Federalist #64

The Powers of the Senate  (Jay)

Jay opens his argument by defending the power the Constitution gives to the president to “…make treaties, provided two thirds of the senators present concur.”  He continues to explain why it is important for the president and the Senate to control this power because they are the men who are “most distinguished by their abilities and virtue and in whom the people perceive just grounds for confidence.”  He believes Senators are well apt to make decisions based on age and other factors stated in the Constitution.  Jay continues to stress if “the president and Senators so chosen will always be of the number of those who best understand our national interest,” then giving these men power will make sure the “treaties may be safely lodged.”  

Jay discusses why the Senate, and not the other branches, should be actively involved in the treaty process.  Jay counters why the House should not have the power to approve the treaties.  He argues that since the members of the House are “constantly coming and going in quick succession” power must rest in the hands of a body that have “sufficient time to become perfectly acquainted.”  Jay then turns his attention to the act of secrecy needed with the creation of treaties and how this level of secrecy might not be achieved in the House.  For example, the president could require “perfect secrecy and immediate dispatch” in regards to a specific treaty.  The president would be able to negotiate his treaty and then, at the right moment, ask for “the advice and consent of the Senate.”  This would allow the president to inform the smaller body of the Senate and not a “large popular assembly” like the House.  Jay contends this would assist a president’s ability to pen a treaty with secrecy to benefit the national good.

Later, Jay objects to the idea of allowing treaties to be “repealable at pleasure,” meaning legislative acts could strike down a treaty.  Jay states, if legislative measures could repeal a treaty, it must be approved by both countries that entered into said treaty.  He believes this clause puts treaties “just as far beyond the lawful breach of legislature acts now as they will be at any future period.”  Jay finishes the paper by stating that people should not fear that the president and Senate using an “[un]equal eye” on all states when proposing treaties.  He believes that the president and Senate having “no private interest distinct from that of the Nation” will assure there will be no neglect on the states.  Jay continues, in regards to corruption, there should be no worries because how could “the president and two thirds of the Senate …ever be capable of such unworthy conduct?”  This idea of mass corruption is “too gross” to even be entertained.  Jay finishes by reiterating the power to make treaties will be in the hands of “men with talent.”