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  • Whatever Happened to Advice and Consent?

    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

    Posted in First Principles [slideshow_deploy]

    4 Responses to Whatever Happened to Advice and Consent?

    1. Billiam, NE Wisconsi says:

      It has been a long time since most of those in Congress as a whole have given a whit about what they are Constitutionally bound to do. One of the worst Amendments ever passed was the one that allowed for the popular election of Senators. This, along with public apathy, allowed many to become little more than political whores, like their cousins in the House. When they refuse to even read or seriously debate what they're about to vote on, or refuse to do their duty with regards to war declarations or stopping the President, Republican or Democrat, from by-passing them, they have become little more than betrayers to what this Nation once stood for.

    2. West Texan says:

      Theresa is definitely on the correct path. We need her fellow young leaders to guide our nation back toward its federalist design and principles. Only then will we realize sound national security, states’ prosperity and individual rights. Out of the way Barry, Harry and Nancy as we’ve got real custodial leadership ready to remove your overreaching ideological madness from America’s seat of limited powers.

    3. Bob Farquhar, Bonair says:

      A very informative article about ratification of treaties. I agree that everything the Senate or House vote on should be read completely and debated, not held up for political reasons.

      My only objection to this article is the inaccurate statement about New START, Treaty 111-5. Sufficient Senate Armed Services and Foreign Relations testimony has been given showing no impact on missile defense whatsoever. To say otherwise is like arguing that Russia "might" put ICBMs on bombers.

      Once the Senate returns after fall recess I'd expect that New START would be high on their agenda given that nuclear security is at stake. We've had no treaty for verification since START II expired Dec 5, 2009, over 255 days now that the U.S. has had no boots on the ground in Russia.

      So yes, I hope New START is read and debated, I've read it myself. I'd expect that it be ratified by the same bi-partisan majority given previous START and SORT treaties.

      The Cold War is over. We need to continue the process of cooperatively working with Russia in mutually reducing nuclear weapons so we can stem proliferation and prevent nuclear terrorism, the two greater threats according to the Nuclear Posture Review..

    4. voteright, Illinois says:

      I agree that the real problem is that the Senators are popularly elected; and that the 17th Amendment should be repealed. If the 17th Amendment would not have been in place, Obama would never have become a Senator & we would not have the Economic & Political disaster. It is also likely that Clinton would have been impeached & removed for perjury because the Senators would not have been beholden to a political party and thus be independent of the influences of political party(s).

      The Advice & Consent clause also has been violated in the appointment (by Executive Order) of the numerous Czars.

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