Washington Law Review


Arthur Bestor


The first part of the present article examines the specific question of the placement in the constitutional system of the power to terminate a treaty originally ratified by and with the advice and consent of the Senate, two-thirds of the members present concurring. The power of terminating a treaty is, of course, only a particular segment or subdivision of the far more inclusive power of determining the foreign policy of the Nation. Accordingly, after considering the evidence bearing directly upon the narrow question of treaty abrogation, the present article turns to the larger question of the relationship the framers intended to establish between the Senate and the President in shaping the nation's course in foreign affairs. The remainder of the article, beginning with Part III, deals with various aspects of this inclusive problem, seeking through contemporaneous historical evidence to ascertain the intention of the framers of the Constitution on each matter. Among the matters to be examined in successive sections are the following: The definitions given to the concepts of legislative and of executive authority respectively by political theorists of the centuries leading up to the eighteenth; the distinctions that Americans had already drawn between the two sorts of power in the documents and practices of the old congress under the Confederation; the discussions in the Federal Constitutional Convention of 1787 concerning the proper distribution between Senate and President of responsibility for making—and altering—foreign policy; and finally the precise meaning of the treaty clause that the framers incorporated in the Constitution.

First Page