CHAPTER 1 OVERVIEW: INTENT OF FRAMERS Admittedly, treaty abrogation is a rather novel subject. There are virtually no court cases and very few academic papers on the subject. What we do have to go on is our history as a Republic, several statements by the Founding Fathers, and common sense. From these, my own reading of the Constitution is as follows: No president can terminate a treaty unless he first obtains the consent of Congress. The Constitution demands a role for Congress in the abrogation of treaties, either in the form of joint action by the President and two-thirds of the Senate, or by the President acting together with both Houses of Congress. Any President who would violate the Constitution on such a major matter as breaking faith with the nation's treaty obligations would run the risk of impeachment. In Foreign Affairs and the Constitution, one of the few works to consider the question, the noted authority Louis Henkin states: In principle, one might argue, if the Framers required the President to obtain the Senate's consent for making a treaty, its consent ought to be required also for terminating it, and there is eminent dictum to support that view. Yet, Henkin adds: In any event, since the President acts for the United States 4 It is true the President could, under his power of general control over foreign policy, effectively weaken the credibility of our national commitment under a defense treaty, such as NATO, by ordering a withdrawal of most American military forces from the foreign area involved, but he cannot unilaterally destroy the international legal obligations of our country under a formal treaty without the consent of the Senate or Congress. Indeed Henkin does not claim the President can legally terminate or violate treaties. He writes only that the President has the ability to "effectively" breach treaties. This distinction would be of critical importance in any impeachment proceedings instituted by a Congress which considered the President to have violated the limits of his constitutional discretion. It also would have overriding Louis Henkin, Foreign Affairs and the Constitution (Mineola, N.Y.: Foundation Press, 1972), p. 169. weight in any judicial action challenging the legal validity of the President's purported denunciation or abrogation of a treaty. In observing that the Senate has not "established its authority" to join or veto the President, Henkin is no more than restating the fact that there has not yet been a definitive court decision squarely settling a conflict between the Executive and Senate in the Senate's favor. Henkin would agree, I presume, that it is for the judicial branch to say what the law is, not for the President to create law by fiat until the courts speak. And, as we shall see, there is no basis in historical practice for claiming the President has established his authority to denounce or abrogate treaties without legislative participation in his deci-sion. To the contrary, the overwhelming weight of precedents supports a role for the Senate or Congress in treaty abrogation. The records of the Constitutional Convention and the State ratifying conventions contain little discussion of how a treaty is to be rescinded. But it is well-known that the Framers were concerned with restoring dependability to our treaties and were anxious to gain the respect and confidence of foreign nations. It would hardly instill confidence in other nations if a single officer of our government could abrogate a treaty at will without any check from another branch of government. Also, it is beyond dispute that the Framers were worried the treaty power could be exercised to damage sectional interests. Repeated flareups occurred at the Constitutional Convention in which various delegates expressed fears that their region might be harmed if treaties could be easily made. In particular, treaties of commerce, peace and alliance were mentioned. Spokesmen for the western settlers were afraid navigation rights on the Mississippi would be given away by a treaty, and George Mason suggested the treaty-making power could "sell the whole country" by means of treaties. Thus, the Framers sought to give each section of the country an influence in deciding upon treaties because of their possible adverse effect upon strong economic or political interests of particular States or areas. It is logical to assume the Framers were as interested in protecting these same regional interests by making it difficult to revoke useful treaties as they were in protecting those interests by guarding against harmful treaties. George Mason alluded to this situation when he warned against allowing one treaty to abridge another by which the common rights of navigation had been recognized to the United States. This is not to say that the Framers would have been as excited about a defense treaty with a small republic 6,000 miles away as they were over treaties involving local fishing or boundary rights, but it is to indicate that the 1954 treaty and all other U.S. treaties are protected by the same procedural safeguard as those treaties about which the Framers were especially sensitive. Since the text of the Constitution makes no distinction between different groups of treaties-it does not single out those commercial or boundary treaties, which the Framers For example, C. C. Pinckney, a member of the Federal Convention, explained before the South Carolina legislature during the ratification process that South Carolina, "considering the valuable produce it has to export, is particularly interested in maintaining the sacredness of treaties." J. Elliott, Debates in the Several State Conventions on the Adoption of the Federal Constitution (5 vois., Philadelphia: J. B. Lippincott, 1861), IV, 279. [Hereinafter cited as Elliott's Debates.] did not want to have discarded without the check of legislative deliberation, from treaties of all other kinds-the obvious conclusion is that treaties of whatever nature are covered by the same protective mantle before cancellation. If any one group of treaties is secured against repeal without legislative consent, then surely all other treaties enjoy the same security absent any textual or historical evidence to the contrary. All treaties were to be dealt with in the same way. Proof that the Framers means for treaties to be kept and not broken at pleasure is found in their emphasis on gaining respect for the new nation among other countries by being faithful to our treaties. James Madison, John Jay and James Wilson each recognized that the ease with which treaties could be and were being broken under the Articles of Confederation was a major defect causing injury both to our respectability and power abroad. Madison, in the preface to his notes on debates in the Constitutional Convention, specifically identifies this failing as being one of the deformities of the Articles which the Constitution was designed to correct. John Jay pinpoints this disease in number 22 of The Federalist Papers. Wilson regarded violation of the "sacred faith of treaties" as "wicked" and contrary to our interests in gaining respect among other nations. Thus, the Framers wanted to make it more difficult to violate treaties, not easier. Surely they would not have attempted to remedy the fault by substituting for the previous system one that was equally susceptible to abuse by a single official as the earlier one had been to the whims of individual states Another sign of the purpose of the Framers is in their creation of a system of checks and balances. In this age of concern about what is described as the Imperial Presidency, it is remarkable that anyone would contend the President is unchecked and unaccountable in a matter of such grave importance as breaking our treaties with other countries. We have seen that they wanted the nation to keep its treaties. Therefore, it is difficult to believe that the Framers, who created the President and Senate as checks upon each other in completing a treaty, did not intend a similar check in the reverse situation, the revoking of a treaty. As the scholar-jurist, Supreme Court Justice Story wrote in his Commentaries on the Constitution of the United States in 1883: It is too much to expect, that a free people would confide to a single magistrate, however respectable, the sole authority to act conclusively, as well as exclusively, upon the subject of treaties... there is no American statesman, but must feel, that such a prerogative in an American president would be inexpedient and dangerous. The check, which acts upon the mind from the consideration, that what is done is but preliminary, and requires the assent of other independent minds to give it a legal conclusiveness, is a restraint which awakens, caution, and compels to deliberation." 6 Robert G. McCloskey, ed.. The Works of James Wilson (2 vols., Cambridge: Belknap Press of Harvard University Press, 1967), I, 166-167. 7 Joseph Story, Commentaries on the Constitution (3 vols., Boston: Hilliard, Gray & Co., 1833), I, 359. The same fundamental principle that guided the Framers in providing that the President can make treaties only with the added deliberation called for when a branch of the legislature must jointly decide the question applies with equal force to the power of annulling treaties.. To use Story's words about treaties, "this joint possession of the power affords a greater security for its just exercise, than the separate possession of it by either [the President or Senate]." 8 In my opinion, the Framers assumed the President would not attempt to break a treaty on his own, since Article II of the Constitution clearly requires that the President "shall take care that the laws be faithfully executed." In other words, the President must uphold the laws because the Constitution tells him to do so. As we all know, Article IV of the Constitution spells out the fact that a treaty is every bit as much a part of "the supreme Law of the Land" as a statute is. Therefore, the Framers undoubtedly expected future Presidents to carry out treaties in good faith and not to break them at their pleasure. It is true the President is "the sole organ of the nation in its external relations, and its sole representative with foreign nations." So said John Marshall in 1800 as a member of the House of Representatives. Marshall's quote has been recited by federal courts on many occasions. At most, however, in the context of unmaking treaties this means it is the President who must communicate the message notifying another country that a treaty is void, and, as we shall see, even this much was denied by the 5th Congress which enacted a statute annulling threeFrench treaties without providing for any notice by the President. It does not mean the President alone can make the decision to give that notice. Surely the President's implied power over foreign relations does not give him power to repeal the express provision of the Constitution that requires him to faithfully execute the laws. Nor does it override the system of balance of powers and accountability that the Framers have so carefully imbedded elsewhere in the Constitution. The people would lose the security of deliberation upon the subject of unmaking treaties, no less than they would lose that security in the making of treaties, if no check by Congress or the Senate were put upon the power of termination. The general rule might be stated as follows: As the President alone cannot repeal a statute, so he alone cannot repeal a treaty. My colleagues in the Senate will find the truth of this expressed in a book that most of us keep on our desks, the Rules and Manual of the Senate. Our rules still include a precedent set forth by Thomas Jefferson, who compiled the first manual of rules and practices of the Senate when he was Vice President of the United States. Jefferson writes: "Treaties being declared equally with the laws of the United States, to be the Supreme Law of the Land, it is understood that an act of the legislature alone can declare them infringed and rescinded." This also was the belief held by James Madison, who wrote in 1791, less than four years after the Constitutional Convention, of "the same authority, precisely, being exercised in annulling, as in making, a treaty." io 10 Historical practice supports Madison and Jefferson. Far more often than not the Senate, or the whole Congress, has exercised power to approve the termination of treaties. As a matter of fact, Presidents have usually come to Congress for its approval before giving notice of withdrawing from any treaty. There are exceptions, but none supports a wide open power of the President to annul any treaty he wishes. In particular, the United States has never repudiated a defense treaty with a friendly nation. Nor has any President terminated a treaty that was not breached by the other party, was not in conflict with or supplanted by a later Act of Congress or another treaty, or that did not become impossible to perform due to circumstances not of our own making. 10 Philip R. Fendall, ed., Letters and Other Writings of James Madison (4 vols., Philadelphia: J. B. Lippincott, 1865), I, 524. |