257 C. THE DISCUSSION IN THE CONSTITUTIONAL CONVENTION CONFIRMS THE SETTLEti) UNDERSTANDING OF OUR TREATY-MAKERS AND OF THE SUPREME COURT THAT AMERICAN TERRITORY MAY BE CEDED BY TREATY 1. The discussion of the treaty power in the Constitutional Convention plainly discloses the awareness of the framers that treaties might f requently be a mechanism for the cession of territory. Indeed, as Mr. Berger's Addendum shows, this awareness manifested itself more than once in proposals to surround the treatymaking process with Special safeguards 'when it involved the -cession of territory. 2. One such proposal would have stipulated "that no Treaty shall be made without the concurrence of the House of Representatives, by which the territorial boundaries of ;the United States may be contracted. . ." IV Farrand, "The Records of the Federal Convention of 1787" (1937 ed.) 58. This proposal, advanced on September 7, 1787-very late in the Convention's deliberations"was then debated, but the motion does not appear to have been made." 3. The lapsed motion of September 7 evidently reflected concern at the great power proposed to be lodged in two-thirds of the Senate. But there were counterconcerns-some members of the Convention were troubled at permitting onethird-plus-one of the Senate to block treaty ratification. Thus, on September 8, Rufus King "moved to strike out the 'exception of Treaties of peace' from the general clause requiring two-thirds of the Senate for making Treaties," and James Wilson then urged that "the requisition of two-thirds . be struck out altogether." And at this point, "A reconsideration of the whole clause was agreed to." II Farrand 547-48. 4. In the course of the ensuing debate, Roger Sherman Stated that he "was against leaving the rights, establishedby the Treaty of Peace, to the Senate and moved to annex a 'Proviso [sic] that no such rights should be ceded without the sanction of the Legislature.'" According to Madison's notes, "Mr. Gov. Morris seconded the idea of Mr. Sherman." Nonetheless, the proposal of September 8' like the proposal of September 7 does not appear to have ever been put to a Vote.. 5. Mr. Berger, in his Addendumn, mentions the Septenmber 7 proposal -!nd speculates on the inference -to be drawn from the failure of the Convention to pursue the matter: "Why was the motion not made after debate? Presumably, the matter was postponed for consideration ['when Article IV,] Section 3(2) would come up for discussion. During this subsequent discussion of 'The Legislature shall have power to dispose of . the territory . .' it is singular that no mention V,s made of an exception for disposition under the treaty power. 1I Farrand 46. Nonmention is the more remarkable because such an exception would carve out an area of undefined mag itude from the power confrred, a matter which would affront the democratically minded who placed their faith in the House. It seems more reasonable to infer from the history tbat Article TV, Section 3(2) w~s designed to set at rest the fears that territory might be ceded without the concurrence of the House." (3. Mr. Berger's inference might he thought to have some modest plausi bility if the iscussion of Article IV, 3 (2), to which Mr. Berger refers (the discussion summarized at IT Farrand 466), had in fact been "subsequent" to the discussion of the treaty power. But it was not. The discussion of Article IV 3(2) referred to by 'Mr. Berger took place on August 30, a little over a week prior to the debate on the treaty power adverted to above. Conclusion As noted earlier in this memorandum, the thesis put forward by Mr. Bergr is essentially the narrow Jeffersonian conception of the treaty power which would "outlaw treaties on matters as to which Congress could legislate domestically"a conception which "has now been long dead." Henkin, supra, at 149. In a sense, then, it seems anomalous to be reexamining this ground in 1978. And the anomnaly is only underscored by the fact that in our own time, the major constitutional debate about the scope of the treaty power has been of a wholly different nature: Can the treaty-makers, through the exercise of their authority to act oii all matters of international concern, empower Congress to enac-t legislation going beyond its specifically enumerated grants of power? Yes, the Supreme Coirt beld, in fisoui v. I1lland.' Is the treaty power then wholly unrestrained, 61252 U.S. 416 (1920).