The Constitution: Treaties

“I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution.” (Thomas Jefferson, a letter to Wilson Cary Nicholas The Works of Thomas Jefferson, September 7, 1803.)

“By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated. It must have meant to except out of those the rights reserved to the states; for surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way.” (Thomas Jefferson, A Manual of Parliamentary Practice, p. 110. 1873.)

“The only constitutional exception to the power of making treaties is, that it shall not change the Constitution.… On natural principles, a treaty, which should manifestly betray or sacrifice primary interests of the state, would be null.” (Alexander Hamilton, The Works of Alexander Hamilton, 1796.)

“[a] treaty cannot be made which alters the Constitution of the country or which infringes any express exceptions to the power of the Constitution of the United States.” (Alexander Hamilton)

“that the treaty power is unlimited and omnipotent and may be used to override the Constitution and Bill of Rights," said Holman, is "a doctrine of recent origin.…” (President of the American Bar Association Frank E. Holman, began a campaign in earnest to protect the rights of Americans from treaty law 1948.)

“[T]hough the [treaty] power is thus general and unrestricted, it is not to be so construed as to destroy the fundamental laws of the state. A power given by the Constitution cannot be construed to authorize a destruction of other powers given in the same instrument.… A treaty to change the organization of the Government, or to annihilate its sovereignty, to overturn its republican form, or to deprive it of its constitutional powers, would be void; because it would destroy what it was designed merely to fulfill, the will of the people.” (Supreme Court Chief Justice Joseph Story, Limitations on the Treaty-Making Power (5th ed. 1891), Commentaries on the Constitution, Section 1508.)

“I do not conceive that power is given to the President and Senate to dismember the empire, or to alienate any great, essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of the delegation.” (James Madison, Debate in Virginia Ratifying Convention, Elliot 3:499-515. June 18, 1788.)

“The treaty power is discussed in The Federalist in Numbers 64 written by John Jay, and 75 written by Alexander Hamilton. It is there clearly indicated that the term ‘treaty’ is used in the Constitution to refer to a bargain or contract between two independent sovereign nations pertaining to subjects that are customarily and traditionally considered to be treaties.

“The concept that under the treaty power the President and two-thirds of the Senators present could surrender American independence was completely inconsistent with the limited extent of the authority the Framers felt should be given to the federal government. How out of harmony with constitutional principles such a concept is becomes even clearer when one considers two particular facts. One is that the colonists had only recently fought a bloody and terrible war to gain their independence. The other is their great suspicion and distrust of public officials. In fact, as is pointed out in Chapter 2 of this work, one of their principal objects in designing the Constitution was to protect the people from improper action of government officials. Guided by these thoughts they surely would not have empowered the President and two-thirds of the Senators present to bargain away American independence without the consent of the people.” (Jerome Horowitz, The Elders of Israel and the Constitution, pp. 134-135. 1970.)

“It has been said we cannot have a world-state without a surrender of some of our sovereignty. This is probably true. But if and when we come to the surrender of that sovereignty, it must be done by an amendment to our Constitution authorizing it, the amendment to be made in the form and manner that we the sovereign people have prescribed in the Constitution itself. Let us not surrender our sovereignty by illegal usurpations by our treaty-making agents. I am speaking of voluntary surrender of sovereignty.…

“It cannot be too often repeated that any suggestion of any doctrine such as this at the time of the Convention, would not only have broken up the Constitutional Convention itself (it would have been treated with…scorn…) but would, having in mind the then temper of the people, also have made the formation of the United States of America under the Constitution an impossibility.…

“The whole of the discussions in the Constitutional Convention itself, in the State Conventions considering the adoption of the Constitution, and in The Federalist, all join in what seems a unanimous voice that the treaty-making power was to extend to the normal incidents of the intercourse and relationship of sovereign nations, and no further.” (J. Reuben Clark, May 29, 1959.)