The Constitution - Constitutional convention

The Constitutional Convention was called for the purpose of correcting the deficiencies of the Articles of Confederation. Chief among the deficiencies were those that weakened the international position of the United States. Accordingly, few issues rivaled in importance the maintenance of national security and the conduct of foreign affairs, and thus the search for an efficient foreign policy design was a primary goal and an animating purpose of the convention.

There was broad agreement among American leaders that the foreign affairs flaws of the Articles of Confederation stemmed not from the absence of an independent executive but from the lack of authority granted to Congress. The Articles had created an ineffective national government that lacked coercive power over the states. Indeed, the outstanding characteristic of the Articles—state sovereignty—was reflected in theory by the fact that the governing document did not capitalize "united states," and in practice by the refusal of states to honor their federal obligations.

Contemporaries discussed three particular weaknesses. First, a depleted treasury undermined national defense and rendered the young Republic vulnerable to its enemies and adversaries. The Spanish in the South, British in the Northwest, and Indians throughout the land represented an ongoing threat. Second, without authority to regulate foreign commerce, Congress lacked bargaining power in its attempt to strike favorable trade agreements. Third, and most important, Congress had no power to prevent states from violating treaties negotiated in the name of the United States, which meant that individual states could undermine the reputation, integrity, and security of the nation. Indeed, the pervasive infidelity of the states to the international obligations and treaty agreements of the United States subverted the ability of the union to maintain its foreign credit and position as a sovereign nation. The frequent treaty violations, according to James Madison, justly known as the father of the Constitution for his role as its chief architect, constituted one of the principal "vices of the political system of the United States." They led Alexander Hamilton to lament in Federalist No. 22: "The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government?"

The inadequacies of the Articles—mainly the debilitating weakness of the national government—supplied a critical focal point for the Framers' deliberations. The convention's decision to create the supremacy clause was a pivotal move, for the declaration in Article 6 that, "This Constitution, and the Laws of the United States and all Treaties, … shall be the Supreme Law of the land, … any Thing in the Constitution or Laws of any State to the Contrary notwithstanding," signified the end of "state sovereignty" and enabled the federal government to wrest control of foreign policy from the recalcitrant states. While the supremacy clause certainly had profound implications for areas other than diplomacy, there is no exaggeration in the observation that it provided the sine qua non of a vital and vibrant national foreign policy.

The Articles of Confederation also supplied, in some key respects, a point of departure. The Articles had vested executive as well as legislative authority in Congress. Article 6 granted Congress control over the conduct of foreign policy, and Article 9 granted it "the sole and exclusive right and power of determining on peace and war." But the Philadelphia convention had embraced the principle of separation of powers, and now the delegates were forced to fashion a division of authority between the legislative and executive branches.

The Framers might have adopted the English model for reasons of familiarity, tradition, and simplicity; like other nations, Britain concentrated virtually unlimited authority over foreign policy in the hands of the executive. For the Framers were of course thoroughly familiar with the vast foreign affairs powers that inhered in the English Crown by virtue of the royal prerogative. Sir William Blackstone, the great eighteenth-century jurist, explained in his magisterial four-volume work Commentaries on the Laws of England (1765–1769) that the king exercised plenary authority over all matters relating to war and peace, diplomacy, treaties, and military command. Blackstone defined the king's prerogative as "those rights and capacities which the King enjoys alone." The monarch's prerogatives, "those which are 'rooted in and spring from the King's political person,'" include the authority to send and receive ambassadors and the power to make war or peace. The Crown, moreover, could negotiate "a treaty with a foreign state, which shall irrevocably bind the nation," and he could issue letters of marque and reprisal, which authorized private citizens to perform military actions on behalf of the nation. The king, according to Blackstone, was "the generalissimo, or the first in military command," and he possessed "the sole power of raising and regulating fleets and armies." In the exercise of this lawful prerogative, Blackstone explained, the king "is, and ought to be absolute; that is, so far absolute that there is no legal authority that can either delay or resist him" (vol. 2, pp. 238–250).

The Framers' rejection of the English model could not have been more emphatic. Their discussion of foreign affairs in Philadelphia began on 29 May 1787 with the introduction of the Virginia Plan, which provided for the creation of an executive that, in addition to "a general authority to execute the national laws … ought to enjoy the Executive rights vested in Congress by the Confederation." The apparent clarity of the proposal was illusory, however, since the Articles of Confederation had created only a single branch of government—Congress—and had not attempted to categorize powers as legislative, executive, or judicial. As a consequence the vague proposal allowed for the possibility that "Executive rights" might be interpreted to include the full panoply of foreign affairs and warmaking powers exercised by the English king—the authority to determine war and peace, and the powers of sending and receiving ambassadors and entering treaties and alliances, among others—all of which the Articles of Confederation had granted to Congress.

The prospect that the Virginia Plan might involve a transfer to the president of these broad powers provoked alarm in the convention barely a week into the proceedings, triggering a release of the Framers' deep-seated aversion to unilateral executive power in foreign affairs. In a critical debate on 1 June, Charles Pinckney of South Carolina stated that he favored a vigorous executive but feared that the Virginia Plan's proposal to place in a newly created executive the "Executive rights vested in Congress" might include its authority over decisions of war and peace, which, if delegated to a new executive, would make that office a "monarchy of the worst kind," an "elective one."

Pinckney's preference for congressional control over matters of war and peace was supported by his fellow South Carolinian John Rutledge, who argued against vesting such authority in the executive. James Wilson of Pennsylvania, second only to Madison as an architect of the Constitution and a future member of the U.S. Supreme Court, sought to assuage Pinckney's concerns by pointing out that "the prerogatives of the British Monarch" did not properly define the executive powers. Those prerogatives, he explained, included some powers that were of a legislative nature, among them war and peace. In fact, the only powers that Wilson considered to be "strictly executive" were enforcing the laws made by the legislature and the choice of officers not to be appointed by the legislature. Wilson agreed with Roger Sherman of Connecticut, who believed the executive was merely an agent of the legislature, which ought to retain authority over matters of war and peace. In the debate that day every speaker who addressed the issue shared that opinion, including Madison, who reminded the convention that as a matter of definition, executive powers did not include war and peace. Moreover, the delegates, filled with misgivings and apprehension, voted to delete the ambiguous proposal to vest in the president the "Executive rights vested in Congress by the Confederation." Later the Framers would embrace Madison's proposal to fix the extent of the executive powers through careful enumeration.

Wilson's reference to the "prerogatives of the British Monarch" captured the Framers' greatest fears about unilateral executive authority in foreign affairs. There was a deep worry in the convention's discussions about executive power, epitomized by Edmund Randolph's characterization of it as the "foetus of monarchy." The Framers' trepidations about executive power were greatly influenced by the constitutional crises and political convulsions of the seventeenth-century English Civil Wars. The absolutist claims of the Stuart Kings and the abuse of authority by manipulative ministers had hardened their view toward the executive. Their deep concern about executive abuse of power was not merely a reflection of their perceptive readings of history but also an out-growth of their own experience, for the fear of power resonated from the colonial period. These pervasive fears, doubts, and concerns about executive power, which conduced to preclude, in the minds of the Framers, any unilateral presidential power over foreign affairs, were summed up by Hamilton in Federalist No. 75: "The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the disposal of a magistrate created and circumstanced as would be a president of the United States."

Behind the Framers' emphatic rejection of the British model, rooted in a deep aversion to an unrestrained, unilateral executive power, lay an equally emphatic commitment to the republican principle of collective decision-making, grounded in the belief that the conjoined wisdom of the many is superior to that of one. The Framers perceived a broad equatorial divide between the hemispheres of monarchism and republicanism, between the values of the Old World and the those of the New World. The convention's deliberate fragmentation of powers relating to diplomacy, treaties, and war and peace, and the allocation of the various foreign affairs powers to different departments and agencies of government, reflected the Framers' determination to apply the doctrines of separation of powers and checks and balances, the principle of the rule of law, and the elements of constitutionalism to the realm of foreign relations as rigorously as they had been applied to the domestic domain.

This critical decision represented a bold departure from the prevailing wisdom of the day, which urged the unification and centralization of foreign relations powers in the executive and warned that the separation of those powers would invite chaos, disorder, and even disaster. But the Framers brought a fresh outlook, a new vision, to foreign policy, one that recognized that the conduct of foreign policy includes some elements that are primarily legislative in nature, others that are essentially executive, and still others characteristically judicial. In Federalist No. 47, Madison observed that "treaties with foreign sovereigns" assume, once they are made, "the force of legislative acts." The Constitution, moreover, characterizes the power to declare war as legislative, and the power to conduct it as executive. The supremacy clause imposes upon judges the duty to enforce treaties as the law of the land. The Constitutional Convention discarded the British model as obsolete and inapplicable to the republican manners of the United States.

The purpose of this new constitutional arrangement for foreign affairs, a distinctively American contribution to politics and political science, was to require and implement collective decision-making—joint participation, consultation, and concurrence—by the political branches in the formulation, conduct, and management of the nation's foreign policy. The Framers supposed that the infusion into the foreign policy process of checks and balances would maintain the constitutional allocation of powers and, therefore, prevent executive unilateralism, aggrandizement, and usurpation. They believed, moreover, that the structure of shared powers in the conduct of international affairs, bottomed on the premise and promise of legislative deliberation, would produce wise policies and, in the words of Wilson, "a security to the people," for it would afford in Congress an airing of the various political, economic, and military interests that were bound up in the nation's external relations.

But two centuries of history and practice have witnessed the virtual eclipse of the Framers' blueprint for foreign affairs. The premise of congressional primacy has given way to executive dominance, and the promise of joint participation has been subverted by presidential unilateralism. In the context of foreign affairs, the United States has been marching backward, for the president has largely secured the prerogatives of the English Crown that the Framers denied to him in the Constitutional Convention, and which the nation had roundly condemned since the writing of the Declaration of Independence. In truth, the rise of presidential hegemony, so ably captured by the title of Arthur Schlesinger Jr.'s influential book The Imperial Presidency, is the product of a regrettable mixture: one part usurpation and two parts acquiescence. Presidential aggrandizement of foreign affairs powers has been aided and abetted by a quiescent Congress, seemingly indifferent to the usurpation of its powers, and by a judiciary that has exhibited an attitude of deference to the executive, as reflected in its refusal to restrain presidential adventurism abroad.

The presidential monopoly of American foreign relations finds its justification not in constitutional norms but in the claims of necessity and national security, pleas that have flown high in the Cold War period and beyond, as the values of unity, speed, and dispatch have replaced the values of deliberation, concurrence, and consent. The growth of presidential power has been conspicuous in the aggrandizement of the war power and in the assumption of the authority to make international agreements, often in disregard of the principles and processes that govern the treaty power. It also has been reflected in the exercise of the president's duty to receive ambassadors, and in the executive's penchant for secrecy and the control of information.

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