The Jeffersonian Treaty Clause

At first glance, the Treaty Clause contained in Article II, Section 2 of the U.S. Constitution appears to grant power to the President and the Senate that is unlimited in scope, and that position represents settled doctrine. However, Professors Lawson and Seidman claim that this view of the Treaty Clause does not reflect the original meaning of the Constitution.Professors Lawson and Seidman, employing a methodology that in-terprets the Constitution to mean what a reasonable eighteenth-century individual in possession of all relevant information would have under-stood it to mean, endorse an “implementational” view of the treaty pow-er, which traces its lineage back to Thomas Jefferson. On this view, the Treaty Clause may be used to carry into execution other federal powers but does not function as a free-standing grant of power. The Treaty Clause thus parallels and complements the Article I Sweeping Clause, which authorizes Congress to implement federal powers by passing laws that are “necessary and proper for carrying into Execution” such pow-ers. The authors do not claim that this interpretation is unproblematic, only that it is the least problematic of all possible interpretations.

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