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Obama, Iran, the JPOA, and Federalist Paper #75 (“The Treaty-Making Power of the Executive”)

Saturday, November 26, 2016 15:25
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(Before It's News)

I am not going to opine on the particulars of the President Obama’s Iran deal (“Joint Plan of Action”), other than to say that many years ago I spent time in Iran, loved the people and  came to think that they are the USA’s natural allies in that part of the world’s (just as in my travels I came to believe that Vietnam is our natural ally in continental Asia), but had a beef with the authoritarianism of most of the mullahs I met (a dissatisfaction that I had opportunity to express to them while there). I am a liberal (not in the modern American misuse of the term, but in the correct, Hayekian/Milton Friedman sense of the term), and to me non-liberals generally seem like sociopaths. So while analysis of the terms of JPOA that I might venture would come from that mixed sense of a belief that American engagement with Persia would be good for the world, while standing up for America’s liberal values (and for those countries that broadly share them, such as Israel) is also good for the world, I will leave that for another place and time. Instead, this comment on the JPOA will be based not on its substance, but on the process which gave birth to it: In my experience, when any one person (including myself) believes that one’s greater wisdom, virtue, or intelligence puts one in a position to bypass institutions which have evolved (such as common law) or which have withstood the test of time (such as the US Constitution), it generally works out badly.

With that in mind, I would would like to excerpt from Federalist Paper #75, “The Treaty-Making power of the Executive” (Alexander Hamilton, emphases added):

“With regard to the intermixture of powers, I shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the Executive with the Senate, in the article of treaties, is no infringement of that rule. I venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.

“However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years’ duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.”

This story was first published on Deep Capture. Deep Capture features original investigative reporting on the all-too-cozy relationship Wall Street has with regulators, media, government and the intellectual establishment.

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