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A Further Perspective
START’s Lame Passage
Has the Senate abdicated its constitutional responsibility?
Last week the Republican majority held a reading of the Constitution on the floor of the House of Representatives. One wonders whether the Senate should do the same. For in ratifying the Strategic Arms Reduction Treaty (START) on a rushed basis during a lame duck session of Congress, the Senate arguably abdicated its constitutional responsibility.
Article II of the Constitution provides that a treaty may be approved only with the “advice and consent” of the Senate and the concurrence of two-thirds of the Senators. Two aspects of this provision are noteworthy. First, treaties — unlike laws — may be approved only after the “advice” of the Senate: mere consent is not enough. Second, the Constitution requires a two-thirds majority for ratification of a treaty; the mere majority necessary for passage of laws is insufficient.
These provisions demonstrate not only the importance the Framers attached to the Senate’s ratification power, but also the active role the Framers expected the Senate would undertake in the ratification process. The “advice” requirement suggests that the Framers expected the Senate to be involved in shaping treaty language and that, given the importance of such matters, there would be substantial consensus within that body with respect to the propriety of treaty provisions.
However, the process in the Senate in ratifying the START treaty was far from this model. The administration urged the Senate to ratify the treaty during a lame duck session of Congress even though several members who would vote on the treaty had already been voted out of office. Moreover, in the rush toward approval, objections to treaty language were given short shrift. Critics maintained that the treaty was one-sided, imposing limits on U.S. nuclear stockpiles that would not in practice be applicable to Russia, that the treaty contained inadequate provisions to ensure that treaty compliance could be verified, and that there was language in the treaty’s preamble that appeared to impose limits on the ability of the United States to develop missile defenses.
Now that the treaty is ratified, we will have to live with these consequences. Only time will tell whether this treaty is a good deal for the United States. For example, the preamble language is arguably a nonbinding statement of intent — one that is not even applicable to the sorts of missile defense systems being developed by the United States. The preamble references “strategic defensive arms” that “undermine the viability and effectiveness of the strategic offensive arms of the Parties.” However, given the limits of current technology, the United States is far from developing defensive systems that would “undermine the viability and effectiveness” of Russia’s massive nuclear stockpile. Accordingly, this language may have no practical effect.
Nonetheless, the fact that such language made its way into the treaty at all is troubling. Such ambiguities may give rise to future conflicts or disputes. Accordingly, they should be studiously avoided where feasible. If the Senate had undertaken a more active role and a more thorough and rigorous analysis of the START treaty, one wonders whether such language would have survived.
Letter to the Editor View all comments (13) | Leave a comment
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Bill Hussein O'Stalin| 1.11.11 @ 6:45AM
You raise many good points. Personally, I look on in horror as many bills are passed through the Senate with gender and racial preferences which are anathema to the Constitution.
Frankly, the Start Treaty was better in the sense that it did not contain any racial biases like almost every other law passed by this Senate.
GreginOkinawa| 1.11.11 @ 8:26AM
The Dems really really really want to disarm America.
Al Adab| 1.11.11 @ 10:31AM
Yes, they do. It has been a central tenant of The Left for decades that violence and unrest (war0 anywhere in the world is caused by the United States hegemon. It is an article of their Faith. World peace will follow the demise of the U. S. in their minds. We put these people in charge of policy but we are surprised when we see what policies they pursue? Shame on us.
Grant Johnson| 1.11.11 @ 9:24AM
Obama has already withdrawn American missile defenses to placate Russia, WITHOUT any treaty language to fall back on as an excuse. The treaty is a serious problem in the hands of today's Democratic party.
PattyMor| 1.11.11 @ 12:15PM
Yes, but why did so many RepubuRats vote for this vile treaty? Are they taking campaign contributions from George Soros?
russel| 1.11.11 @ 12:28PM
Repeal the 17 th ammendment if we're going to get the senate back where our Founders intended them to be - accountable to their states , not themselves . As an author put it " Congress is one herd in two corrals " .
Marko| 1.11.11 @ 12:51PM
Conservatives should be using the recent START fiasco as a preamble to discussing Russia's true intentions and character. These are, after all, important things to make note of when signing a treaty with another party.
Quite frankly, conservatives missed the boat in pronouncing the West as victors over the vermin who still rule from the Kremlin by attempting to write the "End Of History" in stone, as if there were no more to say about the matter.
The fact remains: Missiles are still pointed at us from within Russia. I have found no compelling reason to believe that the intent and character of those whose fingers are on the buttons of the launchers now is in any significant way different than that of those who placed them there.
Al Adab| 1.11.11 @ 2:38PM
Today there are reports that China is unhappy with the US about a sale of weapons to Taiwan. Are we not unhappy about China selling arms to Iran? How about a little quid pro quo or does this administration simply conduct a one way foreign policy?
NJK| 1.11.11 @ 7:39PM
When can we split up the country? I'm revolted living in the same country with these people. Why don't we secure our borders, take all of our resources, pay them no money, and let them rot.
Mizo| 1.13.11 @ 1:29PM
The Amercian Senate would not even debate the merits of START, and had to pass it immediately.
The Russian Duma, upon receiving START refused to rush to ratifying it, until it was fully debated.
Those who voted for this in the Senate are either dupes or traitors, it does appear that there are traitors in the highest offices in this land, hopefully this does not reflect ion the populace who elect them.
Adidas | 8.11.11 @ 5:49AM
is good
العاب | 4.10.12 @ 12:59PM
ok ... thanx