Anti-Federalists generally worried that the Constitution would give the general government too much power. One area that caused concern was the power to make treaties. Patrick Henry addressed this issue in speeches during the Virginia ratifying convention.
Under the Constitution, the Senate is delegated the power to ratify all treaties that the executive branch intends to make with other countries. For the founding generation, this represented a significant shift in treaty-making authority compared to the Articles of Confederation, which required nine of the 13 states, or a two-thirds majority.
Under the Articles, the decision was made at the state legislative level. The Constitution consolidated that authority into a much smaller number of politicians, with the final decision in the hands of senators in Congress, who were, at the time, elected by the state legislatures.
Patrick Henry pushed back against this power at the Virginia Ratifying Convention, warning it would undermine state sovereignty and potentially lead to treaties that violated individual rights.
On June 18, 1788, he offered a historical incident in the early 1700s in which Russian Ambassador Andrey Matveyev was arrested in England by bailiffs acting on behalf of his creditors. When Czar Peter the Great demanded his release and the arrest of those who had detained him, the Queen said doing so would exceed her authority under the English Constitution. Instead, Parliament passed a law intended to prevent such arrests in the future.
Henry argued that under the Constitution “the President can settle it by a treaty, and have the man arrested, and punished according to the Russian manner.”
“The Constitutions of these States may be most flagrantly violated without remedy. I say again, that if you consent to this power, you depend on the justice and equity of those in power. A treaty may be made giving away your rights and inflicting unusual punishments on its violators.” [Emphasis added]
When it came to treaties, Henry looked to the English political system as something to emulate. He believed the system included proper checks and balances to prevent usurpation of political authority or individual rights.
“It is contended, that if the King of Great-Britain makes a treaty within the line of his prerogative, it is the law of the land. I agree that this is proper, and if I could see the same checks in that paper which I see in the British Government, I would consent to it. Can the English Monarch make a treaty which shall subvert the common law of England, and the Constitution? Dare he make a treaty that shall violate Magna Charta, or the Bill of Rights? Dare he do any thing derogatory to the honor, or subversive of the great privileges of his people? No, Sir. If he did it would be nugatory, and the attempt would endanger his existence.”
As Henry saw it, the proposed treaty-ratifying process in the Constitution was a profound regression that preceded even medieval England where the entire legislative-making body was involved.
“In the time of Henry the Vth, a treaty with Sigismund, King of Poland, was ratified by the Parliament. You have not even as much security as that. You prostrate your rights to the President and Senate. This power is therefore dangerous and destructive.” [Emphasis added]
On June 19, 1788 Henry continued his critique of the Constitution’s treaty-making authority, arguing that it could permit agreements that infringe on both state powers and the rights of their respective residents.
“Suppose the State right to territory be preserved, I ask and demand how do the rights of persons stand, when they have power to make any treaty, and that treaty is paramount to Constitutions, laws, and every thing?—When a person shall be treated in the most horrid manner, and most cruelly and inhumanly tortured, will the security of territorial rights grant him redress?—Suppose an unusual punishment in consequence of an arrest similar to that of the Russian Ambassador—can it be said to be contrary to the State rights? I might go on in this discrimination, but it is too obvious that the security of territory is no security of individual safety. I ask, how are the State rights, individual rights, and national rights secured?”
Unlike his fight for the Bill of Rights, Henry did not prevail in altering or amending the Constitution regarding treaties. To this day, treaties are still ratified by a Senate majority vote.
However, it’s not hard to see where Henry has been proven correct. One of the most notable examples is the North Atlantic Treaty. Ratified after World War II, it commits the U.S. to defending any members of NATO if they are attacked. The obligation circumvents the Congress’ power to declare war and has led to the expansion of U.S. military personnel on bases all over the world. It has also embroiled the U.S. in foreign disputes where no American interest is involved, while other smaller nations are eager to become members in order to receive U.S. military backing, at the expense of U.S. taxpayers.
One can only wonder whether such a treaty and others like it would have been ratified had they required the two-thirds majority of the states to approve it, as Patrick Henry advised.
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