The Constitution provides that presidents nominate officers and make treaties. But nominations and treaties become effective only “by and with the Advice and Consent of the Senate.” Many have argued that the word “Advice” means the president must ask the Senate to make recommendations before submitting his proposals. Others believe the Senate may create guidelines or criteria the president must follow.
But that has not been the historical practice. Generally the president has merely submitted nominations and treaties to the Senate without prior consultation—other than politically expedient, informal consultation with certain influential Senators.
Can we recapture what the framers and ratifiers meant by “Advice and Consent?” And if so, is historical practice correct? Or are those correct who believe the Constitution requires prior senatorial input?
My new article in Federalist Society Review examines a wide range founding-era documents in search of an answer. I reviewed 18th century dictionaries, royal charters, early state constitutions, wills and other legal instruments, and legislative materials. The article concludes that the historical practice is correct.
During the 18th century, when “advice” (and the verb “advise”) appeared in the same phrase with the preposition “with,” the word meant deliberation or consideration. In fact, the correct rendering of the constitutional phrase is not “Advice and Consent of the Senate” but “with the Advice and Consent of the Senate.
And what it signifies is “with the deliberation and consent of the Senate.” The word “advice” referred to normal legislative debate and consideration.
