It must be objected to this construction, therefore, that it extends the power of the President and 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 governments, 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 and spirit of the constitution must decide, turned on the extent of the Treaty power in relation to the objects; specifically and expressly submitted to the Legislative power of Congress.
It was an important, and 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, to borrow, and to appropriate money, &c. If, by Treaty, therefore, as paramount to the Legislative power, the President and 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 and 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 and 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 and 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 attempt to keep up a standing army in time of peace, for the purpose of co-operating, on given contingencies, with an ally, for mutual safety 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 President and Senate would only pledge the public faith, and 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 alleged, a constitutional one; if Congress have no will but to obey, and if to disobey be treason and rebellion against the constituted authorities? Under a constitutional obligation with such sanctions to it, Congress, in case the President and Senate 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 section 9 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 of the right of the people peaceably to assemble, &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, and money, or the sword and the purse, as requiring a few additional observations, in order to show 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, and 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 and 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 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 and Senate, contrary both to a sense of the Legislature, and to the letter and 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 and security against the danger of standing armies, and 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 and 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 end 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, and two appropriations for two years each, the second of which, the two Houses would be constitutionally obliged to make.
It had 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 withheld, it would be in the power of either branch to keep up an establishment by refusing to concur in repeal. The construction and reasoning, therefore, opposed to the rights of the House, would evidently defeat an essential provision of the constitution.