MUST INTERNATIONAL DEALINGS BE THROUGH EXECUTIVE AGREEMENTS?
By ED. GOSSETT, Representative from Texas
Delivered over National Broadcasting Corporation System from Washington, D. C., May 5, 1944
Vital Speeches of the Day, Vol. X, pp. 556-558.
I WANT to thank the National Broadcasting Company for giving me this time to discuss a matter which many serious thinking Americans believe to be vital to the future peace and security of this country.
With reference to treaties, the Constitution of the United States provides that the President shall have power "by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." This phrase "provided two-thirds of the Senators present concur" is the stump on which most of our important treaties have
been wrecked. The great men who wrote the Constitution disagreed on this provision. The eminent jurist James Wilson, wise old Benjamin Franklin, and other able members of the Convention opposed this two-thirds requirement for treaty ratification. To permit a minority of one-third plus one of the Senate to defeat treaties was even then not in keeping i> with democratic ideals. This provision has been properly called the great mistake of the Constitution.
The two-thirds rule was written into the Constitution as a compromise between the large-state group and the small-state group. Of the 13 states then in the Union, seven of them had only a fractional part of the entire population and considered this provision a matter of defense against large-state domination. Within 25 years after the adoption of the Constitution this reason for the rule ceased to exist. The reason the House of Representatives was denied participation in the ratification of treaties is given in "The Federalist" in this language:
"Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and dispatch, are incompatible with the genus of a body so variable and numerous."
If this strange reasoning were ever sound, it has long since ceased to be supportable. The Senate certainly does not act in secrecy and seldom with dispatch. In fact, there are some who now contend, with great logic, that the power to ratify treaties should be left exclusively to the House, without Senate participation whatsoever. The House is closer to the people, it more nearly reflects the popular will, its members are elected each two years on a basis of population, and under the rules of the House delay and filibuster are impossible. On the other hand, Senators are elected for six-year terms. A Senator representing only a hundred and ten thousand people, as in the case of Nevada, has a voice equal to a Senator representing thirteen million people as in the case of New York; while under Senate rules of procedure a small minority can filibuster any measure to death, even though it has the overwhelming support of the American people and, in fact, of the membership of the Senate itself.
Briefly, how has the two-thirds rule worked in practice? With one or two possible exceptions, no treaty of great consequence was ever ratified by the United States Senate, while many treaties of importance have been destroyed through Senate procedure and because of the two-thirds rule. In 1824 Secretary of State John Quincy Adams negotiated a treaty with Great Britain for the suppression of slave trade. The treaty was repudiated by the Senate with sad effect upon American history. In 1844 a treaty for the annexation of Texas to the Union was defeated in the Senate. President McKinley was unable to secure the annexation of Hawaii by treaty.
In both these cases presidents were forced to resort to the subterfuge of joint resolutions in lieu of the Constitutional process of treaty ratification. If Texas had not been annexed at least one-third of our present domain would now be foreign soil. If Hawaii had not been annexed, Jap soldiers might now be righting on this continent. But back to the record.
In 1897 the Olney-Pauncefote treaty, which provided for the arbitration of disputes between this country and Great Britain, although it received a vote of 43 ayes to 26 nays, failed of ratification in the United States Senate and resulted in much hard feeling between this country and Great Britain. Again, President McKinley, thinking to avoid trouble in securing Senate ratification of the treaty ending the Spanish-American War, appointed three Senators from the Foreign Relations Committee on the commission to draw up the treaty. Notwithstanding Senate representation on the commission, notwithstanding the fact that we dictated the terms of that treaty, ratification was secured in the Senate only after a month of torrid debate and by the slim margin of one vote. About this time John Hay, one of our most able Secretaries of State, had this to say of the Senate's power over treaty ratification:
"The United States is rapidly coming to be regarded by the other great Powers as a nation which is not able to make a treaty. We have been trying to conclude important international agreements during the past fifteen years, but have seen one after another of them go to wreck in the Senate. It is needless to enumerate the long and melancholy list. Whether the President was Cleveland or Harrison or McKinley, whether the negotiations were Democratic or Republican, the power of the Senate to ratify treaties has been mainly exercised as the power to kill treaties. Three valuable conventions with Great Britain have been broken on the Senate's veto. The Chief of State has made treaties with France and Germany, but the Senate has said with a sneer, 'They reckon ill who leave me out,' and has brought the whole work to the ground. With or without intention, we seem to the world to have stripped ourselves of a leading attribute of sovereignty—the power to make treaties."
In 1904 Theodore Roosevelt abandoned entirely the submission of nine treaties of arbitration because he feared the two-thirds rule necessary for Senate ratification.
In 1927 a treaty of amity and commerce between this country and Turkey received a vote of 50 ayes to 34 nays and failed of ratification. At different times Presidents Harding, Coolidge, and Roosevelt urged American adherence to the World Court, yet none could secure the necessary two-thirds vote in the United States Senate.
But the all-time classic example of the futility of the two-thirds rule, the one about which whole libraries have been written, is the Senate consideration of the Versailles Treaty and of the League of Nations. Because of the shrewd and determined opposition of one or two Senators operating under the two-thirds rule, the treaty of Versailles was repudiated and the League of Nations doomed to failure.
Senator Watson, in a brazen confession, tells of a conversation with Senator Lodge in 1919 during their conspiracy to destroy Wilson and the League. Watson told Lodge that 80 per cent of the American people were in favor of adherence to the League, that 80 per cent of the ministers of America were advocating it from their pulpits, and that the League could not be defeated. To this Senator Lodge replied that he did not expect to defeat the League by frontal attack but by the indirect method of reservation and delay. After many months of debate Senator Lodge was able to attach to the proposed treaty 14 separate and distinct reservations. On that fateful day March 19, 1920, a final vote was taken in the Senate. 49 voted aye, 35 voted nay. A minority had defeated the majority. Isolation became our foreign policy.
Students of the Senate debate on the Versailles Treaty generally agree there were four major reasons why a two-thirds vote in the Senate for ratification of the Treaty could not be secured. Incidentally, these are continuing reasons, regardless of who the president is or who the senators are, and because of these reasons one can safely predict that Senate ratification of any treaty of great consequence cannot be obtained.
Categorically, these four reasons are:
First, party politics. A Senator may represent a state with racial or religious strains opposed to a particular treaty.
Second, Senatorial pride and prerogative. Senators cooperate with each other and are jealous of the power and dignity: of the Senate. For example, a treaty ceding the Isle of Pines to Cuba was held up in the Senate for 21 years, although urged by all presidents, although reported favorably by all Foreign Relations Committees, although favored by the overwhelming majority of the Senators, simply because first one Senator then another would ask and receive delay for one reason or another.
Third, hatred of the President. When any President has been long in office, a distrust of, a dislike for, and sometimes a positive hatred of him will grow up in the hearts of some Senators.
Fourth, a desire to return to isolation. There will always be a few Senators who honesty believe that we can live unto ourselves and should have no agreements with other nations.
Twenty years before he became president, Woodrow Wilson referred to the "treaty marring" power of the United States. While President of the American Bar Association John W. Davis, in condemning the two-thirds rule, said it does not "contribute to national influence or prestige or safety that the process of ratifying or rejecting treaties should degenerate into an effort to discover some qualifying formula acceptable to the minority."
From President Washington to President Franklin Roosevelt, from Secretary of State Jefferson to Secretary of State Hull, all Presidents and all Secretaries of State have had heart-breaking experiences with the two-thirds ratification rule in the Constitution. Without doubt all would testify positively that no good and much harm has resulted from this rule, and that it has always been a source of irritation, embarrassment, and injury to this government.
Ninety-five per cent of all patriotic societies and of all religious organizations in America have gone on record urging American participation in some form of postwar collaboration for the prevention of war and the preservation of peace. Both branches of the Congress have gone overwhelmingly on record for postwar collaboration. The Secretary of State and the President have spoken positively on this subject. All leading candidates for President now condemn isolation as a National policy. Notwithstanding this overwhelming sentiment in the private and official life of America, that the mistakes of 1920 be avoided, history is almost certain to I repeat itself. Like causes will produce like results.
A majority of the Congress can declare war. Why should not a majority of the Congress be able to declare peace?
Shall we continue to have minority control of our treaties? Must our international dealings be carried on through executive agreement without participation of the elected representatives of the people? Finally, are we to lose the next peace on a technicality?
Can anything be done about this, you ask. Yes; there is now pending in the Congress a number of resolutions seeking to amend the Constitution by providing that treaties be ratified by simple majorities of the House and the Senate. You might write your representatives in the Congress urging their support of such a resolution.
Our great capital, the City of Washington, is now the hub of the universe. The representatives of the nations will probably meet here to draw up the treaties that end this global war. Following the signing of these treaties our representatives will doubtless play a leading role in the formulation of some kind of association, some new League of Nations for the preservation of peace. After securing the agreement and consent of other nations to these documents, will a determined minority in the United States Senate again say, we'll have none of it? Will the greatest and most powerful nation in the world then be rendered shameful and impotent before all mankind? The Constitution should be Amended in order to avoid such a possible and tragic catastrophe, and in order to facilitate America's rightful leadership in world affairs.