“By declaring all treaties the supreme law of the land, the Executive and the Senate have, in many cases an exclusive power of legislation; which might have been avoided by proper distinctions with respect to treaties, and requiring the assent of the House of Representatives, where it could be done with safety.”
Answer.
Did not Congress very lately unanimously resolve, in adopting the very sensible letter of Mr. Jay, that a treaty when once made pursuant to the sovereign authority, ex vi termini became immediately the law of the land? It seems to result unavoidably from the nature of the thing, that when the constitutional right to make treaties is exercised, the treaty so made should be binding upon those who delegated authority for that purpose. If it was not, what foreign power would trust us? And if this right was restricted by any such fine checks as Mr. Mason has in his imagination, but has not thought proper to disclose, a critical occasion might arise, when for want of a little rational confidence in our own government we might be obliged to submit to a master in an enemy. Mr. Mason wishes the House of Representatives to have some share in this business, but he is immediately sensible of the impropriety of it, and adds “where it can be done with safety.” And how is it to be known whether it can be done with safety or not, but during the pendency of a negotiation? Must not the President and Senate judge whether it can be done with safety or not? If they are of opinion it is unsafe, and the House of Representatives of course not consulted, what becomes of this boasted check, since, if it amounts to no more than that the President and Senate may consult the House of Representatives if they please, they may do this as well without such a provision as with it. Nothing would be more easy than to assign plausible reasons, after the negotiation was over, to show that a communication was unsafe, and therefore surely a precaution that could be so easily eluded, if it was not impolitic to the greatest degree, must be thought trifling indeed. It is also to be observed, that this authority, so obnoxious in the new Constitution (which is unfortunate in having little power to please some persons, either as containing new things or old), is vested indefinitely and without restriction in our present Congress, who are a body constituted in the same manner as the Senate is to be, but there is this material difference in the two cases, that we shall have an additional check, under the new system of a President of high personal character chosen by the immediate body of the people.
VIII. Objection.
“Under their own construction of the general clause at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishment, and extend their power as far as they shall think proper; so that the State Legislatures have no security for the powers now presumed to remain to them: or the people for their rights. There is no declaration of any kind for preserving the liberty of the press, the trial by jury in civil causes, nor against the danger of standing armies in time of peace.”
Answer.
The general clause at the end of the enumerated power is as follows:—
“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the United States, or in any department or office thereof.”
Those powers would be useless, except acts of legislation could be exercised upon them. It was not possible for the Convention, nor is it for any human body, to foresee and provide for all contingent cases that may arise. Such cases must therefore be left to be provided for by the general Legislature as they shall happen to come into existence. If Congress, under pretence of exercising the power delegated to them, should in fact, by the exercise of any other power, usurp upon the rights of the different Legislatures, or of any private citizens, the people will be exactly in the same situation as if there had been an express provision against such power in particular, and yet they had presumed to exercise it. It would be an act of tyranny, against which no parchment stipulations can guard; and the Convention surely can be only answerable for the propriety of the powers given, not for the future virtues of all with whom those powers may be intrusted. It does not therefore appear to me that there is any weight in this objection more than in others. But that I may give it every fair advantage, I will take notice of every particular injurious act of power which Mr. Mason points out as exercisable by the authority of Congress under this general clause.
The first mentioned is, “That the Congress may grant monopolies in trade and commerce.” Upon examining the constitution I find it expressly provided, “That no preference shall be given to the ports of one State over those of another;” and that “citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” These provisions appear to me to be calculated for the very purpose Mr. Mason wishes to secure. Can they be consistent with any monopoly in trade and commerce?[75] I apprehend therefore, under this expression must be intended more than is expressed, and if I may conjecture from another publication of a gentleman of the same State and in the same party of opposition, I should suppose it arose from a jealousy of the eastern States very well known to be often expressed by some gentlemen of Virginia. They fear, that a majority of the States may establish regulations of commerce which will give great advantage to the carrying trade of America, and be a means of encouraging New England vessels rather than Old England. Be it so. No regulations can give such advantage to New England vessels, which will not be enjoyed by all other American vessels, and many States can build as well as New England, though not at present perhaps in equal proportion.[76] And what could conduce more to the preservation of the Union than allowing to every kind of industry in America a peculiar preference! Each State exerting itself in its own way, but the exertions of all contributing to the common security, and increasing the rising greatness of our country! Is it not the aim of every wise country to be as much the carriers of their own produce as they can be? And would not this be the means in our own of producing a new source of activity among the people, giving to our fellow-citizens what otherwise must be given to strangers, and laying the foundation of an independent trade among ourselves, and of gradually raising a navy in America which, however distant the prospect, ought certainly not to be out of our sight. There is no great probability however that our country is likely soon to enjoy so glorious an advantage. We must have treaties of commerce, because without them we cannot trade to other countries. We already have such with some nations; we have none with Great Britain, which can be imputed to no other cause but our not having a strong respectable government to bring that haughty nation to terms. And surely no man, who feels for the honor of his country, but must view our present degrading commerce with that country with the highest indignation, and the most ardent wish to extricate ourselves from so disgraceful a situation. This only can be done by a powerful government which can dictate conditions of advantage to ourselves, as an equivalent for advantages to them; and this could undoubtedly be easily done by such a government, without diminishing the value of any articles of our own produce; or if there was any diminution it would be too slight to be felt by any patriot in competition with the honor and interest of his country.