Speech in Congress on the Jay Treaty

March 10, 1796

Mr Madison said that the direct proposition before the House, had been so absorbed by the incidental question which had grown out of it, concerning the constitutional authority of Congress in the case of Treaties, that he should confine his present observations to the latter.

On some points there could be no difference of opinion, and there need not, consequently, be any discussion. All are agreed that the sovereignty resides in the people, that the Constitution, as the expression of their will, is the guide & the rule, to the Government, that the distribution of powers made by the Constitution, ought to be sacredly observed by the respective Departments, that the House of Representatives ought to be equally careful to avoid encroachments on the authority given to other departments, and to guard their own authority against encroachments from the other departments. These principles are as evident as they are vital & essential to our political system.

The true question, therefore, before the Committee, was not, whether the will of the people expressed in the Constitution was to be obeyed, but how that will was to be understood, in what manner it had actually divided the powers delegated to the Government, and what construction would best reconcile the several parts of the instrument with each other, and be most consistent with its general spirit & object.

On comparing the several passages in the Constitution, which had been already cited to the Committee, it appeared, that if taken literally and without limit, they must necessarily clash with each other Certain powers to regulate commerce, to declare war, to raise armies, to borrow money &c &c, are first specifically vested in Congress. The power of making Treaties, which may relate to the same subjects, is afterwards vested in the President and two thirds of the Senate. And it is declared in another place that the Constitution, and the laws of the U States made in pursuance thereof, and Treaties made or to be made under the authority of the U States shall be the supreme law of the land and the judges, in every State, shall be bound thereby, any thing in the Constitution or laws of any State, to the contrary notwithstanding.

The term supreme, as applied to Treaties, evidently meant a supremacy over the State Constitutions and laws, and not over the Constitution & laws of the U States And it was observable that the Judicial authority & the existing laws, alone of the States, fell within the supremacy expressly enjoined. The injunction was not extended to the Legislative authority of the States or to laws requisite to be passed by the States, for giving effect to Treaties, and it might be a problem worthy of the consideration, though not needing the decision of the Committee, in what manner the requisite provisions were to be obtained from the States.

It was to be regretted, he observed, that on a question of such magnitude as the present, there should be any apparent inconsistency or inexplicitness in the Constitution, that could leave room for different constructions. As the case however had happened, all that could be done was to examine the different constructions with accuracy & fairness, according to the rules established therefor, and to adhere to that which should be found most rational, consistent, and satisfactory.

He stated the five following, as all the constructions worthy of notice, that had either been contended for, or were likely to occur:

I. The Treaty power, and the Congressional power, might be regarded as moving in such separate orbits, and operating on such separate objects, as to be incapable of interfering with, or touching each other.

II. As concurrent powers relating to the same objects, and operating like the power of Congress, & the power of the State Legislatures, in relation to taxes on the same articles.

III. As each of them supreme over the other, as it may be the last exercised, like the different assemblies of the people, under the Roman Government, in the form of Centuries, & in the form of Tribes.

IV. The Treaty power may be viewed, according to the doctrine maintained by the opponents of the proposition before the Committee, as both unlimited in its objects, and compleatly paramount in its authority.

V. The Congressional power may be viewed as cooperative with the Treaty-power, on the Legislative subjects submitted to Congress by the Constitution; in the manner explained by the member from Pennsylvania (Mr. Galatin) and exemplified in the British Government.

The objection to the First construction is, that it would narrow too much the Treaty-power, to exclude from Treaties altogether, the enumerated subjects submitted to the power of Congress; some or other of this class of regulations being generally comprized in the important compacts which take place between nations.

The objection to the Second is, that a concurrent exercise of the Treaty, & Legislative powers, on the same objects, would be evidently impracticable. In the case of taxes laid both by Congress and by the State Legislatures on the same articles, the Constitution presumed that the concurrent authorities might be exercised with such prudence and moderation as would avoid an interference between their respective regulations. But it was manifest that such an interference would be unavoidable between the Treaty power & the power of Congress. A Treaty of commerce for example, would rarely be made, that would not trench on existing legal regulations, as well as be a bar to future ones.

To the Third, the objection was equally fatal; that it involved the absurdity of an Imperium in imperio; of two powers both of them supreme, yet each of them liable to be superseded by the other. There was indeed an instance of this kind found in the Government of Ancient Rome, where the two Authorities of the Comitia Curiata, or meetings by Centuries and the Comitia tributa or meetings by tribes, were each possessed of the supreme Legislative power, and could each annul the proceedings of the other: For altho the people composed the body of the meetings in both cases, yet as they voted in one according to wealth, and in the other according to numbers, the organizations were so distinct as to create in fact, two distinct authorities. But it was not necessary to dwell on this political phenomenon, which had been celebrated as a subject of curious speculation only, and not as a model for the institutions of any other Country.

The Fourth construction is that which is contended for by the opponents of the proposition depending; and which gives to the Treaty-power all the latitude which is not necessarily prohibited by a regard to the general form & fundamental principles of the Constitution.

In order to smooth the way for this doctrine, it had been said, that the power to make treaties was laid down in the most indefinite terms; & that the power to make laws, was no limitation to it, because the two powers were essentially different in their nature. If there was ingenuity in this distinction, it was all the merit it could have: for it must be obvious that it could neither be reduced to practice, nor be reconciled to principles. Treaties and laws, whatever the nature of them may be, must in their operation, be often the same. Regulations by Treaty, if carried into effect, are laws. If Congress pass acts relating to provisions in a Treaty, so as to become incorporated with the Treaty, they are not the less laws on that account. A legislative act is the same whether performed by this or that body, or whether it be grounded on the consideration that a foreign nation agrees to pass a like act, or on any other consideration.

It must be objected to this construction therefore that it extends the Power of the President & Senate too far, and cramps the powers of Congress too much.

He did not admit, that the term "Treaty" had the extensive and unlimited meaning which some seemed to claim for it. It was to be considered as a Technical term, and its meaning was to be sought for in the use of it, particularly in Governments which bore most analogy to our own. In absolute Governments, where the whole power of the Nation is usurped by the Government, and all the Departments of power are united in the same person, the Treaty power has no bounds, because the power of the Sovereign to execute it has none. In limited Governments, the case is different. The Treaty power, if undefined is not understood to be unlimited. In Great Britain it is positively restrained on the subjects of money, and dismembering the Empire. Nor could the Executive there, if his recollection was right, make an Alien a subject by means of a Treaty.

But the question immediately under consideration, and which the context & spirit of the Constitution must decide, turned on the extent of the Treaty-power in relation to the objects specifically & expressly submitted to the Legislative power of Congress.

It was an important, & appeared to him to be a decisive view of the subject, that if the Treaty power alone could perform any one act for which the authority of Congress is required by the Constitution, it may perform every act for which the authority of that part of the Government is required. Congress have power to regulate trade, to declare war, to raise armies, to levy, borrow, and appropriate money, &c. If by Treaty therefore, as paramount to the Legislative power, the President & Senate can regulate Trade, they can also declare war, they can raise armies to carry on war, and they can procure money to support armies. These powers, however different in their nature or importance, are on the same footing in the Constitution, and must share the same fate. A member from Connecticut (Mr Griswold) had admitted that the power of war, was exclusively vested in Congress, but he had not attempted, nor did it seem possible, to draw any line between that, & the other enumerated powers. If any line could be drawn, it ought to be presented to the Committee, and he should, for one, be ready to give it the most impartial consideration. He had not, however, any expectation that such an attempt could succeed and therefore should submit to the serious consideration of the Committee, that although the Constitution had carefully & jealously lodged the power of war, of armies, of the purse &c. in Congress, of which the immediate representatives of the people, formed an integral part, yet, according to the construction maintained on the other side, The President & Senate by means of a Treaty of alliance with a nation at war, might make the United States parties in the war, they might stipulate subsidies, and even borrow money to pay them, they might furnish Troops, to be carried to Europe, Asia or Africa, they might even undertake to keep up a standing army in time of peace, for the purpose of co-operating, on given contingences, with an Ally, for mutual safely or other common objects. Under this aspect, the Treaty power would be tremendous indeed.

The force of this reasoning is not obviated by saying that the P & Senate would only pledge the public faith & that the agency of Congress would be necessary to carry it into operation. For, what difference does this make, if the obligation imposed be as is alledged, a constitutional one, if Congress have no will but to obey, & if to disobey be Treason & rebellion against the Constituted Authorities. Under a constitutional Obligation, with such sanctions to it, Congress, in case the P & S should enter into an alliance for war, would be nothing more than the mere heralds for proclaiming it. In fact it had been said that they must obey the injunctions of a Treaty as implicitly as a subordinate officer in the Executive line was bound to obey the chief Magistrate, or as the Judges are bound, to decide according to the laws.

As a further objection to the doctrine contended for, he called the attention of the Committee to another very serious consequence from it. The specific powers, as vested in Congress by the Constitution, are qualified by sundry exceptions deemed of great importance to the safe exercise of them. These restrictions are contained in §IX of the Constitution, and in the articles of amendment which have been added to it. Thus "the migration or importation of such persons as any of the States shall think proper to admit, shall not be prohibited by Congress" He referred to several of the other restrictive paragraphs which followed, particularly the 5th which says that no tax shall be laid on exports, & no preference given to ports of one State over those of another &c. It was Congress also he observed which was to make no law respecting an establishment of Religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, &c. &c. Now if the legislative powers specifically vested in Congress, are to be no limitation or check to the Treaty power, it was evident that the exceptions to those powers, could be no limitation or check to the Treaty power.

Returning to the powers particularly lodged in Congress, he took notice of those relating to war & money, or the sword & the purse as requiring a few additional observations, in order to shew that the Treaty power could not be paramount over them.

It was well known that with respect to the regulation of Commerce, it had long remained under the jurisdiction of the States; and that in the establishment of the present Government the question was, whether & how far it should be transferred to the general jurisdiction. But with respect to the power of making war, it had, from the commencement of the Revolution, been judged & exercised as a branch of the General Authority, essential to the public safety. The only question therefore that could arise, was whether the power should be lodged in this or in that Department of the Federal Government. And we find it expressly vested in the Legislative, and not in the Executive Department; with a view, no doubt, to guard it against the abuses which might be apprehended from placing the power of declaring war, in those hands which would conduct it when declared, and which therefore in the ordinary course of things would be most tempted to go into war. But according to the doctrine now maintained, the United States, by means of an Alliance with a foreign power, might be driven into a State of war, by the President & Senate, contrary both to the sense of the Legislature, & to the letter & spirit of the Constitution.

On the subject also of appropriating money, particularly to a military establishment, the provision of the Constitution demanded the most severe attention. To prevent the continuance of a Military force for a longer term than might be indispensable, it is expressly declared that no appropriation for the support of armies shall be made for more than two years: so that at the end of every two years, the question whether a military force ought to be continued or not, must be open for consideration, and can be decided in the negative by either the House of Representatives, or the Senate's refusing to concur in the requisite appropriations. This is a most important check & security agst. the danger of standing armies, & against the prosecution of a war beyond its rational objects; and the efficacy of the precaution is the greater, as at the end of every two years, a re-election of the House of Representatives gives the people an opportunity of judging on the occasion for themselves. But if, as is contended, the House of Representatives have no right to deliberate on appropriations pledged by the President & Senate, and cannot refuse them, without a breach of the Constitution and of their oaths, the case is precisely the same, and the same effects would follow, as if the appropriation were not limited to two years, but made for the whole period contemplated at once. Where would be the check of a biennial appropriation for a military establishment raised for four years, if at the expiration of two years, the appropriation was to be continued by a constitutional necessity for two years more? It is evident that no real difference can exist between an appropriation for four years at once, & two appropriations for two years each, the second of which the two Houses would be constitutionally obliged to make.

It has been said that in all cases a law must either be repealed, or its execution provided for. Whatever respect might be due to this principle in general he denied that it could be applicable to the case in question. By the provision of the Constitution limiting appropriations to two years, it was clearly intended to enable either branch of the Legislature to discontinue a military force at the end of every two years. If the law establishing it, must be necessarily repealed, before an appropriation could be witheld, it would be in the power of either Branch to keep up an establishment by refusing to concur in a repeal. The construction and reasoning therefore opposed to the rights of the House, would evidently defeat an essential provision of the Constitution.

The Constitution of the U. States is a Constitution of limitations and checks. The powers given up by the people for the purposes of Government, had been divided into two great classes. One of these, formed the State Governments, the other the Federal Government. The powers of the Government had been further divided into three great Departments; and the Legislative department again subdivided into two independent branches. Around each of these portions of power, were seen also, exceptions and qualifications, as additional guards against the abuses to which power is liable. With a view to this policy of the Constitution, it could not be unreasonable, if the clauses under discussion were thought doubtful, to lean towards a construction that would limit & controul the Treaty-making power, rather than towards one that would make it omnipotent.

He came next to the Fifth Construction which left with the President & Senate the power of making Treaties, but required at the same time the Legislative sanction & co-operation, in those cases where the Constitution had given express & specific powers to the Legislature. It was to be presumed that in all such cases, the Legislature would excise its authority with discretion, allowing due weight to the reasons which led to the Treaty, and to the circumstance of the existence of the Treaty. Still, however, this House in its Legislative capacity, must exercise its reason; it must deliberate; for deliberation is implied in Legislation. If it must, carry all Treaties into effect, it would no longer exercise a legislative power: it would be the mere instrument of the will of another Department, and would have no will of its own. Where the Constitution contains a specific & peremptory injunction on Congress to do a particular act, Congress must of course do the act, because the Constitution, which is paramount over all the Departments, has expressly taken away the Legislative discretion of Congress. The case is essentially different where the act of one Department of Government interferes with a power expressly vested in another and no where expressly taken away. Here the latter power must be exercised according to its nature; and if it be a Legislative power, it must be exercised with that deliberation & discretion which is essential to the nature of Legislative power.

It was said yesterday that a Treaty was paramount to all other Acts of Government, because all power resided in the people, and the President & Senate, in making a Treaty, being the Constitutional organs of the people for that purpose, a Treaty when made was the act of the people. The argument was as strong the other way. Congress are as much the organs of the people, in making laws, as the President & Senate can be in making Treaties; and laws, when made are as much the acts of the people, as any acts whatever can be.

It had been objected, that the Treaty-power would be in fact frustrated, if Treaties were to depend in any degree on the Legislature. He thought there was no such danger. The several powers vested in the several Departments form but one Government; and the will of the nation may be expressed thro' one Government, operating under certain checks, on the subject of Treaties, as well as under other checks on other subjects. The objection would have weight if the voluntary cooperation of the different States was to be obtained.

Another objection was that no Treaty could be made at all, if the agency of Congress were to concur, because Congress could not Treat, and their Agency would not be of a Treaty nature. He would not stop to enquire how far a loan of money from a foreign Government, under a law of Congress, was or was not of the nature of a public Contract or Treaty. It was more proper to observe, that the practice in G. Britain was an evidence that a Legislative Agency did not viciate a Treaty. Nay, if the Objection were solid, it was evident that the Treaty lately entered into with that Nation, could never be binding on this; because, it had been laid before the Parliament for its Legislative agency as necessary to effectuate the Treaty; and if that agency was to viciate & destroy the nature of the Treaty on that side, the obligation, on the principle of all contracts, would be dissolved on both sides.

He did not see the utility in this case of urging, as had been done, a particular distrust of the House of Representatives. He thought the President & Senate would be as likely to make a bad Treaty, as this Branch of the Government would be to throw obstructions in the way of a good one, after it was made.

No construction he said might be perfectly free from difficulties. That which he had espoused, was subject to the least; as it gave signification to every part of the Constitution, was most consistent with its general spirit, and was most likely in practice to promote the great object of it, the public good. The construction which made the Treaty power in a manner omnipotent he thought utterly inadmissible, in a Constitution marked throughout with limitations & checks.

He should not at present he said, enter any further into the subject. It had been brought before the House rather earlier than he had expected or than was perhaps necessary; and his observations therefore might not have been as full or as well digested, as they ought to have been; such as they were he submitted them to the candid attention of the Committee.