THE CONTROL OF AMERICAN FOREIGN RELATIONS. CHAPTER I. THE NATURE OF THE FOREIGN RELATIONS POWER. 1. Difficulty in Developing Legal Theory of Subject. There is no phase of American constitutional law on which commentators have found it more difficult to procure a logical and consistent theory than the control of foreign relations. Not only have opinions differed as to the relative powers of President, Senate and House of Representatives, but also as to the limitations imposed upon the national foreign relations power as a whole by the guaranteed rights of individuals, "reserved powers" of the states and the doctrine of separation of powers. Discussion has dealt particularly with the treaty-making power but similar differences have developed in considering the power to make national decisions such as the recognition of foreign states and governments, and the declaration of war, and the power to meet international responsibilities, all of which are here included under the general term, the foreign relations power.. For this difficulty several reasons may be assigned, as for instance, vagueness in the terms of the constitution on this subject, inconsistency in the interpretations acted upon by the political organs of government at different periods of history, and the comparative lack of judicial interpretation, due to the tendency of the courts to regard questions involving foreign relations as political and so beyond their consideration. There is, however, a more fundamental reason for this difficulty, a reason which lies back of those mentioned and which explains the existence of a similar difficulty in all other constitutional states. This reason is the 1 Infra, secs. 107, 247. dual position necessarily occupied by the authority controlling foreign relations. 2. Dual Position of Foreign Relations Power. This authority is on the one hand an agency of the national constitution. It is created by that instrument and subject to all the limitations of power and procedure therein expressed or implied. But on the other hand it is the representative of the nation before other nations and is expected by them to meet international responsibilities according to the standard of international law and treaty. Thus its activity is governed at the same time by constitutional law and international law, its powers by one, its responsibilities by the other. Conflicts may occur in the application of these two laws. For example, international law requires that all validly concluded treaties be executed, but constitutional law may make it difficult if not impossible to execute particular treaty provisions because of certain constitutional limitations. This problem has arisen in the United States in connection with the police power of the states and the exclusive power of Congress to appropriate money. It has been alleged that under constitutional law the states and congress are entitled to an unlimited discretion in exercising these powers irrespective of treaty provisions. Commentators have differed in their views as to the scope of the powers belonging to the various organs controlling foreign relations, according as they have approached the subject from the constitutional or from the international point of view. 3. The International Point of View. If the international point of view were adopted in full it would result that an international commitment made by the proper constitutional authority would bind all organs of the government. Thus Secretary of State Livingston wrote the French government in 1833: 2 Infra, secs. 50, 59. "The government of the United States presumes that whenever a treaty has been concluded and ratified by the acknowledged authorities competent for that purpose, an obligation is thereby imposed upon each and every department of the government to carry it into complete effect, according to its terms, and that on the performance of this obligation consists the due observance of good faith among nations." 3 But constitutions, acting by tradition and convenience, if indeed not practical necessity, have ordinarily vested the power of international negotiation in a single individual, the chief executive, acting with or without the advice of a council. Now the international commitments of this individual might radically alter the constitution. They might impair national independence. They might establish autocracy. Were these commitments fundamental law, obligatory upon all organs of the government, the achievements of centuries of battling for constitutionalism and popular sovereignty might be sacrificed by the stroke of a pen." * Wharton, Int. Law Digest, 2: 67. See also Cushing, At. Gen. 1854, 6 Op. 291; Duer, Outlines of Constitutional Jurisprudence, 138; Wheaton, Elements of Int. Law, Dana ed. Sec. 543; Moore, Int. Law Digest, 5: 230, 370; Willoughby, Constitutional Law, 1: 515, infra, sec. 37. This doctrine seems to be an implication of Art. VI, sec. 2 of the Constitution of the United States "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land"-but it must be admitted that the United States has been more insistent upon applying it to other nations than to itself. (Infra, sec. 39.) Nations usually adopt the international point of view in discussing the powers and responsibilities of other nations, the constitutional point of view in discussing their own powers and responsibilities. 4" The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed confining it to a small number of members." Washington, Message to House of Representatives, March 30, 1796, Richardson, Messages and Papers of the President, 1: 195. "The reason why we trust one man, rather than many, is because one man can negotiate and many men can't. Two masses of people have no way of dealing directly with each other. . . . The very qualities which are needed for negotiation-quickness of mind, direct contact, adaptiveness, invention, the right proportion of give and take-are the very qualities which masses of people do not possess." Lippmann, The Stakes of Diplomacy. N. Y., 1915. pp. 26. 29. ... 5" Applying the principle broadly, the contention that one department of the Government may in any way coerce another is a repudiation of the very 7 |