Foreign Policy and the Constitution

Tom Cotton
U.S. Senator from Arkansas and Author, Sacred Duty: A Soldier’s Tour at Arlington National Cemetery

Tom CottonTom Cotton was elected to the U.S. Senate from Arkansas in 2014, following one term in the U.S. House of Representatives. He serves on the Senate Banking Committee, the Senate Intelligence Committee, and the Senate Armed Services Committee. A graduate of Harvard College, he studied government at the Claremont Graduate School and received his J.D. from Harvard Law School in 2002. In 2005, he was commissioned as a 2nd Lieutenant in the U.S. Army, rose to 1st Lieutenant, and served deployments in Iraq with the 101st Airborne and in Afghanistan with a Provincial Reconstruction Team. His military decorations include the Bronze Star Medal, Combat Infantry Badge, and Ranger Tab. He is the author of Sacred Duty: A Soldier's Tour at Arlington National Cemetery.

The following is adapted from a speech delivered on September 15, 2015, at Hillsdale College’s Sixth Annual Constitution Day Celebration in Washington, D.C.

Our Founders gave us a constitutional democracy, a system of government that informs our foreign policy just as it does our domestic policy. For many foreign-policy elites, especially those abroad, this is a serious problem for U.S. foreign policy. The Constitution empowers the people, these critics say, and the people, they believe, can be ignorant, emotional, and fickle, swinging wildly from war mongering to isolationism, from moralism to callousness. Far better, they say, is what Walter Mead has called the “auteur theory of foreign policy”—a foreign policy guided by a brilliant strategist, insulated from the unruly masses.

One hears an echo of this viewpoint in the praise for what these critics see as the coherent and decisive strategic thinking of Russia’s Vladimir Putin and China’s Xi Jinping. Putin is praised as a brilliant strategist who is redefining 21st-century warfare. Xi has been called a game-changer in China’s rise, one whose ambitions and power rival those of Mao Zedong and Deng Xiaoping.

I’ll admit that Putin and Xi may have stolen a march on our president here and there. But that’s an indictment of President Obama’s particular abilities and policies, not of our system. By the traditional measures of international influence—economic might, per capita measures of well-being, military and trade cooperation agreements, cultural weight—the United States far outpaces both Russia and China, as well as the rest of the world.

And while a brooding auteur may in fact have strategic foresight, intellect, and prudence, no man is infallible, no matter how talented. Napoleon, brilliant general that he was, still marched the Grand Armée across the Nieman River into Russia. Otto von Bismarck toiled for decades to unify the German states, only to see his fragile work undone a few years later by Wilhelm II’s militarism and adventurism. In the same way, I believe that over time Putin and Xi—to say nothing of North Korea’s Kim Jong Un or the ayatollahs in Tehran—will also miscalculate and suffer strategic setbacks.

But the United States is different from these regimes. Our constitutional system doesn’t depend on brilliant leaders. “Enlightened statesmen,” as Madison wrote in Federalist 10, “will not always be at the helm.” Our system is based on individual rights, safeguarded by well crafted, ultimately democratic institutions. While we always hope for wise leaders, our Constitution works in their absence by filtering the wisdom of the people through those institutions.

This approach couldn’t be more at odds with the auteur theory of foreign policy. From that perspective, our system looks like some kind of policy-making Frankenstein. Authority is divided between the executive and the legislature, and the executive itself is divided among competing departments. The president and secretary of state serve short tenures compared to the kings and ministers of the Old World. Equal representation of states in the Senate gives considerable influence to regional interests. The arcane rules of the Senate, along with the separation of powers itself, slow the whole process down. How could this ever work?

Yet it does, again and again. The talent of a single leader or a small group with outsized control over foreign policy can never match the moderation, prudence, and self-correcting capability of our constitutional democracy over the long term. And in international relations, it’s the long term that counts.

In the realm of domestic policy, these ideas are familiar. Our constitutional system works to ensure that all the individuals, interests, factions, lobbies, and others who influence and are influenced by domestic policy are more or less satisfied—or perhaps minimally dissatisfied. And the same thing plays out in foreign policy. America’s foreign policy tradition is flexible, agile, and multifaceted, and it therefore tends to produce positive results for us in a complicated world.

Again, I cannot stress enough how alien and unfashionable this way of thinking is in Foggy Bottom and in the West Wing, not to mention European ministries. Among many foreign-policy elites, these democratic influences are something to be suffered and overcome—as we’ve seen most recently in the debate about the Iran nuclear deal.

In the end, though, we usually survive mistakes by particular leaders because leaders are not the foundation of our system. The foundation of U.S. foreign policy is the views and values of the American people, filtered by elected representatives through democratic institutions, proven by time.

This foreign policy tradition is not an accident. When designing the Constitution, the Founders were very conscious of the need to invest the federal government with strong foreign-affairs powers, while accounting for the interests of the states and the people.

A driving force behind the Constitutional Convention was the failure of the Continental Congress to manage the foreign affairs of the young republic. This imperative was clear in the ratification debates. The first five papers of The Federalist are devoted to the necessity of blunting the influence of foreign powers and to the organization of U.S. military power. Fifteen additional papers focus on international relations and civilian control of the military.

Against this background, the Constitution could be understood not only as a national charter, but also as a strategic document. The institutions established by the Constitution to channel the conduct of foreign policy imply certain principles of foreign policy. We ought to keep these timeless principles in mind as we craft strategy for today’s world.

One principle we find in the Constitution is so simple it’s usually overlooked: the states are stronger as a Union than as separate powers. A Union of the states overcame divisions of culture, economic interest, and military capacity—divisions that would have been exploited by foreign powers to turn one state against another, and to weaken and cow the American continent into submitting to their designs.

A Union strengthened the collective power of the states in their foreign relations. It allowed them to pool their various resources to create advantages of scale and scope in military and economic power. As Federalist 4 states, “The people of America . . . consider union and a good national government as necessary to put and keep them in such a situation as, instead of inviting war, will tend to repress and discourage it.” Further, “If [foreign powers] see that our national government is efficient . . . our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united,  they will be much more disposed to cultivate our friendship than provoke our resentment.” Conversely, if the states remained divided, the U.S. would earn not only the “contempt” of foreign nations, but their “outrage.”

This principle came under threat—but survived—during the Civil War. In his First Annual Message to Congress, President Lincoln sent a clear warning to foreign powers to refrain from interfering in the war. At the same time, he acknowledged that “factious domestic division” exposed the nation to “disrespect abroad.”

We may take this principle for granted today, but it’s very much in play around the world. The European Union, for example, has a greater combined population and economy than the U.S. But political division greatly reduces the EU’s role in world affairs. The smaller nation-states of Central and Eastern Europe, in particular, find themselves at risk from—or perhaps at the mercy of—Russia. Likewise, the countries of the Asia-Pacific region, from South Korea to India, worry about China’s aggressive drive for regional hegemony. Yet they struggle, due to their own enmity and rivalries, to form a united strategy to counter China.

The primacy of Union gives rise to a second, subsidiary principle: treaties with foreign powers are very serious business, ought not be entered into lightly, and must be widely supported across the country.

The Founders believed the violation of major foreign commitments was a chief source of friction and war in international relations. In fact, Federalist 3 recognized only two sources of war: direct violence and the breach of treaties. Thus the Constitution requires that a major foreign commitment that binds our nation have a broad consensus among the people, and not result from the parochial interests of a minority or even a narrow majority. As matters of war and peace, treaties should reflect a strong Union, not a divided nation.

This principle led to the Treaty Clause, which empowers the president to negotiate treaties, but requires two-thirds of the Senate to approve them and—if necessary—to demand changes. This extraordinary requirement is really just an ongoing expression of the original decision to form a Union. And it has produced a system in which treaties routinely go through many iterations and rounds of negotiations, even after initial signature by the president. Treaties throughout our history carry scores of conditions, reservations, and amendments added by Congress, precisely to ensure widespread acceptance among the people.

This was in fact how the first treaty ratified under the Treaty Clause played out. The Jay Treaty with Britain—negotiated by a co-author of The Federalist—only gained Senate approval on the condition that Jay rework the treaty to add a clause regarding trade between the United States and the British West Indies.

Another principle of foreign policy rooted in the Constitution is that the Union must have a strong military, but one that is at the same time restrained and subject to the control of the people.

At the time of the Founding, a powerful and restrained military was something of an oxymoron. Federalist 11, for instance, states that a strong military—and in particular a strong navy—is vital not only to deter aggression, but also to secure and expand international trade. Yet Federalist 26 recognizes that military might has historically posed a grave threat to individual liberty. This presented what seemed to be a Hobson’s choice between a strong military and a weak military, both of which would threaten liberty over time.

But our Founders charted a way out of this dilemma. The Constitution empowered the president, as commander-in-chief, to defend against attack and take decisive military action where necessary. At the same time, it entrusted the people’s representatives in Congress with a wide range of foreign affairs powers as a means of fostering prudence, democratic control, and protection against tyranny. Thus only Congress can raise and support armies; only Congress may declare war and invoke the legal obligations and protections that this state of international relations confers; only Congress regulates foreign commerce, and with it control over important levers of influence with foreign nations in order to better relations, exact costs, and prevent war.