As if it were that easy!
The first problem is that the phrase "judicial activism" has negative connotations. In common usage, an activist judge is one who is doing something you don't want that judge to do. The seemingly opposite term, "judicial restraint," sounds so much nicer. Restraint sounds so much more "judicial" than the concept of active/action. Which means that the dice are loaded before aff even opens the debate.
For that matter, there's a judge sitting in the back of the room during the round. Do you want an activist judge or a restrained judge? Which do you think would give you the most fair adjudication of the round?
So there is a negative mindset in the literal language, if not necessarily in the gist of the resolution. This requires the affirmative to define the terms very carefully in language not as loaded; it may even require to aff to point out that the language is problematic and to reframe the rez in terms that will make for a more useful debate. Because, as the aff can point out, the question of judicial activism is one of the most important facing the US today, as we face an aging Supreme Court with 2 replacements in this very session. The principles by which we choose judges, and by which judges act, are of paramount importance to our society today. And that's what we should be discussing.
The good news is, if you can get past that barrier, it ought to be clear sailing. Sure, there's all sorts of anti-resolutional stuff weaselly debaters can pull out of their nether regions, but the question is simple, and it's simply stated in the rez: Is judicial activism necessary for rights protection? There was marginal discussion last night of whether the word necessary is a stumbling block, but I don't see it. The aff must argue that JA would or can or has done things that otherwise would not have happened. If the ends of JA would have happened anyhow, through legislative or executive action, then the JA could not have been necessary. True enough. But it was posited that negs would simply argue the necessity bit, which seems to me awfully weak if that's all they've got. To wit, it was said, if the neg could show the same results would happen some other way, then JA isn't necessary. True, but again, I can't imagine a weaker position (short of a Michel Saucisse pomo kritik). The negative ought to be able to come up with clear evidence not simply that "there's other ways," thus positing the whole thing on necessity, but that JA is wrong. Bad. Anti-democratic. Just as the aff will claim that it's right. Good. Pro-democratic by protecting rights. In a nutshell, the difference between a real, resolutional debate, and phogna balogna debate. Choose your fancy.
The main question is, how do we best achieve the just protection of rights in the US? Do you think it's entirely by laws and executive power? (Personally, if you do, you haven't been reading the papers since 1999, at the very least). Some JA may, in fact, be irrelevant to the rez. If the election of Bush by a vote of 5 to 4 in the 2000 election isn't JA, I don't know what is, but it's hard to see how that applies here. It was offered in our brainstorming that somehow JA was abridging the rights of the electorate by prioritizing the judiciary over the legislative, and I guess an argument could be made in that direction, but a simply tyranny of the majority block ought to knock that out.
I popped over to my local neighborhood Federalist Paper for the odd gander this morning. Number 78, if you care. And the Montesquieu quote is relevant. Of course, I know you. You have no intention of doing any real research on the powers of legislation and the judiciary. You just want to win, you spalpeen!
All right. I give up. I'll lend you my copy of Saucisse for Schlemiels. It's got to be around here somewhere.
Noah sent me this
ReplyDeleteDate:
Thu, 27 Oct 2005 11:16:16 +0200
From:
"Noah Grabowitz"
Subject:
Blog Comment to your "Topic Analysis" (if we can call it that)
I wish, for the sake of this topic, that you weren't so wrong in what
you say here but, unfortunately, that is the case. In short, you are
quite literally defining the topic as the one you want to debate and
intentionally obscuring what the topic actually says. This is why it
is a bad one. It is a strict empirical question (to the extent that
we can conceive of a clear, numerical measuring strict for when "the
rights of American citizens" are protected). As much as it might make
for a more enjoyable two months of debating, you can't make the
resolution say what you want it to say; in this case, the resolution,
if properly worded, would be fair to both sides. But if you can
always make the resolution what you want "we really should be
debating this instead", you're doing nothing better than moronic,
modern-day resolutional critiques that plague debate, even if they're
for the better.
I was gonna try not to write a tome on this subject but that's just
not me.
As I understand it, the resolution says, "Judicial activism is
necessary to protect the rights of American citizens." Just look at
the sentence.
You're right that the term "judicial activism" is problematic; in
reality, it will only make it more difficult for dumb kids to do
research because they won't learn to use more objective search terms
that refer to what we know the resolution really means. Judicial
activism is a modern day conservative talking point, which makes it a
poor choice from the topic wording committee, but you can always
define the term broadly. The term was coined really to refer to the
most egregious abuses of SCOTUS power but, really, that's just
describing a difference in the extent of the action but not its
character. I'd say just accept what JA always is: an interpretation
of a statute without complete regard for the plain meaning of the
words of the law. Modify as you wish but define something that is
defensible, or at least refer to synonyms without such negative
connotations (mostly in the literature. Regular people have no idea).
Is JA done with liberal intentions i.e. extending rights (note:
research the supreme court practice, I forget what it's called but it
was basically invented by Stevens, to, basically, rule that, when in
doubt, we do whatever "protects more rights." I could elaborate in a
more intelligent way but I think you get the idea.)? These days,
usually. But JA, as defined above, was done for a long time; it used
to be the liberals making textualist, even originalist arguments about
the need for a strict adherence to the plain meaning of the words in
the law (I started writing out the explanation for this fact but it
was taking too long). Really, it doesn't matter ñ the critical point
is that JA is distinct from alternative methods of judicial
philosophy. Now this begs an important question: is ruling according
to the strict wording of decisions made on court precedent an act of
JA? Scalia says yes, others in The Federalist Society say no. But
that doesn't matter, given the meaning of the rest of the words in the
resolution.
Unfortunately, I think your kids got it right. Just look at the
phrase: "is necessary to protect the rights of American citizens."
Since we play logic games, refer to the principle of necessity.
WordNet says that necessity is " the condition of being essential or
indispensable." So our project is this: test JA against all other
conceivable judicial philosophies and if JA is not essential (which
American Heritage defines as "necessary"), the resolution is untrue.
Now you can play with the other phrase in the resolution. Perhaps you
say that means that in order to protect rights, the debate ought to
consider which side protects more rights. While this is a/the worthy
topic of conversation, JA may protect some rights but not all. Yet
what plain meaning of the words would suggest that protecting two
rights is not an instance of "protecting the rights" of Anerican
citizens, as in all of the rights Americans have.
American Heritage refers to this sentence in defining necessary: "The
necessities of life include food, clothing, and shelter." This
resolution can be rephrased according to this sentence as "The
[necessity to] protect the the rights of American citizens is a court
that operates according to the practice of judicial activism.
How do we test whether a variable is a condition for necessity? Well
without that which is necessary (X), Y cannot follow (simple logic you
learn in your first philosophy class (THE KIDS DON'T READ ANY FORMAL
LOGIC. CHANGE THIS!!!).
Now we can really get to the resolution. If JA is essential (see
previous def.) to protecting all rights, the resolution is true. If
we find any empirical facts to the contrary, then the resolution is a
no-go. And note something: the resolution says THE rights of American
citizens so as long as we can define what those are (properly the most
debatable area for debate), we're at the point where we want to be.
And the phrase "the rights" unfortunately implies all rights, which
makes the AFF almost impossible to defend. What if no particular
approach to interpreting laws protects "the rights of American
citizens" and is just more proper (which is probably a true claim)?
Then, while the condition that all rights can hypothetically protected
is impossible, JA then is clearly not essential to doing so; it
presumably hasn't done it (evidence on this point should not be hard
to find) so its not necessary to achieve this conceivable yet perhaps
improbably end. You might be able to argue that some JA is necessary
but the "all rights" requirement makes this all just very messy.
There's a contradiction: all interpretive philosophies protect some
rights but not others. We really just want to know, as curious
people, which system does that best. No sane advocate on either side
of the issue would say their view is perfect, just better. The
resolution demands perfection.
Here's where you contradict your original, proper interpretation of
the question and conflict in the resolution: "Is judicial activism
necessary for rights protection?". But then you go on an offbeat path,
reminiscent of the Rocky sequels and most of my diatribes (not this
one). Here's what you say (actually before you introduce your
paraphrasing/borderline quoting of the resolution): "the question of
judicial activism is one of the most important [issues] facing the US
today, as we face an aging Supreme Court with 2 replacements in this
very session. The principles by which we choose judges, and by which
judges act, are of paramount importance to our society today. And
that's what we should be discussing."
So we should be discussing the importance of the principles be which
we "choose" judges? This is a totally different discussion; there
can be lots of commentary on this question not it would be hardly
germane to the resolution. Is a judicial philosophy democratic?
Certainly one can say yes and yet conclude that JA is not necessary to
prove the claim (not easy, but perhaps doable. Maybe a better example
of the question is whether "JA is necessary to break down the
principle of complete separation of powers." But really, because I
think "rights" are inherently at issue when evaluating a philosophical
approach to interpreting legal statutes and the constituion, we really
just want to know whether JA or some alternative (there's no reason
not to compare against the mainstream, widely discussed judicial
advocated by GENIUSES like Scalia) does this better? Can another
system protect rights? Strict constructionists would concede the
point -- yes, JA has the effect of protecting some rights but it is
innappropriate for myriad reasons, including, but not limited to the
fact, that it denies other rights we might define as fundamental.
This is what you say the debate is about when its really just the more
interesting question: "The main question is, how do we best achieve
the just protection of rights in the US? Do you think it's entirely by
laws and executive power?". "Just protection of rights"? Where is
that in the resolution? Moreover, your second question begs the
actual question of the resolution; it really asks "Does JA best
achieve the just protection (?) of rights in the US." You're
conceding that JA but also alternatives, protect rights. Which one
does it better? That's the question we pose to advocates of judicial
activism. It is not the empirical question the resolution asks.
The difficulty of the resolution, defining the coniditions under which
rights are protected, is at least surmountable; like I said before, we
can simply agree on some things. But the plain meaning of the term
"is necessary" asks you to measure whether only JA can register on the
rights protection scale. If other approaches that wholly exclude JA
can succeed, JA is not essential.
No one likes resolutions that are true by a matter of fact and don't
ask a question of morality. The normative question of whether JA is
good is distinct from the empirical question that asks whether rights
protection is possible without JA. So define rights protection and
test out whether it can be done another way (since we're not SCOTUS
judges, we have to rely on our testing of their practices, both JA and
something else. But there is an answer, an empirical, measurable
truth).
The previous resolution, which I'm sure was bungled, asked a very
similar type of question: " In matters of U.S. immigration policy,
restrictions on the rights of non-citizens are consistent with
democratic ideals." Is this true or not? Define the conditions for
consistency and measure whether restrictions on the rights of
non-citizens meets the requirements for consistency with democratic
ideals.
I don't find the Nov-Dec question very interesting. Frankly, I think
it obvious that JA is not necessary to protect some rights (implying
all of the rights) of American citizens (you'll never convince me that
Roe v. Wade was not an act of JA but I believe in the right of women
to have an abortion. So JA has worked in limited cases when no other
philosophy could have (or maybe some philosophy that's not JA could
have but we just didn't have a court inclined to go that route. But I
digress). The neg can backpedal so far to argue that it may be
necessary to protect certain rights but that strict constructionism
can protect many other rights so JA is not NECESSARY to protect them
all (for example, strict constructionism would uphold the right to
unbiased treatment before the law, by a definition of the term that I
could easily defend. JA, therefore, is unnecessary as a judicial
philosophy to protect this right.
Therefore, the debate just comes down to the evidence. And while
interpreting it may be difficult, that's at least the debaters' job.
And they're bad at that so a resolutional debate wouldn't be very
good. But that's the only option you have; the move to make the
debate more interesting might be welcomed by some but it is simply not
proper.
I really know a lot about this, in a debate sense especially, so I'd
be happy to help out the team in preparing to debate it. At least I
think I can help them learn to read.
Also, I'm gonna be at Bump and I don't want to judge. Isn't their any
crucial, more prestigious position you can appoint me to. Ombudsman
comes to mind.
Noah
I don't think my point was clear. I don't think we should be arguing about picking supreme court justices. I merely think that a topic about the court is relevant in a time of picking supreme court judges.
ReplyDeleteAs usual, Noah's mostly right, but he's also not really disagreeing with what I said at the meeting. But this clarifies.
Obviously I agree with Noah seeing as I am the one who brought up the whole neccesity thing. As a negative, you really shouldn't lose a round on this topic. However, I don't think it is fair to say that it has to be able to protect all rights in every situation. There are plenty of theory arguments that you can make about that round because the negative should be obligated to do SOMETHING. I think that the affirmative should attempt to limit the debate to unjust legislation or rather legislation that is imperfect, but consistant with the rhetoric of the constitution or other statutes. At that point, the affirmative stands a slight chance. The problem with affirming is that judicial activism is rarely needed and is imperfect in a lot of ways. First off, there are just so many ways to overthrow "unjust" legislation, especially with the intense partisanship that exists today. A president with a different set of morals than the legislature can overthrow a decision, the legislature itself can overthrow a decision, and I would even go as far to say that international organizations can change our policies to a certain extent if they are egregious enough. The partisanship part is especially important. Who is to say that the judges are more moral or have the rights of the people closer to their hearts than the president or congressmen? Right now republicans dominate congress, they occupy all the major executive positions, and now they are going to control the Supreme Court. At that point, judicial activism can't really do much at all or at the very least won't make too much of a difference because we have the same ideas on all three levels of government. Second, because of partisanship and the overall issues of the current day, there is no such thing as "protecting rights" because the judicial system is in charge of deciding between conflicting ideologies. Abortion is a pretty good example. We protect rights either way, but at the same time we restrict others. This means that we can't really weigh judicial activism using a scale of rights protection in any pragmatic way, which as Noah points out is what the resolution is asking us to do. Third, I think the resolution almost obligates us to talk about the Supreme Court. State constitutions conflict in regards to who has authority over who and what court deals with what offenses. Plus, the supreme court takes precedence over all of the other courts and since we have a limited amount of time, we are pretty much stuck with it. This means that we have to deal with the messed up supreme court that we have now with an inexperienced chief justice and a potential lacky. It just makes it really hard for the affirmative to uphold anything. Lastly, and this is more of a technical thing than anything else that I am unsure about but still think it is worth saying, is that the resolution says protect. What exactly is protecting rights? Menick talked about a good example of this in his introduction. If the president didn't enforce Brown vs. Board, could we really say that it protected rights? A negative that is at least worth writing should say that neccesity urges solvency to a certain degree and judicial activism at best can establish precedent. It is a pretty sleezy argument that doesn't engage the topic to a great extent, but it is extremely strategic and will win just about every round because I think that it is true. So there are four problems with affirming in general off the top of my head. Couple that with everything Noah said and we have an extremely negative bias with this resolution. I guess the problem that we all are going to have is thinking of unique arguments for affirming. I am yet to hear something other than something along the same lines as Brown vs. Board and that makes blocking out affirmatives very easy. If I have a negative bias to the resolution and at least three flaws with affirming in general, AND 15 or so responses to just about every affirmative case, well, lets just say I look forward to negating.
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