Article 2, section 2 of the Constitution requires treaties to be approved by two thirds of the Senate. But many international accords, including the North American Free Trade Agreement (NAFTA) and the World Trade Organization, are approved as congressionalexecutive agreements by simple majorities of both Houses.
This is a modem development, departing radically from the constitutional practice of the first 150 years of the Republic. The congressional-executive agreement arose as part of the constitutional revolution of the Roosevelt years. Using the transformative techniques developed during the conflict between the New Deal and the Old Court in the 1930S, the President and House of Representatives gained the consent of the Senate to a revision of the foreign affairs power in the aftermath of the Second World War. The end of Roosevelt's fourth term saw the dawn of the modem Constitution - in which President and Congress have the authority to commit the nation on any important matter of domestic or foreign policy.
Ackerman and Golove's story challenges originalist accounts that suppose the Treaty Clause to have a plain meaning that cannot be altered without formal amendment. It also challenges theories that suppose that the last war to generate a major constitutional change ended in 1865. And yet, the processes of twentieth-century transformation can be ignored only by mystifying the ways in which modem Americans exercise their popular sovereignty.
Date of Authorship for this Version
Ackerman, Bruce, "Is NAFTA Constitutional?" (1995). Faculty Scholarship Series. 133.