cedatopic
Thursday, May 11, 2006
Strike Down Statutes Resolution
I like the idea of a resolution that "the USSC should strike down as unconstitutional one of the following statutes . . . ." The statutes I would HIGHLY recommend:
(1) the Prison Litigation Reform Act (PLRA),
(2) the Antiterrorism and Effective Death Penalty Act (AEDPA),
(3) the Illegal Immigration Reform and Responsibility Act (IIRIRA),
(4) the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA),
(5) the Contract With America Advancement Act (CWAAA)
(6) the Adoption and Safe Families Act (ASFA)
What these statutes have in common: they were all passed in the last 10 years (by a conservative Congress and signed by Clinton), so there is lots and lots of very current and very interesting literature defending and criticizing them.
There are, however, several problems to consider with a "USSC strike down" resolution:
(1) No one advocates striking down an entire Act, so we really could not require the Aff to strike down an entire Act of Congress. However, Affs could get very, very, very small if they were to strike down only one section of a statute. For an example of how these things work, in a recent 11th Circuit case, United States v. Michael Williams, the court struck down the pandering provision of the PROTECT Act, a federal child pornography statute. The pandering provision prohibited the pandering of materials purported to be child pornography, so that provision was invalidated, but the rest of the PROTECT Act remains constitutional (e.g., the prohibition on the possession, production, sale, etc. of child pornography). We would need to devise a way to require the Aff to strike down a signifant portion of a statute, or at least recognize that there would be theoretically hundreds if not thousands of potential Affs.
(2) The most significant issue I foresee with a "USSC strike down" resolution is the obvious "Congress should repeal" counterplan. This CP obviously mitigates the potential for there to be thousands of Affs because there would be not very many that could withstand a "Congress should repeal" CP. Unless Affs could be creative in finding reasons for the Court to act, these debates could get seriously repetitive and I'm not sure the literature is very good at considering the possibility of Congressional repeal when discussing the unconstitutionality of a statute. If I were still debating, I would hate to have the same Court Strike Down vs. Congress Repeal debate every round. Others, however, may disagree. I am curious to hear people's thoughts.
Incidentally, the Congress CP was what motivated my proposed resolution in which the USSC must enlarge Congressional authority (by overruling one of its decisions limiting Congressional authority). The only agent CP to such an Aff would be a constitutional amendment because Congress could not simply pass a statute on the basis of authority that the USSC has previously stated it did not have (as with the RFRA, the VAWA, and many other examples I list in my first post).
(3) One way of imposing a limit on the Aff and encouraging alternative Neg CPs would be to specify the basis on which the statute must be ruled unconstitutional -- for example, "the USSC should strike down as unconstitutional on the basis of the First/Fifth/Fourteenth Amendment of the U.S. Constitution one of the following statutes . . . ." This way, the Aff is at least forced to defend a particular type of statute -- one that violates the chosen Amendment. I think the Fourteenth would provide the richest literature, because Affs could debate equal protection, procedural due process, and substantive due process (fundamental rights) as well as Congressional power (because section 5 of the 14th amendment is one of the more powerful sources of authority for Congress to enact legislation, notwithstanding recent neutering of such authority by the USSC). I also think that this addition to the resolution could lead to incredibly interesting CP debates involving competiting constitutional amendments (the 1st Amendment CP vs. a 14th Amendment Aff would be great fun to debate and there is actually lots and lots of literature on such things).
Lindsay Harrison
(1) the Prison Litigation Reform Act (PLRA),
(2) the Antiterrorism and Effective Death Penalty Act (AEDPA),
(3) the Illegal Immigration Reform and Responsibility Act (IIRIRA),
(4) the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA),
(5) the Contract With America Advancement Act (CWAAA)
(6) the Adoption and Safe Families Act (ASFA)
What these statutes have in common: they were all passed in the last 10 years (by a conservative Congress and signed by Clinton), so there is lots and lots of very current and very interesting literature defending and criticizing them.
There are, however, several problems to consider with a "USSC strike down" resolution:
(1) No one advocates striking down an entire Act, so we really could not require the Aff to strike down an entire Act of Congress. However, Affs could get very, very, very small if they were to strike down only one section of a statute. For an example of how these things work, in a recent 11th Circuit case, United States v. Michael Williams, the court struck down the pandering provision of the PROTECT Act, a federal child pornography statute. The pandering provision prohibited the pandering of materials purported to be child pornography, so that provision was invalidated, but the rest of the PROTECT Act remains constitutional (e.g., the prohibition on the possession, production, sale, etc. of child pornography). We would need to devise a way to require the Aff to strike down a signifant portion of a statute, or at least recognize that there would be theoretically hundreds if not thousands of potential Affs.
(2) The most significant issue I foresee with a "USSC strike down" resolution is the obvious "Congress should repeal" counterplan. This CP obviously mitigates the potential for there to be thousands of Affs because there would be not very many that could withstand a "Congress should repeal" CP. Unless Affs could be creative in finding reasons for the Court to act, these debates could get seriously repetitive and I'm not sure the literature is very good at considering the possibility of Congressional repeal when discussing the unconstitutionality of a statute. If I were still debating, I would hate to have the same Court Strike Down vs. Congress Repeal debate every round. Others, however, may disagree. I am curious to hear people's thoughts.
Incidentally, the Congress CP was what motivated my proposed resolution in which the USSC must enlarge Congressional authority (by overruling one of its decisions limiting Congressional authority). The only agent CP to such an Aff would be a constitutional amendment because Congress could not simply pass a statute on the basis of authority that the USSC has previously stated it did not have (as with the RFRA, the VAWA, and many other examples I list in my first post).
(3) One way of imposing a limit on the Aff and encouraging alternative Neg CPs would be to specify the basis on which the statute must be ruled unconstitutional -- for example, "the USSC should strike down as unconstitutional on the basis of the First/Fifth/Fourteenth Amendment of the U.S. Constitution one of the following statutes . . . ." This way, the Aff is at least forced to defend a particular type of statute -- one that violates the chosen Amendment. I think the Fourteenth would provide the richest literature, because Affs could debate equal protection, procedural due process, and substantive due process (fundamental rights) as well as Congressional power (because section 5 of the 14th amendment is one of the more powerful sources of authority for Congress to enact legislation, notwithstanding recent neutering of such authority by the USSC). I also think that this addition to the resolution could lead to incredibly interesting CP debates involving competiting constitutional amendments (the 1st Amendment CP vs. a 14th Amendment Aff would be great fun to debate and there is actually lots and lots of literature on such things).
Lindsay Harrison
posted by Lindsay at 5/11/2006 10:47:00 AM
¶ 1 comments
Wednesday, May 10, 2006
On "Overrule" and Resolutional Wording
In my mind, "overturn" means actually overturning the decision with respect to the two parties involved, whereas "overrule" means overturning the precedent set by the prior decision -- in other words, Lawrence didn't overturn Bowers because Hardwick's conviction still stands, but it did overrule Bowers because the due process clause now protects the fundamental right of adults to engage in private, consensual sodomy.
Even still, what happened is Lawrence is extremely rare -- the parties almost never ask the Court to overrule a prior decision unless it has the symbolic value of a Bowers. Normally, the parties will simply attempt to distinguish a prior decision to permit the Court to save face and side with them without admitting it got it wrong the last time. That's not to say that the Court doesn't overrule prior decisions -- it just happens very infrequently, and requiring the Aff to overrule a prior decision would give the Negative a pretty powerful "distinguish prior decision but reach the same result" CP with stare decisis net benefits. You may, therefore, want to consider resolutions that don't require the Aff to "overrule" a USSC decision.
A separate thought regarding overrule resolutions:
I previously proposed:
The major problem I see with this resolution is that the Aff could theoretically overrule one of those decisions on jurisidictional or some other procedural grounds (extra-topicality notwithstanding). To resolve this problem, the resolution might be modified to read:
Another solution would be to require the Aff to overrule the holding, as opposed to the decision. I think many of you have been referring to precedent in this way, but precedent includes the jurisdictional precedent (i.e., the Aff could overrule the precedent of Bowers by holding that the Court lacked jurisdiction to hear the case without overruling the holding of Bowers that there is no fundamental right to sodomy). The solution would result in a resolution like this:
Even still, what happened is Lawrence is extremely rare -- the parties almost never ask the Court to overrule a prior decision unless it has the symbolic value of a Bowers. Normally, the parties will simply attempt to distinguish a prior decision to permit the Court to save face and side with them without admitting it got it wrong the last time. That's not to say that the Court doesn't overrule prior decisions -- it just happens very infrequently, and requiring the Aff to overrule a prior decision would give the Negative a pretty powerful "distinguish prior decision but reach the same result" CP with stare decisis net benefits. You may, therefore, want to consider resolutions that don't require the Aff to "overrule" a USSC decision.
A separate thought regarding overrule resolutions:
I previously proposed:
The USSC should overrule one or more of its decisions holding
unconstitutional an Act of Congress because Congress lacked the constitutional authority to pass the Act.
The major problem I see with this resolution is that the Aff could theoretically overrule one of those decisions on jurisidictional or some other procedural grounds (extra-topicality notwithstanding). To resolve this problem, the resolution might be modified to read:
The USSC should increase Congress's legislative authority by overruling one or more of the Court's prior decisions holding unconstitutional an Act of Congress because Congress lacked the constitutional authority to pass the Act.
Another solution would be to require the Aff to overrule the holding, as opposed to the decision. I think many of you have been referring to precedent in this way, but precedent includes the jurisdictional precedent (i.e., the Aff could overrule the precedent of Bowers by holding that the Court lacked jurisdiction to hear the case without overruling the holding of Bowers that there is no fundamental right to sodomy). The solution would result in a resolution like this:
The USSC should overrule the holding of one of its prior decisions that an Act of Congress was unconstitutional because Congress lacked the constitutional authority to pass the Act.
posted by Lindsay at 5/10/2006 01:49:00 PM
¶ 1 comments
Tuesday, May 09, 2006
Lindsay Harrison letter
Hey there,
I'm procrastinating, so I thought I would offer some thoughts on the college topic. Feel free to post the following to edebate if you think it would be helpful.
I think that the "Overrule Supreme Court Precedent" topic could be a fantastic topic, depending entirely on the resolution.
My first meta thought -- instead of framing the topic as either one about Government Power or Individual Rights (as in the topic paper), I would propose the following areas as ideas for possible resolutions. I'm including some of the more interesting and criticized Supreme Court cases within each area, but this is by no means exhaustive -- these are just the cases that come to mind at the moment:
Congressional Power -- this resolution would state that the Supreme Court should overrule one of its decisions limiting Congressional power based on either federalism or separation of powers concerns. Cases would include: Lopez (Gun Free School Zones Act), Morrison (Violence Against Women Act), Fla. Prepaid (Federal Patent law), Garrett (Americans with Disabilities Act), Boerne (Religious Freedom Restoration Act), Kimel (Age Discrimination in Employment Act).
Equal Protection -- this resolution would state that the Supreme Court should overrule one of its decisions holding that a government action or law did not violate the equal protection clause of the 14th amendment. Cases would include: Washington v. Davis (held that policy with disparate impact on blacks was not unconstitutional without evidence of discriminatory intent), Gratz (affirmative action), Shaw v. Reno (racial gerrymandering), Milliken v. Bradley (school desegregation), Palmer v. Thompson (holding that city's decision to close all public swimming pools rather than integrate them did not violate the Equal Protection Clause because the city closed all swimming pools "equally")
First Amendment -- this resolution would state that the Supreme Court should overrule one of its decisions holding that a government action or law did not violate the First Amendment. Cases would include: US v. American Library Association (law conditioning federal funding to libraries on their use of filtering technology to filter out obscene internet content was constitutional), FAIR v. Rumsfeld (forcing schools to allow military recruiting did not violate schools' right of expressive association), Employment Division, Department of Human Resources of Oregon v. Smith (free exercise of religion case holding that a facially neutral law that infringes on certain people's religious expression is constitutional - the case held that a drug law was ok despite adversely affecting peyote-consuming Indians), NEA v. Finley (held that language requiring the Chairperson of the National Endowment for the Arts to ensure that "artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public," did not violate the First Amendment), Zelman (school voucher program doesn't violate Establishment Clause), .
Due Process - this resolution would state that the Supreme Court should overrule one of its decisions holding that a government action or law did not violate a citizen's right to sustantive due process. While you could also draft a resolution about procedural due process (the right to a hearing and/or notice before the government can deprive you of a benefit), I would think the most interesting types of cases would be the substantive due process cases, which concern fundamental rights, including the right to privacy. These cases might include Castle Rock (no fundamental right to government enforcement of restraining order), Glucksberg (no fundamental right to physician-assisted suicide), and Casey (no fundamental right to abortion because restrictions that don't place "undue burden" on women are constitutional). There would be some overlap with the privacy topic from years back. Note: You could combine the equal protection and due process resolutions by making it simply about the 14th amendment.
Plenary Power -- the resolution would state that the Supreme Court should substantially limit the plenary power of the Executive or Congress in one or more areas of the law by overturning one of its decisions -- cases would include the Chinese Exclusion Cases and other immigration cases, Curtiss-Wright and other foreign affairs cases, Johnson v. McIntosh/Cherokee Nation v. Georgia/ Worcester v. Georgia and other federal Indian law cases, and Downes v. Bidwell and other cases concerning the territories (e.g., Puerto Rico, Guam). Note: I think this topic might be the best if you wanted to avoid agent CPs -- Congress and the Executive couldn't deprive themselves of plenary power because it is a wholly judicial doctrine. You could write the topic narrowly, by requiring the Aff to overrule the decision which established plenary power in an area of the law, or more broadly, by having the Aff overturn any decision which relied at least in part on the plenary power doctrine.
My second meta thought -- I'm not sure you would need a list of cases if you defined the area of the law and the type of Supreme Court decision in a sufficiently specific way. For example, a topic about Congressional Power might simply say: "The USSC should overrule one or more of its decisions holding unconstitutional an Act of Congress on the basis that Congress lacked the constitutional authority to pass the law." You could get more specific and say "The USSC should overrule one or more of its decisions holding unconstitutional an Act of Congress on the basis that Congress lacked the constitutional authority to pass the law pursuant to either the Commerce Clause or Section 5 of the Fourteenth Amendment." You could also add a temporal limitation ("one of its decisions from 1975 to the present"). Those resolutions would be adequate to establish a resolution on Congressional Power and would allow a wider variety of cases than a "list the cases" resolution but still within reasonable limits.
Those are my 2 cents.
Cheers,
Lindsay
I'm procrastinating, so I thought I would offer some thoughts on the college topic. Feel free to post the following to edebate if you think it would be helpful.
I think that the "Overrule Supreme Court Precedent" topic could be a fantastic topic, depending entirely on the resolution.
My first meta thought -- instead of framing the topic as either one about Government Power or Individual Rights (as in the topic paper), I would propose the following areas as ideas for possible resolutions. I'm including some of the more interesting and criticized Supreme Court cases within each area, but this is by no means exhaustive -- these are just the cases that come to mind at the moment:
Congressional Power -- this resolution would state that the Supreme Court should overrule one of its decisions limiting Congressional power based on either federalism or separation of powers concerns. Cases would include: Lopez (Gun Free School Zones Act), Morrison (Violence Against Women Act), Fla. Prepaid (Federal Patent law), Garrett (Americans with Disabilities Act), Boerne (Religious Freedom Restoration Act), Kimel (Age Discrimination in Employment Act).
Equal Protection -- this resolution would state that the Supreme Court should overrule one of its decisions holding that a government action or law did not violate the equal protection clause of the 14th amendment. Cases would include: Washington v. Davis (held that policy with disparate impact on blacks was not unconstitutional without evidence of discriminatory intent), Gratz (affirmative action), Shaw v. Reno (racial gerrymandering), Milliken v. Bradley (school desegregation), Palmer v. Thompson (holding that city's decision to close all public swimming pools rather than integrate them did not violate the Equal Protection Clause because the city closed all swimming pools "equally")
First Amendment -- this resolution would state that the Supreme Court should overrule one of its decisions holding that a government action or law did not violate the First Amendment. Cases would include: US v. American Library Association (law conditioning federal funding to libraries on their use of filtering technology to filter out obscene internet content was constitutional), FAIR v. Rumsfeld (forcing schools to allow military recruiting did not violate schools' right of expressive association), Employment Division, Department of Human Resources of Oregon v. Smith (free exercise of religion case holding that a facially neutral law that infringes on certain people's religious expression is constitutional - the case held that a drug law was ok despite adversely affecting peyote-consuming Indians), NEA v. Finley (held that language requiring the Chairperson of the National Endowment for the Arts to ensure that "artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public," did not violate the First Amendment), Zelman (school voucher program doesn't violate Establishment Clause), .
Due Process - this resolution would state that the Supreme Court should overrule one of its decisions holding that a government action or law did not violate a citizen's right to sustantive due process. While you could also draft a resolution about procedural due process (the right to a hearing and/or notice before the government can deprive you of a benefit), I would think the most interesting types of cases would be the substantive due process cases, which concern fundamental rights, including the right to privacy. These cases might include Castle Rock (no fundamental right to government enforcement of restraining order), Glucksberg (no fundamental right to physician-assisted suicide), and Casey (no fundamental right to abortion because restrictions that don't place "undue burden" on women are constitutional). There would be some overlap with the privacy topic from years back. Note: You could combine the equal protection and due process resolutions by making it simply about the 14th amendment.
Plenary Power -- the resolution would state that the Supreme Court should substantially limit the plenary power of the Executive or Congress in one or more areas of the law by overturning one of its decisions -- cases would include the Chinese Exclusion Cases and other immigration cases, Curtiss-Wright and other foreign affairs cases, Johnson v. McIntosh/Cherokee Nation v. Georgia/ Worcester v. Georgia and other federal Indian law cases, and Downes v. Bidwell and other cases concerning the territories (e.g., Puerto Rico, Guam). Note: I think this topic might be the best if you wanted to avoid agent CPs -- Congress and the Executive couldn't deprive themselves of plenary power because it is a wholly judicial doctrine. You could write the topic narrowly, by requiring the Aff to overrule the decision which established plenary power in an area of the law, or more broadly, by having the Aff overturn any decision which relied at least in part on the plenary power doctrine.
My second meta thought -- I'm not sure you would need a list of cases if you defined the area of the law and the type of Supreme Court decision in a sufficiently specific way. For example, a topic about Congressional Power might simply say: "The USSC should overrule one or more of its decisions holding unconstitutional an Act of Congress on the basis that Congress lacked the constitutional authority to pass the law." You could get more specific and say "The USSC should overrule one or more of its decisions holding unconstitutional an Act of Congress on the basis that Congress lacked the constitutional authority to pass the law pursuant to either the Commerce Clause or Section 5 of the Fourteenth Amendment." You could also add a temporal limitation ("one of its decisions from 1975 to the present"). Those resolutions would be adequate to establish a resolution on Congressional Power and would allow a wider variety of cases than a "list the cases" resolution but still within reasonable limits.
Those are my 2 cents.
Cheers,
Lindsay
posted by Steve Mancuso at 5/09/2006 02:47:00 PM
¶ 0 comments
