acuity, Murray Rothbard pointed out: "Nafta is called a trade agreement so that it can avoid the constitutional requirement of approval by two-thirds of the Senate" (Murray N. Rothbard, Making Economic Sense, p. 307). 

Ackerman and Golove make clear that much more than a procedural technicality is at stake. The two-thirds clause was carefully inserted into the text of the Constitution in order to protect the rights of the states. A treaty, even one that commanded majority support within the country, could not take effect in the face of opposition from a substantial number of states. 

As George Washington observed: "[I]t is well known that . . . the smaller States were admitted to an equal representation in the Senate with the larger States . . . for on the equal participation of those powers the sovereignty and political safety of the smaller States was deemed essentially to depend" (p. 12). 

The authors state, and document to the hilt, that "Washington's defense of the senatorial monopoly expressed the overwhelming constitutional consensus for the next century and a half" (p. 12, footnote number omitted). Sometimes, indeed, the President acted independently of the Senate in international affairs; but never before the New Deal did that modern monstrosity, the "congressional executive agreement" emerge. Further, unilateral acts of the President could not generate binding international commitments. 

Even so aggressive a president in foreign affairs as Theodore Roosevelt knew full well the limits of his independence. When he put into effect, without Senate approval, an executive agreement that placed Santo Domingo under American receivership, he did not contend that his action had the force of international law. On the contrary, it would lapse when he left office. "Roosevelt could give his own word to Santo Domingo, but he did not think he could bind the next President, let alone the United States" (pp. 1 20). 

As even Macaulay's schoolboy knows, Franklin Roosevelt had a near pathological aversion to Constitutional government. It was hardly likely that a president who sought to undermine the Supreme Court for daring to stand in the way of the New Deal would be scrupulous in observing precedent in foreign relations. 

"The New Deal could not succeed at home without revolutionizing economic policy-making abroad," the authors write. "The new Administration wasted no time implementing an expanded conception of executive authority to make binding international commitments in the name of the United States" (p. 45). 

In particular, Roosevelt claimed unprecedented authority to revise tariff rates as he wished. (Incidentally, our authors, who are uncritical partisans of the New Order, never fail to describe Roosevelt's actions in the most favorable possible way. They note, e.g., that the World Monetary and Economic Conference "was a failure"; but they omit to mention that Roosevelt himself torpedoed the Conference in 1933 [p. 46].) 

The New Deal revolutionaries had a problem on their hands. They wished to justify Roosevelt's claim to bind the United States in foreign affairs independently of the Senate; but the Constitution barred the way. What was to be done? To the New Deal intellectuals, intoxicated by the wish to "make America over," in Rexford Tugwell's words, the solution lay at hand. If Constitutional precedent imposed an obstacle, why not rewrite history? 

Eminent legal scholars, such as Edward Corwin and Wallace McClure, were quick to provide the New Deal with what it desired. McClure, in particular, assumed a leading role in the new "scholarship." 

McClure "was not content to establish that both Houses of Congress could substitute for the Senate in ratifying presidential initiatives. He contended that the President could bind the nation unilaterally on any matter, 'regardless of congressional approval or at least if Congress does not by law dissent'" (pp. 67 68, quoting McClure; footnote numbers omitted). 

To make their case, McClure and those like-minded piled up instance after instance of independent presidential action; these, they averred, showed that the customary understanding of the treaty clause was in error. 

Our authors are ardent partisans of the New Deal and the contemporary abrogation of the treaty clause. But they are far from endorsing as correct the historical account of McClure and his fellow engags. Quite the contrary, much of the book consists of a detailed refutation of the case brought forward by the New Dealers. To claim that the new doctrine, under which executive agreements were interchangeable with treaties in legal force, arises continuously from past precedent is a modernist myth. In an effort to make their conclusion more palatable, Corwin and McClure distorted history. 

Their Orwellian efforts to revise history did not go unchallenged; and our authors pay well-deserved tribute to Edwin Borchard, a Yale University law professor who led the counterattack. "His sharp polemics parried his opponents' claims at every point. . . . He vigorously disputed his opponents' history, charging that they had concealed their radical break with a constitutional tradition that had served the nation well" (p. 72). 

Ackerman and Golove should have mentioned, though, that Borchard's defense of the traditional view of the treaty clause formed part of a large scale assault on interventionist foreign policy. Borchard, a protégé of the great John Bassett Moore, the foremost early 20th-century American authority on international law, viewed himself as the defender of tradition and legality against revolution. 

And this raises a crucial issue. If Borchard had the better of the argument, why did the newfangled distortions come to prevail? As our authors show, the 1940s was the crucial decade in which the new paradigm displaced sound doctrine. According to a prevailing legend at that time, the Senate's refusal to approve the Treaty of Versailles and, with it, American entry into the League of Nations, led to the rise of Hitler and World War II. A minority of the Senate must never again, it was held, be allowed to block the creation of a new world order. 

Here I part company with our authors. On their account, public opinion toward the end of World War II demanded that the Senate relinquish its prerogative, in order to avoid the disaster of another retreat to isolation. Faced with mounting public pressure, and the threat of a constitutional amendment to abolish the treaty clause, the Senate wisely did not insist on its privileges. Instead, the Senate accepted a new arrangement, brought to perfection under Harry Truman. 

Under the new dispensation, the president is free to create binding international agreements, with the consent of a majority of both Houses of Congress. In recent years, the revised system has given us the glories of Nafta and the World Trade Organization. Who could be so crass as to insist on the literal text of the Constitution, faced with such stellar results? 

To my mind, the authors offer a useful account of the de facto abolition of the treaty clause in the post-World War II years. But their evaluation of the process is something else again. For one thing, they adopt, in a completely unscholarly way, the legend that the Senate's rejection of Versailles led straight to Hitler and World War II. 

Since the iniquities of the treaty were the most popular plank of Hitler's party in its rise to power, it is not at once clear why U.S. adherence to the treaty would have stopped Hitler. Further, the authors' account of the Senate's alleged shortsighted behavior relies uncritically on the work of D.F. Fleming, an unbalanced historian for whom the League of Nations was the veritable Second Coming. 

So far as popular pressure against the treaty clause is concerned, our authors ignore the extent to which this was the product of wartime propaganda and hysteria. The widespread popular support during the 1950s for the Bricker Amendment to prevent treaties from extending the scope of federal power beyond the explicit delegation of the Constitution shows that the American people were not so keen for the blessings of internationalism as our authors imagine. 

Our authors do discuss the Bricker Amendment, but interpret the movement behind it too narrowly as concerned only with the precise Constitutional impact of treaties. In fact, it reflected widespread popular discontent with the global crusades of Roosevelt and Truman. If so, one can hardly postulate, as our authors do, a firmly entrenched popular belief that one-third plus one of the Senate must never be permitted to block the road to world government. 

But suppose our authors are correct that by popular consensus, the treaty clause stands rejected. Why is not an amendment required to expunge it from the Constitution, absent which it remains in effect? To our authors, it is "formalistic" to insist on such niceties. The text of the Constitution lacks fixed meaning. 

Although, as they have themselves shown so well, the Framers inserted the treaty clause to guarantee the rights of the states, it is "undemocratic" to insist on this. Instead, why not adopt a "Marshallian" reading in which the federal government can do whatever is not expressly forbidden? (To point out that this position has no relation to the actual views of John Marshall would of course itself be a case of narrow-minded formalism.) 

So long as public opinion approves, our authors contend, the government may freely change the Constitution as it wishes. Popular approval is shown in what the authors term "triggering elections" (p. 85), in which the party that has drastically changed the constitution wins a large majority. 

This account, which we may term the "popular spasm" theory of constitutional change, has been described in Ackerman's We the People, a second volume of which is here threatened (p. 85, n. 393). Those less enamored of the New Deal and Nafta than our authors may be inclined to treat the spasm theory with the scorn it deserves. But in calling attention to the major change in constitutional practice of which Nafta is a prime illustration, the authors perform a valuable service. 



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