John Jay returns as Publius for just one more essay, Federalist No. 64, on the Senate’s role in the making of treaties. Jay had contributed Nos. 2 through 5 in late October and early November 1787, but then fell ill and made no further contributions until this essay, published in early March 1788. It is fitting that he should write No. 64, however, as Jay was already one of America’s most distinguished diplomats. He served alongside John Adams and Benjamin Franklin in negotiating the Treaty of Paris in which Britain recognized American independence, and was subsequently secretary for foreign affairs to the Confederation Congress. Later, while serving as the first chief justice of the new Supreme Court, Jay would negotiate another treaty with Britain, at the behest of President Washington.
It is not surprising, then, that someone with Jay’s experience, while discussing the Senate’s role in treaties (and the House’s exclusion from the process), should emphasize the executive branch’s primacy in the business. Diplomats chosen by the president, in communication with him and acting under his instructions, will often have to adapt on the scene of any treaty negotiation, in which “perfect secrecy and immediate dispatch are sometimes requisite.” Jay knows well that “there frequently are occasions when days, nay even when hours are precious . . . As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either, should be left in capacity to improve them.”
The Senate’s advice may be valuable, and its consent is absolutely necessary if a treaty is to become binding law. Thanks to other features of the Senate, its members may be presumed to be, along with the president, “those who best understand our national interests.” But “[t]he convention have done well . . . in so disposing of the power of making treaties, that although the president must in forming them act by the advice and consent of the senate, yet he will be able to manage the business of intelligence in such manner as prudence may suggest.” Treaties will be law thanks to the Senate; but it is clear to Jay that as the results of diplomacy they will be entirely executive-branch productions. Advice and consent is best understood as one of the “checks and balances” of the Constitution–not a power to make policy, that is, but a power to affect another’s making of it.
(For explanation of this recurring feature, see here.)