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.
