Foreign Policy and the Constitution – 2

In Foreign Policy and the Constitution – 2 we continue to examine the place the US Constitution ought to have in our foreign policy decision.

A driving force behind the Constitutional Convention was the failure of the Continental Congress to manage the foreign affairs of the young republic. This imperative was clear in the ratification debates. The first five papers of The Federalist are devoted to the necessity of blunting the influence of foreign powers and to the organization of U.S. military power. Fifteen additional papers focus on international relations and civilian control of the military.

Against this background, the Constitution could be understood not only as a national charter, but also as a strategic document. The institutions established by the Constitution to channel the conduct of foreign policy imply certain principles of foreign policy. We ought to keep these timeless principles in mind as we craft strategy for today’s world.

One principle we find in the Constitution is so simple it’s usually overlooked: the states are stronger as a Union than as separate powers. A Union of the states overcame divisions of culture, economic interest, and military capacity—divisions that would have been exploited by foreign powers to turn one state against another, and to weaken and cow the American continent into submitting to their designs.

A Union strengthened the collective power of the states in their foreign relations. It allowed them to pool their various resources to create advantages of scale and scope in military and economic power. As Federalist 4 states, “The people of America . . . consider union and a good national government as necessary to put and keep them in such a situation as, instead of inviting war, will tend to repress and discourage it.” Further, “If [foreign powers] see that our national government is efficient . . . our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united,  they will be much more disposed to cultivate our friendship than provoke our resentment.” Conversely, if the states remained divided, the U.S. would earn not only the “contempt” of foreign nations, but their “outrage.”

This principle came under threat—but survived—during the Civil War. In his First Annual Message to Congress, President Lincoln sent a clear warning to foreign powers to refrain from interfering in the war. At the same time, he acknowledged that “factious domestic division” exposed the nation to “disrespect abroad.”

We may take this principle for granted today, but it’s very much in play around the world. The European Union, for example, has a greater combined population and economy than the U.S. But political division greatly reduces the EU’s role in world affairs. The smaller nation-states of Central and Eastern Europe, in particular, find themselves at risk from—or perhaps at the mercy of—Russia. Likewise, the countries of the Asia-Pacific region, from South Korea to India, worry about China’s aggressive drive for regional hegemony. Yet they struggle, due to their own enmity and rivalries, to form a united strategy to counter China.

The primacy of Union gives rise to a second, subsidiary principle: treaties with foreign powers are very serious business, ought not be entered into lightly, and must be widely supported across the country.

The Founders believed the violation of major foreign commitments was a chief source of friction and war in international relations. In fact, Federalist 3 recognized only two sources of war: direct violence and the breach of treaties. Thus the Constitution requires that a major foreign commitment that binds our nation have a broad consensus among the people, and not result from the parochial interests of a minority or even a narrow majority. As matters of war and peace, treaties should reflect a strong Union, not a divided nation.

This principle led to the Treaty Clause, which empowers the president to negotiate treaties, but requires two-thirds of the Senate to approve them and—if necessary—to demand changes. This extraordinary requirement is really just an ongoing expression of the original decision to form a Union. And it has produced a system in which treaties routinely go through many iterations and rounds of negotiations, even after initial signature by the president. Treaties throughout our history carry scores of conditions, reservations, and amendments added by Congress, precisely to ensure widespread acceptance among the people.

This was in fact how the first treaty ratified under the Treaty Clause played out. The Jay Treaty with Britain—negotiated by a co-author of The Federalist—only gained Senate approval on the condition that Jay rework the treaty to add a clause regarding trade between the United States and the British West Indies.

Another principle of foreign policy rooted in the Constitution is that the Union must have a strong military, but one that is at the same time restrained and subject to the control of the people.

At the time of the Founding, a powerful and restrained military was something of an oxymoron. Federalist 11, for instance, states that a strong military—and in particular a strong navy—is vital not only to deter aggression, but also to secure and expand international trade. Yet Federalist 26 recognizes that military might has historically posed a grave threat to individual liberty. This presented what seemed to be a Hobson’s choice between a strong military and a weak military, both of which would threaten liberty over time.

But our Founders charted a way out of this dilemma. The Constitution empowered the president, as commander-in-chief, to defend against attack and take decisive military action where necessary. At the same time, it entrusted the people’s representatives in Congress with a wide range of foreign affairs powers as a means of fostering prudence, democratic control, and protection against tyranny. Thus only Congress can raise and support armies; only Congress may declare war and invoke the legal obligations and protections that this state of international relations confers; only Congress regulates foreign commerce, and with it control over important levers of influence with foreign nations in order to better relations, exact costs, and prevent war.

Under President Obama, there has been considerable drift away from all three of these principles. And that drift has contributed to the general drift of U.S. foreign policy. Even former President Carter has said, “I can’t think of many nations in the world where we have a better relationship now than when he took over.” Our interests are threatened, our alliances are stressed, our honor is stained, and our adversaries are increasingly tempted into new episodes of adventurism and aggression.

The most recent example of this drift is the Iran nuclear deal. This is a major arms-control agreement with a mortal enemy—an enemy with the blood of thousands of Americans on its hands, and for whom “death to America” is a foreign-policy bedrock. And the agreement goes to the heart of the gravest threat facing the world: a terror-sponsoring state armed with nuclear weapons. It is precisely the type of agreement that the Founders intended to be tested and refined by the treaty process. It is precisely the type of agreement implicating matters of war and peace that must be supported by a widespread consensus of the American people.

But the President didn’t submit the Iran nuclear deal as a treaty. From the beginning, his intention was to circumvent the people’s representatives and obligate the U.S. to the ayatollahs by a mere executive agreement. Instead of rallying two-thirds of the Senate to support the deal, he relied on a tiny, partisan minority to protect his executive agreement from the judgment of the American people.

This is dangerous and nearly unprecedented. Executive agreements are and should be reserved for technical matters. Among the first executive agreements in our history were the 1792 agreements between the United States and other nations to coordinate mail delivery. Executive agreements have also traditionally been used to assign claims and debts between nations. These issues are low-stakes, and are not breeding grounds for armed conflict. They are akin to deciding whether cars will drive on the right or left side of the road. That’s why they do not need to be tested by a supermajority vote.

Nuclear weapons agreements are different. The dividing line between subjects reserved for treaties and subjects reserved for less formal scrutiny is not precise at the margins. But this isn’t anywhere near the margins. Historically, major arms control agreements that bind the U.S. have almost invariably been reached through treaty. One notable exception was the Agreed Framework with North Korea negotiated under President Clinton in 1994, which aimed at keeping North Korea from becoming a nuclear power. I doubt President Obama would like to cite the North Korea case as precedent—although it surely is a precedent in its contempt for Congress, and likely in its failure as well.

Why did President Obama ignore the Treaty Clause? The answer is stunning. Secretary of State Kerry lamented in testimony to Congress that it is “physically impossible” to get a treaty through the Senate in these polarized times. Of course, this logic could apply to any politically inconvenient part of the Constitution. Moreover, Secretary Kerry must have forgotten that, as chairman of the Senate Foreign Relations Committee, he guided a nuclear arms control treaty with Russia to ratification less than five years ago.

The simple fact is that the President ignored the Constitution because he knew the Senate would reject his deal. This disregard for the Treaty Clause is the height of hubris. It mistakes tunnel vision for principle, closed-mindedness for superior wisdom, and personal legacy for the vital national interest. The nuclear deal with Iran is a travesty, one that betrays our close friend Israel, provides billions for Iran’s campaign of terror, and paves the way for Iran to obtain nuclear weapons capability.

Besides the immediate damage to our national security, the deal also damages the foundational principle that major foreign commitments should be backed by a broad consensus of the people as reflected by Congress. This episode, added to the North Korea example, will make it extremely tempting for future presidents to avoid the expenditure of political capital required to pass a treaty. Presidents will be tempted to reach expedient deals on momentous issues, deals that divide rather than unite the nation.

Reprinted with permission from Imprimus, a publication of Hillsdale College.