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Updated: June 8, 2025
The single question covered was, whether the treaties not having been ratified by the Senate within the two years specified in the Dingley Act were still within its jurisdiction. The committee determined that the President and the Senate are, under the Constitution, the treaty-making power. The initiative lies with the President.
But even during this brief period it failed to control the treaty-making power since it lacked the two-thirds majority in the Senate which the Constitution requires. In fact, there has been no time since 1874 when any party had sufficient majority in the Senate to give it an active control over the treaty-making power.
A treaty which stipulates for the payment of money undertakes to do that which the treaty-making power cannot do; therefore the treaty is not the supreme law of the land. To give it effect the action of Congress is necessary, and in this action the representatives and senators act on their own judgment and responsibility and not on the judgment and responsibility of the treaty-making power.
Georgia bid defiance to the treaty-making power, and set at nought the Intercourse Act of 1802; she trampled it under foot; she nullified it: and for this, she received the smiles and approbation of Andrew Jackson. And this induced South Carolina to nullify the Tariff.
The treaty-making power, however, is not thus limited. Treaties may cover any subject. Another very recent example is afforded by the Migratory Bird Treaty with Great Britain. One will search the Constitution in vain for any grant of power to the Federal Government to enact game laws. Nevertheless, under this treaty, many state game laws have been practically annulled.
Through the treaty-making power the President and Senate could in a most important sense legislate without the consent of the popular branch of Congress. They could enter into agreements with foreign countries which would have all the force and effect of laws regularly enacted and which might influence profoundly our whole social, political, and industrial life.
If all the separate treaties, conventions, and other agreements, existing now between pairs of nations for the performance of specific acts and the settlement of differences, were modified and gathered into the forms of general treaties signed by all the treaty-making states; if all international laws and usages were codified and brought under the surveillance of some single representative court or council, we should discover that there existed already the substance of an international government, not indeed adequate to our needs, but far ampler than we had suspected.
In developing the policy of the Federal courts in pursuance of the purpose of those who framed the Constitution, it was perfectly natural that the judicial veto should not have been used to limit the treaty-making power.
No law of Congress can in any way modify or limit those powers. The Dingley Law can not limit the time in which we shall be allowed to make a treaty; it can not give to Congress any power on the subject of treaties not given it by the Constitution, and under the Constitution Congress as a legislative body is not a part of the treaty-making power."
It is a very complicated question, not only because the authority of the House on the subject of treaties has been disputed and argued almost from the very adoption of the Constitution, but the fourth section of the Dingley Act specifically provides how and when such treaties shall be made. . . . In my opinion the fourth section of the Dingley Act, so far as it attempts to confer, limit, or define the treaty-making power is not only an unwarranted interference with the powers of the President and Senate, but is unconstitutional, because it comes in conflict with that clause of the Constitution which says that the President shall have power, by and with the advice and consent of the Senate to make treaties.
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