For the Record

I had a different post planned for today, but the reactions to my last post make me think I should spend a little more time on some things. As you may recall, the last post discussed how the United States often enters treaties with other nations under what is called an "executive agreement." Under U.S. law, the President can enter into these executive agreements without the approval of anyone else in the government.

This is important because the U.S. Constitution says one of the branches of Congress, the Senate, must consent to all "treaties" by a margin of two-thirds. The proprietor of The Blackboard, lucia, has used that requirement to justify insulting a journalist and what he's written about an international treaty known as the Paris Agreement.

There is some confusion here because under international law the Paris Agreement can be a treaty even though it is only an executive agreement under U.S. law. This confusion contributed to lucia writing a completely misguided post. Rather than correct her errors, lucia has since double down on them by making up quotations and even flat-out saying the U.S. Constitution says things it does not.

For today's post, I'd like to review some things people have been saying and set the record straight on a number of factual matters. I don't expect it to do much good, but I can't just ignore people making things up.

The central point in lucia's continued defense of her post appears to be that she believes using the word "ratify" means one is referring to a treaty, not an executive agreement. For instance, she wrote:

Voosen is using terms that imply he is claiming it is a treaty (i.e. “ratify” and later “bound”.) My discussion therefor addresses that premise. Had he used language indicating “executive order” I would have posted a discussion based on the premise in his post. I preferred to stick to discussing on his premise.

This is a troubling comment as the article lucia criticizes never once uses the words "ratify" or "bound" (it does use "ratification" once). That means lucia has misquoted the article in an immediately obvious way.

lucia repeats this behavior in a later comment where she writes:

Steven Mosher,
You are correct that I am using the American definition– especially with regard to international agreements. We in the US use “ratify” very specifically precisely because that word is in the constitution. I wouldn’t be at all surprised that the PA choses “ratify” precisely to give the impression that the signatories has taken the formal actions required to bind their countries.

The word "ratify" is not present in the Constitution. This is the text of Article II, Section 2, discussing the President's authority in regard to foreign matters:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Notice the word "ratify" never shows up in any form. This section discusses how the Senate must approve of treaties by a two-thirds margin, but contrary to what lucia says, it never uses the word "ratify." It doesn't use any form of the word. In fact, there are only two cases where ratification is discussed in the Constitution at all. The first time is in Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate

This is a discussion of how amendments can be made to the Constitution which explains the process by which states can ratify new amendments. That has nothing to do with foreign relations.

The other case where ratification is discussed is found in Article VII:

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

This discusses how the Constitution itself could be ratified. Again, it has nothing to do with the President's authority in foreign relations. This shows despite what lucia says, the word "ratify" never appears in the United States Constitution. Moreover, despite lucia's portrayal, the topic of ratification never comes up in the Constitution in regard to any discussion of foreign relations or presidential authority. lucia says:

You are correct that I am using the American definition– especially with regard to international agreements. We in the US use “ratify” very specifically precisely because that word is in the constitution.

To justify having criticized and insulted a person for writing an article by saying the article was talking about a "treaty" under U.S. law rather than an "executive agreement." To accomplish this, she has misquoted the article she criticized, misquoted the Constitution and simply made things up about what the Constitution actually says.

The reality is high school civics classes do tend to teach students all international treaties must be approved by the Senate. Because most people don't know more about the details of government than what they learned (and hopefully remember) in school, many people may think the word "ratify" can only be applied to "treaties," not "executive agreements."

In fact, I doubt most people are even aware "executive agreements" are a thing. lucia's post makes me think she had never heard of them. I don't think her readers had either. Nobody at her site made any mention of executive agreements prior to me bringing the topic up. If they knew about executive agreements, many of the things said there were disingenuous. As lucia put it, she and her readers must be "either intentionally misleading or totally ignorant."

It will be interesting to see if lucia or her readers ever acknowledge these misquotations. I wouldn't count on it. Instead, I would count on more pettiness and hostility, like:

Brandon is utterly disconnected from reality in this case, which is, sadly, more common than not for him. Really? What a jerk.

Which may actually be a violation of lucia's rules for her site as she forbids rhetorical questions unless one provides his or her own answer to the question. I don't really care about that, but I think it might provide some insight into the standards of behavior being used there.

Similarly, you might recall my previous post included this near the beginning:

Now, I'm not sure why lucia says there was an agreement "called the Paris Climate Accord." The name of this international agreement is the "Paris Agreement." It is sometimes called the "Paris climate accord" as it is a climate accord, but that doesn't make it its name. That error is probably unimportant, but I feel it is worth clarifying basic facts.

As I noted at the time, I didn't think the error was important. I just thought it was good for people using proper nouns to use the correct proper nouns. This caused one of lucia's commenters, Steven Mosher, to go off:

“Brandon, your post seems to ignore the substance of what we’re discussing. ”
And this shocks you????
Who but Brandon would waste words on calling it the Paris Accord ( Accord de Paris or some such shit) or the Paris Agreement.?
Seriously.. who but Brandon?
One FUNCTION of naming and discourse is to allow people to communicate about the same thing… typically a thing that is not
“present” in front of them. If a locution gets people talking about the same thing… it has served its purpose. Its not like ANYONE here was confused by the term Accord as opposed to Agreement. Language was working just fine.. Lucia could have refered to it as the DPCT
Damned Paris Climate Treaty and we all would GET what she was refering to. Only people who dont understand how language functions ( socially) would stop to point out “well technically its called and agreement.. ( its a fundamentally narcissistic move to correct others when no correction is warranted)
Imagine youre at thanksgiving dinner and your granny says “pass the tators, darling” What kind of social nitwit would say ” Grandmother, the proper term is mashed potatoes” Nope, you’d know exactly what she meant, and you’d pass her the damn potatoes.
Now if for some reason you had mashed potatoes and tator tots at the table, you might say “Granny? you want the tator tots or mashed potatoes?’ And she would say ” bless your heart child, I meant the mashed potatoes, you must remember how much I love then.” “Of course Granny, and you want butter not gravy right?”
Then of course the social awkward basement dwelling 12 year old bright nephew would say “Actually, she asked for tators, and that indicates she wants the tator tots”. I know I used to be that guy.
I read the dictionary to try to figure out what people meant.

All that because I had the audacity to point out somebody had used the wrong proper noun. It's rather strange. I sincerely doubt anyone at a family dinner would think it unreasonable for a person to say, "I think you meant Bob, not Tom, granny" when she got someone's name wrong. Maybe lucia's commenters would though.

That may not seem important, and it really isn't, but I wanted to highlight this comment because again we see one of lucia's commenters breaking her prohibition against (unanswered) rhetorical questions. I find that interesting. It appears the disregard some people feel for what is written extends beyond media articles and the United States Constitution to also cover things like a site's rules for commenting etiquette.

7 comments

  1. If you have three witnesses to an incident and they are quoted as follows:
    "I saw him run down the road"
    "I watched him as he ran down the road"
    "He was running down the road"

    Given that 'run', 'ran' and 'running' are three different words, at least two of the witnesses must be either ignorant or misleading.

    Same issue for 'ratify' and 'ratifying'. Often, particularly in conversation people discuss ideas and concepts and language can become flexible. I appreciate your efforts to be meticulous, but wonder if this might be a step too far? Do the big ideas (whether right or wrong) become substantively _different_ because of that level of semantic change in that type of forum?

    Anyway - I'll continue reading as I do appreciate your contributions.

  2. I removed a sentence from this post that wasn't necessary and was inaccurate. The sentence said Congress had nothing to do with the amendment process, but of course, Congress can be involved in the amendment process as Congress can propose an amendment. I had meant to discuss how Congress doesn't have to be involved in the amendment process since state legislatures can propose and pass an amendment without Congress's involvement, but even then, our current approach has Congress do the logistics of the process (state legislatures send what they vote on to Congress which then collates and counts them).

    Rather than diving down that hole rabbit to clarify the point, I think it's best I just remove the line. It was superfluous anyway. I just wanted to make a note of the change in case anyone sees the original text.

  3. Peter Green:

    Same issue for 'ratify' and 'ratifying'. Often, particularly in conversation people discuss ideas and concepts and language can become flexible. I appreciate your efforts to be meticulous, but wonder if this might be a step too far?

    I think you may have misunderstood a bit of what I said. This post does discuss the fact the word "ratify" never appears in the Constitution, but that is only one aspect it covers. After discussing the cases where forms of "ratify" show up in the Constitution, I say:

    Moreover, despite lucia's portrayal, the topic of ratification never comes up in the Constitution in regard to any discussion of foreign relations or presidential authority.

    The issue I discuss isn't just whether or not the word "ratify" is used in the Constitution. lucia said people in the United States use "'ratify' very specifically precisely because that word is in the constitution." My point is twofold:

    1) The word "ratify" is not in the Constitution.
    2) When "ratify" shows up in other forms in the Constitution, it has nothing to do with treaties or who has what authority to make them.

    In the hope it might head off further confusion and draw more attention to point number two, I've added the line, "It doesn't use any form of the word" to the paragraph after I quote Article V. I say the same thing later in the post, but maybe stating it earlier (and more than once) will make it harder to miss.

  4. Quick question. I edited my above comment slightly, but I just realized it sent me to an admin page to do it. That worked since I'm an admin, but it made me realize one of my plugins might not be working. There's a plugin that should allow you to edit your comments for the first 15 minutes after they've been posted. I'm not sure it's working. Could you guys let me know?

  5. Thanks for letting me know. It looks like the plugin I had installed broke at some point during a WordPress update. I never noticed because there's always an Edit button displayed to admins. I'll have to see if I can find a replacement. I tried one that gets rave reviews out for a little while but the buttons it gives look ugly given the visual theme of this blog. I just want simple text buttons.

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