The Senate floor may be empty, but debate over the New START Treaty continues. Dismissing calls for debate as petty partisanship, many on the left urge a quick vote on the treaty. The treaty’s proponents fail to appreciate the Senate’s constitutional role in the treaty-making process.
In Article II, Section 2, the Constitution grants the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” James Wilson explains, “Neither the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people.” In Federalist 64, John Jay praises the treaty-making process that relies on both the President and the Senate: “We have reason to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made.” Thus, both the executive and legislature are essential to making treaties “law of the land.” But what does “Advice and Consent” mean in practice?
One of America’s earliest treaties, the Jay Treaty (negotiated by Jay himself), provides a great model for Senators today. In 1794, a war raged between Great Britain and France, and the British violated American neutrality by capturing U.S. commercial ships. The hotly debated Jay Treaty of 1794 averted a potential war with Great Britain and encouraged commercial relations between the two countries.
Upon receiving the Jay Treaty, Washington duly presented it to the Senate for advice and consent. He did not assume senators would simply rubber-stamp the measure. The Senate, in turn, did not shirk its constitutional responsibility—after much deliberation, the treaty barely passed with a vote of 20 to 10. Interestingly, Washington provided the Senate with the entire negotiating record—but he later denied the same request from House of Representatives. After all, the House lacks a constitutional role in the treaty process.
As Marion Smith highlights in his paper “Remember the Jay Treaty: START Behaving Like Senators,” the Senate has a serious role in the treaty-making process. Throughout history, treaties have been made, considered, ratified, and yes—some have been rejected. Today’s Senate should take a cue from the Jay Treaty. New START contains a number of ambiguities and clauses that could potentially compromise our missile defense system and therefore our national security. As such, senators must not hastily rubber-stamp the document. Rather, they should deliberate upon the treaty and refuse consent until they can be wholeheartedly confident of its worthiness to become “supreme law of the land.”
Theresa Smart is currently a member of the Young Leaders Program at the Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/departments/ylp.cfm
