All Three Federalist Papers Authors on Presidential Corruption and Foreign Influence

In Federalist No. 64, John Jay addressed fears that corrupt leaders would make treaties at the expense of the wider nation’s interests. He argued that requiring approval by a super-majority of Senators in addition to the President before a treaty could be formed rendered the possibility that the nation as a whole would be bound by the corrupt dealings of a compromised leader highly unlikely.[1] So long as the treaty did not pass the smell test for either the President, or, more likely in Jay’s scenario, one third of the Senate plus one vote, a nefarious instrument would be dead on arrival.

The fear of presidential corruption tainting treaties was also expounded by Jay’s Federalist Papers co-author Alexander Hamilton in Federalist No. 75. Hamilton’s words, in turn, were craftily echoed by James Madison in his Helvidius writings during the Pacificus-Helvidius debate over the interpretation of America’s treaty obligations to France.[2] Hamilton had forcefully explained the danger of leaving “to the sole disposal” of the President the power to commit the nation in foreign affairs; human nature being less than perfectly virtuous, a lone President’s self-interest might lead him to betray the country:

“[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.”[3]

Therefore, avoiding national betrayal by a venal chief executive willing to sacrifice national interest for personal gain required a Senatorial check on the power to make treaties.

The features of the Constitution’s treatymaking process as put forward collectively by Jay, Hamilton, and Madison: requiring the approval of two-thirds of the Senate would ensure expertise, constituent representation, stability, and integrity in treaty formation and thus foreign affairs. Today, however, formal treatymaking with two-thirds of the Senate assenting under Article II, is not a necessary feature of the great majority of America’s international agreement making.[4] The framers’ arguments for the constitution’s treatymaking process notwithstanding, the United States as the leading global power does not continue to adhere orthodoxly to that procedure.

[1] The Federalist No. 64 (John Jay).

[2] James Madison, Letters of Helvidius, Nos. 1-4, No. IV. at 27 (1793).

[3] The Federalist No. 75 (Alexander Hamilton); See also David Golove, Constitutional Government in the Limiting Case: So-Called Non-Binding International Agreements, Remarks at the Yale-Duke Foreign Relations Law Roundtable (Oct. 15, 2016), at 2, 4.

[4] See John Yoo, Rational Treaties: Article II, Congressional-Executive Agreements, and International Bargaining, 97 Cornell L. Rev. 1, 2 (2011) (citing Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L.J. 1236, 1258-60 (2008) (documenting that 1939 to 1989, the U.S. made 11,698 nontreaty international agreements and 702 formal treaties, and 1980 to 2000, the U.S. made 2,744 congressional-executive agreements and 375 treaties)).