The Treaty-Making Power

THE treaty-making power did not figure as one of the major problems of the convention which drafted our national Constitution, nor of the state conventions which considered that instrument, though it was in each instance the subject of debate. During the years which have since elapsed the American public have often been deeply interested in the provisions of particular treaties, but have not appeared to be much concerned with the constitutional questions involved in their making and enforcement. However, these questions have from time to time stirred executive and legislative members of our government and those whose writings are directed to the constitutional field. Such persons have often held distinctly variant views as to the proper cooperation of President and Senate in the making of treaties. They have also differed as to the scope of the treaty-making power in relation to those powers of legislation granted to Congress by the Constitution and the necessity of cooperation by the House in putting treaty provisions into effect, as well as to the right of the federal government to deal by treaty with subjects which fall within the ordinary scope of the legislative powers reserved to the several States. Here are problems of government of much interest and of really great importance. It is worth while to consider the proper interpretation of the Constitution on these points, what the practices have been, and how our present system of treaty making is working. On one point there has been unanimity of opinion from the days of the Continental Congress, namely, that the treaty-mak ing power must reside solely in the national government. The Continental Congress had no express authorization to enter into treaties, but even before the Declaration of Independence it did not hesitate to assume that it was authorized to exercise this power by implication from its character as the only national organ which had been set up to deal with external affairs, and from its power to direct the war for independence. On June 12, 1776, it chose a committee to prepare a plan of treaties to be proposed to foreign Powers, and in 1778 treaties of commerce and alliance with France were ratified by the Congress, apparently without any thought of submitting them to the several States

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