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A Note on Treaty Ratification

Published online by Cambridge University Press:  02 September 2013

Carl Marcy
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Extract

On June 13, 1952, with two senators on the floor, the Senate of the United States gave its advice and consent to the ratification of three treaties which thereby became a part of the supreme law of the land. One of the senators did not vote. The other voiced his “aye” while serving as presiding officer.

The conventions approved by the voice vote of one senator were the Consular Convention with Ireland; a Protocol Supplementary to the said Convention; and the Consular Convention with the United Kingdom.

Article II, Section 2 of the United States Constitution provides that the President shall have power “to make Treaties, provided two-thirds of the Senators present concur….” Even though, under Article I, Section 5, Clause 2, “Each House may determine the Rules of its Proceedings, …” how, as a matter of law, was it possible for the Senate, with but two senators on the floor, one of whom did not vote and the other of whom was in the chair, to give its advice and consent to a treaty? And as a matter of policy was the Senate in this case properly discharging its responsibilities?

Type
Research Article
Information
American Political Science Review , Volume 47 , Issue 4 , December 1953 , pp. 1130 - 1133
Copyright
Copyright © American Political Science Association 1953

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References

1 See Cong. Rec., June 13, 1952, pp. 7343–54Google Scholar.

2 Executive P, 81st Cong., 2d sess.

3 Executive F, 82d Cong., 2d sess.

4 Executive O, 82d Cong., 1st sess.

5 See Legislative History of the Committee on Foreign Relations, S. Doc. 161, 82d Cong., 2d sess., pp. 49–50, for summary.

6 Cong. Rec., June 12, 1952, p. 7254Google Scholar.

7 See Cong. Rec., June 13, 1952, p. 7348Google Scholar.

8 Washington Evening Star, June 14, 1952, p. 1Google Scholar. For an interesting discussion of the reason for the requirement of a two-thirds vote of senators present, see The Federalist, No.75.

9 Standing Rules of the Senate, Rule V.

10 But see Christoffel v. United States, 338 U. S. 84, where the Supreme Court by a 5 to 4 decision in a contempt case permitted oral testimony to rebut the showing of the record that a quorum was present in a House committee. Justice Jackson, in dissent, noted, however (p. 92): “All the parliamentary authorities, including those cited by the Court, agree that a quorum is required for action, other than adjournment, by any parliamentary body; and they agree that the customary law of such bodies is that, the presence of a quorum having been ascertained and recorded at the beginning of a session, that record stands unless and until the point of no quorum is raised. This is the universal practice. If it were otherwise, repeated useless roll calls would be necessary before every action.”

11 See Executive Report 8, 82d Cong., 2d sess., p. 2, for discussion of this matter.

12 The hearings were printed as an appendix to the report cited.

13 Cong. Rec., July 18, 1953, p. 9380Google Scholar; see pp. 9380–87 for discussion.

14 Cong. Rec., July 20, 1953, p. 9484Google Scholar; see also Ibid., July 21, 1953, p. 9612 for additional discussion.