Is Taiwan the Next Hong Kong?
China Tests the Limits of Impunity
IN due course Senator Borah has been made Chairman of the Committee on Foreign Relations. He has come into this high estate not by election of the people or by choice of his own party but under the rule of seniority. He has outlasted his predecessors. I mention this fact because it establishes his independence at the outset. A man who has attained an office because he is alive and because he continues to be elected by the people of Idaho is under no great compulsion to regard himself as the mere mouthpiece of a President or of a Secretary of State. Deo volente, he will survive them both. If only he continues to eat moderately, to exercise regularly, to sleep well, and to keep about half the voters in the State of Idaho on his side, he can look with cool detachment on any suggestion that issues from the White House.
The ordinary inducements to conformity count for little in Mr. Borah's case. There are many more voters on the island of Manhattan alone than in the whole State of Idaho; with such a small constituency to nurse Senator Borah does not have to worry about the favors and threats of the national administration. His constituency is manageable. He can really talk to it and make a direct personal contact with the local leaders who dispose of votes. No wonder his faith in an appeal to the people is unshaken, for there are so few people to whom he has to make his appeal. A loyal following of less than seventy-five thousand voters in Idaho is enough to make his reëlection certain. Mr. Borah does not need to worry. A national administration cannot help or hurt him much.
But he can help or hurt the Administration. He is the greatest figure in the Northwest, and the Northwest is about as warmly attached to the Republican Party as the Irish Free State is to the United Kingdom. The Northwest votes Republican in Presidential years, and then forms a coalition with the Democrats against almost all major Republican policies. President Coolidge and the Republicans of the East know that there are good reasons for being very kind to Senator Borah. For although he has never actually run away as Roosevelt did in 1912, there is something about him which suggests that he might. He is allowed to go his own way, therefore, in the reasonable hope that if he is given enough space to roam about within the party, he will find it convenient to stay inside the party.
Thus it has come to pass that wholly domestic considerations have given Mr. Borah a peculiar independence in international affairs.
He exercises the power of protest and of veto. It is a power exactly suited to his temperament. For Senator Borah has little interest in what is usually called constructive statesmanship. He is not possessed by a desire to make two institutions grow where one grew before. He does not like and he does not trust officials and committees and administrative hierarchies and executive orders and large payrolls and pensions. When some one comes to him with a proposal for elaborating the machinery of society, be it to maintain peace, to protect children, or to pension and instruct mothers, it is no lack of interest in the object but a congenital dislike of the machinery which brings him finally into opposition. Borah was born and bred on the frontier far from the complexity of modern civilization; it is in his bones to distrust formality and collective red tape, and to rely upon direct speech, common knowledge, individual salvation and his own conception of the sovereign power of the moral law. The strain of Jefferson, and of Rousseau, of the Reformers before them, runs strongly in Borah. He believes in the natural goodness of man, and, when that goodness is deficient, in the natural right of man to be damned in his own way. Thus recently he wrote to me, quoting Buckle, that "the most valuable additions made to legislation have been enactments destructive of preceding legislation." The real business of the statesman, in his philosophy, is not to construct institutions for the regimentation of men but to tear down those vested follies of the ages which thwart the natural goodness of mankind. Therefore, when Borah considers a new proposal he does not ask himself: What does this add to the machinery of living? Borah asks himself: Does it subtract from a machinery which is already top-heavy? Thus, the word constructive casts no spell upon him; he has read history with a deeply protestant mind and has concluded that what statesmen have usually constructed is a prison house for the soul.
It follows inevitably that the career of Borah is built upon opposition. He has been against the League, and against the Court, and against the Pacific Pact, and against the British funding arrangements, and against the Wilson-Hughes Russian policy, and against the Caribbean policy, and against the Isle of Pines Treaty, and against the exclusion of Count Karolyi and Mr. Saklatvala, and against the alien property administration, and against the bonus, and against the Child Labor Amendment, and against Coolidge Republicanism, and against LaFollette insurgency. He is an instinctive conscientious objector, and his mind seizes swiftly upon the reasons why anything that is about to be done should not be done. His passion is to expose, to ventilate, to protest, to prevent and to destroy. Since he does not have a hankering to create institutions, pass laws, or facilitate agreements he has no use for the reticences and frustrations that are required in public affairs. Thus, for example, he was once arguing with Senator Brandegee that treaties should be discussed publicly in the Senate, and Mr. Brandegee had made the point that too much plain speech might give offense to foreign countries. "What are these delicate questions," retorted Senator Borah, "which may offend foreign powers? These delicate questions are too often questions of dubious righteousness." Only a man who has risen by appealing to audiences rather than by making executive decisions would, I think, have said that.
Now ordinarily such a man would find himself extremely unpopular in a country where the passion for doing something, or even anything, is so highly regarded. He would be labelled a chronic kicker and dismissed from the society of the righteous and the efficient.
That has not been Senator Borah's fate. It may be that he has lost a little in prestige since he became the Chairman of the Committee on Foreign Relations. Many people say he has, but I am not so sure they are right. For they are the same people who think that the whole term of Mr. Coolidge will be like the present honeymoon when nobody is seriously dissatisfied with anything. It is in the nature of things that a great protestant like Borah should lose lustre in a time of fabulous complacency and contentment. But as surely as there will be new causes for discontent, so there will be a revival of Borah's influence. For in the existing confusion and paralysis of the Democratic Party he is the natural rallying point of the opposition.
In America today anyone who is out of sorts with anything thinks first of Mr. Borah. That is why he has grown great on opposition rather than weak by his chronic objecting. Within the last few years most of the large blocs of voters have been more deeply opposed to something than they have been eager for anything. The internationally minded wanted the League and the Court but Borah touched their hearts by his outspoken opposition to the Ruhr, by his Russian attitude, his Haitian attitude, and his Chinese. The strong nationalists deplored Borah's affection for the underdog nations, but where could they find a champion comparable to him in their fight against cooperation with Europe? He delighted the upper classes in the East with his attack on the bonus, and he delighted the people of the West by his attack on the international bankers who desire an easy settlement of the debts. He opposed the Child Labor Amendment and pleased the conservatives, and he opposed the suppression of free speech and pleased the liberals. Mr. Borah has not become an outcast like most objectors because he has made common cause at one time or another with every influential group.
On whichever side he fights he is a host in himself, and those who have had him as their champion in one cause readily forgive him for all the pet projects of theirs which he has brought to nothing. Borah is a very inspiring man to have on one's own side of the argument. He knows what is theatrically effective, he has an air of common sense, a resourcefulness, and an eloquence, which have made him the most successful debater in the Senate. He has a still greater quality than these. Borah's opposition has no poison in it. For some subtle reason, Borah does not make enemies of his opponents. One would expect that a man who had fought everybody's dearest project at one time or another would be hated throughout the land. Borah is not hated anywhere. On the contrary there is not a gathering from a bankers' convention to a communist meeting where Borah is not respected. He was the one irreconcilable enemy of the League with whom the friends of the League were on friendly terms. He has opposed almost everybody and has embittered almost nobody.
This is due in part to the liking which everyone feels for a man who is known to be brave, in part also to his vitality and his poise, and to the sense that he is not bitten and driven by jealousies and animosities. There is a natural well-ventilated health in Borah which distinguishes him from the run of overfed, tobacco-laden, anecdotal indoor politicians. But there is also a deeper ground of confidence. Borah's opposition has nothing exotic about it. He is not against this or that because he believes in strange doctrines. When a man denies he also affirms, and Borah always affirms the oldest American traditions and the simplest popular prejudices. He believes in helping the underdog, in distrusting powerful foreigners, in distrusting politicians, in preserving the Constitution, and in holding on to the taxpayer's money. When Borah is in opposition to the Child Labor Amendment nobody thinks he wishes to exploit children; when he opposes the League nobody thinks he is a militarist and a jingo; when he opposes the Haitian occupation nobody supposes he has fallen in love with the Haitians; and when he pleads for Russia, mirabile dictu, nobody, not even the most furious patrioteer, thinks he is in the pay of Moscow. He has fought the battle of the jingo and the pacifist, the reactionary and the radical, and yet he has not merged his identity with any of them.
It would not occur to Senator Borah, I think, that he must sacrifice any of his liberty of action because he had become Chairman of the Committee on Foreign Relations. He has always spoken his mind on all subjects, and he continues to speak it. If he does not like French policy in Morocco, or British policy in China, he says so just as plainly as if he were still a mere Senator. If he does not like what he hears about the intentions of the President in respect to the French debt, he says so loudly and publicly. He feels perfectly free to indulge in running comment on the acts of foreign powers, on the domestic affairs of other nations, on their statesmen and their national habits, on their ambitions and supposed purposes, and on any and all negotiations however delicate at any time while they are in progress. He is not concerned apparently about the difficulty which foreigners experience because they do not know whether they are being lectured by William E. Borah of Idaho or by the Senate of the United States as a coordinate part of the treaty-making power.
He feels himself privileged to use the prestige of his office to promote the influence of his opinions. The ensuing troubles of the Executive do not break his heart, and the demands of all institutions that men suppress themselves and conform mean very little to him. Mr. Borah is a confirmed bachelor who somehow finds himself married to the Executive. I do not say he will be unfaithful, but heaven pity the Executive if it expects Borah to worry about the whole darn family.
As a matter of fact he regards it as his high duty to watch the Executive with the utmost suspicion. The history of secret diplomacy in Europe has made a deep impression on him and he believes that the wars and miseries of mankind are due chiefly to the irresponsible intrigues of diplomats. He has also a sublime faith that legislatures and popular majorities are in the nature of things pacific and just. It is the very essence of his philosophy that bad deeds are done in the dark, and that light brings righteousness. I have never detected the quiver of a doubt on his part that this is one of the eternal verities, but also I do not recall any attempt on his part to consider the weight of popular prejudice which beats upon a statesman who might wish to appease the Japanese, or to deal rationally with debts and reparations. It is a fundamental fact about Borah that he accepts the dogma of open diplomacy at face value.
It will be a decisive fact in the immediate future of our foreign relations that Senator Borah looks upon the ancient prerogatives of the Senate as suited to the practice of open diplomacy. Other chairmen of the Committee, Senator Lodge for example, have been jealous to maintain the rights of the Senate against the President, but they have been moved, if I read them correctly, by the inveterate desire of all men to hold and extend a vested right. But Mr. Borah is moved by a passion to thwart evil by publicity, and the powers of the Senate are for him a means to that end. He is more determined than Mr. Lodge ever was to make the Senate a major partner in diplomatic affairs, for Mr. Borah plays no favorites and cares nothing, where Mr. Lodge cared much, for the unity and glory of the Republican Party. Mr. Borah's insistence on the role of the Senate is inspired, therefore, by a faith that meant little to Mr. Lodge. It is a faith in the ultimate righteousness of an appeal to the people. If the Senators were consulted and if the Senators advised, Mr. Lodge was satisfied. He insisted that the President recognize the Senators. Mr. Borah, on the other hand, conceives it to be the duty of the Senate to force the President to consult the whole electorate.
Thus Senator Borah is engaged in trying to turn the treaty-making powers of the Senate into the means to a very open popular diplomacy. The experiment will be well worth watching because surely there can be no doubt that with the increase of contact across frontiers various interests within each nation are bound to play a larger part in the conduct of foreign policy. It has ceased to be possible for diplomacy to be in the sole keeping of the head of the state. The Executive must obtain the advice and consent of many people if his engagements with a foreign nation are to be binding. The question is whether the Constitutional powers of the Senate under Article 2, Section 2, can be stretched to cover this new need.
They were not designed to make possible an open diplomacy. The authors of the Constitution certainly did not suppose that they were compelling the President to open up the whole conduct of foreign policy to popular discussion. The Federalist commends Article 2, Section 2, because it "provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity and deliberate investigation on the one hand, and from secrecy and dispatch on the other." In another place the writers of The Federalist argue that the House of Representatives is not fit to participate because "decision, secrecy and dispatch are incompatible with the genius of a body so variable and so numerous." It is plain that the authors of the Constitution thought that the President would consult in secret with a small body of men; there were only twenty-six Senators at that time, and the President needed only to convince about eighteen of them. The House which the fathers rejected as too variable and too numerous was then smaller than the present Senate. It consisted of only sixty-five members. President Washington himself tried once to consult the small Senate of that day about the treaty with the Creek Indians, and had such an unpleasant time that he never tried it again. Later when the House asked him for information about the Jay Treaty he refused, saying that "the nature of foreign relations requires caution and their success must often depend on secrecy."
While it is clear enough what the authors of the Constitution meant, they did not state what they meant very clearly. The phrase "advice and consent" is so vague that it left room for a large development of our constitutional practice. Thus by the beginning of the twentieth century the powers of the Senate had, at least in the opinion of Senator Lodge, grown to the point where the Senate virtually had the right to negotiate independently with a foreign power. The doctrine of Lodge is worth looking at here, for our hero, Mr. Borah, has adopted it and is making the fullest possible use of it.
The doctrine was enunciated by Mr. Lodge in an article written for Scribner's Magazine in 1902 and reprinted by the Senate in 1921. Mr. Lodge felt that a little lecture on American constitutional law was in order, for Lord Lansdowne, then Secretary of State for Foreign Affairs, had evinced a regrettable inability to understand the Senate. The noble Lord said he was puzzled by the behavior of the Senate in amending the Hay-Pauncefote Treaty; he complained that contrary to well-established international usage His Majesty's Government, "without any previous attempt to ascertain their views," had suddenly been confronted with a new proposal. Lord Lansdowne was used to dealing with foreign offices but he had never yet been asked to conduct a diplomatic negotiation with a branch of the legislature.
Mr. Lodge proceeded, icily and firmly, to set him right:
"Mr. Hay and Lord Pauncefote open a negotiation for the modification of the Clayton-Bulwer Treaty . . . . After due discussion they agree upon and sign a treaty. That agreement, so far as Great Britain is concerned, requires only the approval of the King for its completion, but with the United States it is very different, because no treaty can be ratified by the President of the United States without the consent of the Senate. . . . But he (Lord Lansdowne) does not seem to have realized that the Senate could properly continue the negotiations begun by Mr. Hay and Lord Pauncefote by offering new or modified propositions to His Majesty's Government." (Italics mine.)
A treaty drawn by the President in agreement with a foreign power is still "inchoate," said Mr. Lodge; it is "a mere project for a treaty." And so a foreign power which sets out to make a treaty with the United States must deal first with the State Department at one end of Pennsylvania Avenue and then with another State Department at the other end. Lord Lansdowne must have found that very strange. He had not yet learned that a diplomatic affair with the United States is like a two volume novel in which the hero marries the heroine at the end of the first volume and divorces her triumphantly at the end of the second.
In asserting these powers of the Senate Mr. Lodge planted himself on the meaning of the Constitution. In the interpretation of this clause it is a case of each man his own oracle, for if one thing is clear it is that the Fathers had no very prophetic idea of how they meant Article 2, Section 2, to work. Hamilton wrote a paper on the subject for The Federalist, and the paper is one of the least illuminating he ever wrote. But in one clause of a sentence devoted to a very different subject he speaks of obtaining "sanction in the progressive stages of a treaty." Although this does not bear out Senator Lodge's notion that the Senate could "continue the negotiations" by itself, it does seem to say that the Senate was to advise and consent not merely on the completed treaty, but step by step in the negotiations.
The moral of it all is that the Constitution itself is so ambiguous that it could be stretched to cover any workable arrangement. The real difficulty for Mr. Borah or for anyone else who wishes to see the legislature play a serious part in diplomacy is that large bodies of men cannot conduct a negotiation or initiate a policy. As a general rule they can only approve or disapprove propositions presented to them. The Senate can accept or reject a treaty; it can even occasionally adopt amendments proposed by Senators; it can make reservations. The Congress can declare war; it can appropriate money or refuse to appropriate money to carry out an international obligation. Yet these powers, great as they are, control only a very small area of diplomatic action. At the most they may be sufficient to compel the President to consider whether he can enlist the support of the legislature for the policies he is pursuing. The President is like a general with a somewhat mutinous army on his hands; he cannot be sure his troops will follow him. Occasionally his troops will run away from him. But whether his troops obey or disobey they do not determine the strategy of the campaign. He determines the strategy in the light of the support he can muster.
The attempt of a legislature to control foreign policy is in the nature of things an attempt to make the tail wag the dog. Congress alone, for example, has the power to declare war. But the President has the power to make war and to put Congress in the position where it must either back him up or haul down the flag. The Executive who believes a war is necessary can create a situation where Congress really has no choice. He can occupy ports, shoot off the cannon, and get himself embroiled so that no patriotic legislature will refuse to help him out. It is something of a fiction to say that Congress alone can declare war. It is nearer the truth to say that Congress has a theoretical right to decide whether a war which has already begun shall be continued. But Congress has no power to say how long the war shall be continued. For the President can make an armistice when he chooses.
The power of the Senate over treaties is no less elusive. In theory no covenant binding the action of the United States can be made without its consent; in fact every President makes decisions which are binding without the consent of the Senate. He may do this by exchanges of notes, by gentlemen's agreements, by the mere fact that when the President does one thing something else follows by the logic of necessity. The intervention of the Senate when formal treaties are presented to it occurs in the presence of a mountain of accomplished facts. The Senate can tinker a little with the text, but as a general practice it must take it or leave it. And even if the Senate takes the treaty, the real meaning of the treaty eludes the Senate because the power of interpretation and administration remains with the Executive. "Whoever hath an absolute authority to interpret any written or spoken laws," said Bishop Hoadley, "it is he who is truly the law-giver to all intents and purposes."
How very elusive is the legislative control of foreign affairs may be seen by a remarkable memorandum in the Roosevelt papers.[i] On July 29, 1905, the Japanese Premier, Count Katsura, had a "conversation" with a personal representative of President Roosevelt. This spokesman, who remains anonymous to this day, was not a member of the State Department. The conversation was secret, and the agreed memorandum of it was confirmed by a telegram from the President. It is a statement of Roosevelt's Far Eastern policy, and contains the following passage:
"The Count well understands the traditional policy of the United States . . . and perceives fully the impossibility of their entering into a formal alliance . . . with foreign nations, but in view of our common interests he could (not) see why some good understanding or an alliance in practice if not in name, should not be made between these three (Britain, Japan and the United States) nations, insofar as respects affairs in the Far East. With such understanding firmly formed, general peace in these regions would be easily maintained to the great benefit of all concerned.
"(The American spokesman) said that it was difficult, indeed impossible, for the President of the United States to enter even to an understanding amounting in effect to a confidential informal agreement, without the consent of the Senate, but that he felt sure that without any agreement at all the people of the United States was so fully in accord with the people of Japan and Great Britain in the maintenance of peace in the Far East that whatever occasion arose appropriate action of the Government of the United States, in conjunction with Japan and Great Britain, for such a purpose could be counted on by them quite as confidently as if the United States were under treaty obligations to take (it)."
All this was quite correct no doubt for it explicitly disclaims a formal alliance. But it was none the less a secret understanding about a great international question, and the Senate was not consulted. This is not an isolated case. One could duplicate it, I believe, many times in the administrations of other Presidents because the necessity of reaching agreements with foreign powers overrides all theory. President Roosevelt at the time wrote to George Kennan, who had proposed an open alliance with Japan and Britain, that he was "talking academically. . . . I might just as well strive for the moon as for such a policy as you indicate. Mind you, I personally entirely agree with you." And yet he gave Count Katsura fairly definite assurances, much in the spirit of a man who obeys the Volstead Act but has a refined bootlegger.
The effort of the Senate to control the conduct of foreign affairs is bound to be spasmodic, to be feeble as a general rule, but now and then powerfully obstructive. A continuous control in the present state of the world is out of the question. As long as the relations between great states remain essentially combative, until, if ever, their relations are reduced to established law and a formal, orderly, and leisurely procedure, the open, popular control of diplomacy which Mr. Borah desires will remain largely an aspiration. It is incompatible with the prevailing anarchy of heavily armed sovereign states. It is suited only to a pacific world in which there are no dangerous decisions to be made, in which any question can be debated and bungled without fatal damage in the rough and tumble of legislatures and elections. The internal peace of the United States is so profound that the methods of Congress are at the worst an inconvenience. But the peace of the world is so fragile that those same methods would convulse it in an unending agitation.
It is the fundamental paradox of Mr. Borah's career that he combines a passion for open diplomacy with a passionate objection to every step toward that world organization under which open diplomacy might ultimately become feasible. Unless he changes more than most men of his eminence change at his age, it is too much to expect that he will resolve that paradox. Mr. Borah is not the kind of man to subject himself to the labor of following through in a patient way the implications of his own ideal. He is a self-sufficient man with great confidence in the promptings of his own conscience. He shrinks instinctively from a train of thought which might compel him to revise certain of his passionate negations, and from a course of action which it would be difficult to explain to large audiences. The definite pursuit of the ideal of open diplomacy would carry him into regions where he is not at home, into fields of cooperation which are unsuited to his temperament.
For he is a virtuoso who plays by ear. He is a powerful obstructor of good and of evil, always gallant and sometimes perverse. Amidst trimmers and place warmers he is a gadfly to the bureaucratic and the toplofty. He is an immense advertisement for the idea of open diplomacy. Like the universe and like the weather the only thing to do about Borah is to accept him. You will find him very useful tomorrow, and you should not complain, then, if he leaves the confused relationship of the President and the Senate no less confused, and the anarchic relations of sovereign states no less anarchic. A man, even when by accident he becomes Chairman of the Committee on Foreign Relations, does not change his character.
[i] For text cf., Tyler Dennett, "Roosevelt and the Russo-Japanese War," p. 112.