Too Quick to Dismiss the Founders’ Concerns

It was a privilege to read Oona Hathaway’s Treaties’ End. It’s beautifully written, thought-provoking, and original – a hat-trick in academic writing. I join the other commentators in applauding this great contribution to the scholarship on international lawmaking in the United States.

While I agree with much of Professor Hathaway’s analysis, I came away unpersuaded by the analysis of the Founding events and question whether the historical context can be so easily dismissed as having “little or no continuing significance.” According to Professor Hathaway, the decision to “place responsibility for concluding treaties in the hands of the President and the Senate alone” rested on two “central reasons”: (1) “it was expected that the Senate would be directly involved in negotiating treaties and would serve as the President’s ‘council of advisors’ in treaty-making”; and (2) “it was seen as a way to keep the federal government from bargaining away regional interests.” Professor Hathaway concludes that these rationales “are entirely products of a particular time and set of circumstances that no longer hold.”

Although I don’t profess to be a constitutional historian, it seems this analysis may fall short in at least two respects. First, it oversimplifies the history of the Treaty Clause by failing to consider several important historical factors at the Founding (…understanding that such simplification may be an unavoidable cost of writing a piece with such breadth and depth on comparative and other issues). Second, it underestimates the ongoing significance of such historical concerns.

With regard to the first point, there were various other factors underlying the deal that was struck in the Treaty Clause. For example, some Founders were keen to limit the power of the House, especially in matters of economics and foreign policy, where popular sentiment might regularly lie at odds with the long term interests of the nation, as perceived by the “upper” house and the educated elite. Some Founders were equally determined to limit the ability of the President to enter into alliances and other foreign “entanglements” that might embroil the nation in the intractable feuds and squabbles of the Old World. Conversely, still others were concerned about the problem that the new nation lacked credibility among the colonial superpowers because – as Professor Hathaway recognizes – it seemed “incapable of observing treaty obligations.” There are doubtless as many additional concerns as there were delegates to the Convention.

With regard to the second point, although the times have changed, surely, at least some of these issues remain relevant and important today. Take, for example, the credibility problem. Today, the U.S. is seen as having a credibility gap with regard to international law, due in part to its unwillingness or inability to adhere to its international commitments. To make easier the process of entering into such commitments – or, conversely, to equate the treaty commitment with less formal, less binding executive commitments – may exacerbate the problem by increasing the perception that U.S. commitments rise and fall with the four-year presidential election cycle.

Finally, what underlies the assumptions that “democratic legitimacy” and bureaucratic efficiency are virtues in the context of international agreements? Wasn’t the Treaty Clause intended in part to insulate our international commitments from the whims of a popular majority? (See, e.g., the Geneva Convention debate, today.) And why is bureaucratic efficiency in the formation and proliferation of international commitments a positive development in a nation founded on the notion that foreign entanglements may threaten domestic liberty and undermine sovereignty?