College Policy Debate Forums

TOPIC COMMITTEE => 2013 - 2014 Topic => Topic started by: gabemurillo on May 31, 2013, 10:29:40 AM



Title: Requests for the Topic Committee
Post by: gabemurillo on May 31, 2013, 10:29:40 AM
I will be traveling this weekend and will be unable to follow the broadcasts and notes from the topic committee until after the fact so I thought I'd post two requests here:

1) Please include passive voice options on the resolution ballot. This would not only show an important concern for a multiplicity of styles of debate, but would also, in my opinion, produce a topic which focuses more on the legal issues involved with the topic. If we are going to enforce topic rotation it makes sense to me to make every effort to make this as much of a legal topic as possible. It would also help affirmatives avoid the "slayer" negative arguments that have been discussed on these forums in favor of in-depth debates about the justifications for war powers. So if your major concern is avoiding an amendment cp style debacle or your concern is about a more open community a passive voice makes sense.  In addition if we want to give our students a variety of educational experiences and diversity in researching skills (which I believe is the point of topic rotation) it would make sense to focus this legal topic on legal reasoning. I would strongly urge participants to push topic committee members on the educational benefits of their decisions, after all only a small number of our students will be competing for a spot in late elimination rounds at the NDT, but all of our students will hopefully be learning from the topic. Lets not forget the vast majority of our students when we construct this topic.

2) I'm not sure if this is the norm or not but I would love to know specific voting breakdowns. Not just vote counts but how specific committee members voted on each question. Transparency and accountability are things that the CEDA organization should advance in all areas including but not limited to these topic votes.

Thanks and good luck!

gabe


Title: Re: Requests for the Topic Committee
Post by: Jim Schultz on May 31, 2013, 11:42:53 AM
1) I would like to echo Gabe's call for inclusion of a passive voice option on the ballot. In the past the ballot for the resolution has had little distinction between the list of resolutions. Passive voice was done before, debate actually had higher numbers of participating schools and teams then. Really, the sky won't fall. 2) If not passive voice, can we at least get more than one "stem" on a list of resolutions? If the ballot has 5 choices that all share a common stem but change which WP's are tacked on, then this allows very little meaningful choice.
3) transparency is good.


Title: Re: Requests for the Topic Committee
Post by: antonucci23 on May 31, 2013, 12:01:25 PM
I strongly agree with all points by Gabe and Jim.

-- A passive voice wording is the best route to actual legal debates.  The CEDA membership voted for topic rotation.  Committee members should function as representatives.

-- A passive voice wording enjoys the support of a substantial portion of the community.  Stripping the passive option from the ballot would do a great deal of violence to the ideals of "meaningful choice" and "democratic inclusion" frequently (and, IMO, sincerely) espoused by members of the topic committee.

"Disenfranchisement" is a strong word.  If the topic committee opts to exclude this very meaningful choice, I believe it would be an appropriate one.


Title: Re: Requests for the Topic Committee
Post by: RW Evans on May 31, 2013, 12:23:43 PM
Passive voice is bunk.

First, it would devastate negative ground by stripping it of important CP ground, specifically agent CPs.  In addition, it would devastate K ground if the AFF doesn't have to defend the state, or specifically the USFG.  And to the extent that the actor cannot be easily predicted beforehand, it would be potentially limitless with the host of individual and international actors that could act to reduce thew president's war power.  And, if these are not options...the what is the point?

Second, passive voice is the best way to avoid the central legal question regarding who ought to be empowered to make certain decisions related to war power and not the larger public policy question of whether limitless detention, wiretapping or drones are good or bad.  Passive voice would essentially focus the debate on those questions, which has nothing to do with presidential power and everything to do with government power period.  This is why both agent and amendment CPs are absolutely essential to the legal questions surrounding this topic.  

Third, passive voice does nothing to alleviate concerns regarding compulsory role play or diversity.  The resolution doesn't require role play, judges do.  It's a judge made rule.  Take the USFG out of the resolution and the negative will still make the normative argument that the Aff should have to defend USFG action.  Alternatively, they will argue that, at a minimum, the affirmative has to specify an agent, which will result in a proliferation of theoretical arguments in a time when we need less.    

Lastly, including a passive voice option does not increase meaningful choice and cannot ensure inclusion, especially when the topic itself was selected to limit choice and exclude.  Democracy is not the path to meaningful choice here and transparency is a joke.  These are all process arguments that largely ignore that we are getting exactly what the community wants and that all these calls for democracy and transparency only highlight this.  If you want better options, certain people should be left out of the process and certain options must be denied.

-RW


Title: Re: Requests for the Topic Committee
Post by: jonahfeldman on May 31, 2013, 01:19:40 PM
I'm having trouble wrapping my mind around what a passive voice resolution would mean.  If folks who are in favor could help clear this up it would be useful for everyone to know what they're voting for (at least, in theory).

Is the idea that if we had a resolution which said "The war powers of the President should be restricted" that there would be a discussion in the abstract of whether or not the war powers of the President should be restricted that would occur without a discussion of what it would happen if the government actually acted to restrict those war powers?  What would that look like?

Is the purpose to:
a) Avoid a discussion of the politics DA
b) Avoid a discussion of other disads/kritiks/counterplans that are based around the consequences of the government acting
c) Have an alternate agent who restricts the President, for example saying something like "we as individuals should be restricting the government"
d) All or none of the above?

Why would this mean more focus on legal debates?



Title: Re: Requests for the Topic Committee
Post by: antonucci23 on May 31, 2013, 01:28:12 PM
It could mean a lot of things.  Debates would have to resolve that question.

There was a resolution like this before, in 93-94.  (Debate didn't explode.)

I think that teams who prefer to discuss the topic without defending a course of action by the USFG could potentially find more space to do so under such a resolution.

Of course, teams invested in discussing policy proposals could and would do so under such a resolution.  Almost all CINC debates were traditional policy debates. There would be a negative T argument that "restriction" means "codified restriction" as well.

A passive statement - "should be restricted" - allows for actual legal debates, because legal debates don't revolve around normative policy prescriptions.  They often revolve around whether certain cases were correctly decided.  Will Mosley-Jensen hit this one out of the park in a previous post.

The counterplan question throws this distinction into sharp relief.  The relative superiority of constitutional amendments have no bearing at all on the legal question of whether war powers should "be restricted".


Title: Re: Requests for the Topic Committee
Post by: jonahfeldman on May 31, 2013, 01:43:54 PM
"It could mean a lot of things.  Debates would have to resolve that question."

It's a reasonable expectation that the actions taken by the topic committee should have an intended effect on the experience of the debaters.  There will, of course, always be a disconnect between what the topic committee intends and what actually happens, but that doesn't mean we should operate under the strategy of "we don't really know what this means but lets find out." I'm not looking for exact play by plays of every single speech that will happen on the topic, just a general idea of how you're thinking this will go down.

"There was a resolution like this before, in 93-94.  (Debate didn't explode.)"

a) Debate was very different in 93/94.  
b) I think it's unlikely that anything will cause debate to explode, but resolutions can make the experience of the debaters better or worse.  You think passive voice would make resolutions better, and I'd like the voters to understand what changes in debate will happen under a passive voice resolution to allow those improvements to occur so they can decide if those changes will be successful at meeting those goals and whether or not they might make things worse.

"I think that teams who prefer to discuss the topic without defending a course of action by the USFG could potentially find more space to do so under such a resolution."

That much is clear.  How and why?

"Of course, teams invested in discussing policy proposals could and would do so under such a resolution.  Almost all CINC debates were traditional policy debates. There would be a negative T argument that "restriction" means "codified restriction" as well."

If that's true then I'm not sure what's changed.  It seems like in policy vs policy debates people will act as if the resolution says USFG should.  In non-policy vs non-policy debates the teams will not focus on what would happen if the USFG acted.  In policy vs non-policy debates the neg can still say framework (especially if they can say restriction means codified restriction)  What's different?

"A passive statement - "should be restricted" - allows for actual legal debates, because legal debates don't revolve around normative policy prescriptions.  They often revolve around whether certain cases were correctly decided.  Will Mosley-Jensen hit this one out of the park in a previous post."

So you're saying debates will revolve around questions like "what's the precedent on this issue" or "does X ruling accurately reflect constitutional doctrine?"




Title: Re: Requests for the Topic Committee
Post by: antonucci23 on May 31, 2013, 02:07:05 PM
"It could mean a lot of things.  Debates would have to resolve that question."

It's a reasonable expectation that the actions taken by the topic committee should have an intended effect on the experience of the debaters.  There will, of course, always be a disconnect between what the topic committee intends and what actually happens, but that doesn't mean we should operate under the strategy of "we don't really know what were doing but let's find out!" I'm not looking for exact play by plays of every single speech that will happen on the topic, just a general idea of how you're thinking this will go down. 

It will have an effect.  Attempts to micromanage those effects, however, have met with general dissatisfaction.  There's a good argument for letting the community decide what their resolution means, which I believe.  This isn't just deliberate opacity on my part.

I hope my comments successfully steer between the Scylla of overly precise prediction and the Charybdis of your caricature.  I just want to leave space for people who may alternate ideas of how these debates proceed, and insert a small caveat about the futility of overly detailed prediction.

Finally, it is just not really the committee's first job to dictate the terms of debates.  It's their job to provide the community with meaningful choice, which is related to but clearly different from straightforward management of debates.

YOU made a claim that it's the best route to legal debates.  Can you please explain why that is and what you're talking about?

I did, in an edit.  I'll run through examples:

A. Citizens United was wrongly decided <- legal, debated in courtrooms
B. Citizens United should be overturned <- not legal, normative policy question

A. War powers should be restricted <- legal
B. The USFG should restrict war powers <- not legal

The relative desirability of a constitutional amendment is not a legal question.  It would be irrelevant to the questions posed by A, but all-too-relevant to the questions posed by B.

"There was a resolution like this before, in 93-94.  (Debate didn't explode.)"

a) Debate was very different in 93/94. 
b) I think it's unlikely that anything will cause debate to explode, but if we're looking for a change in the resolution I'd just like the voters to understand what that change is trying to accomplish and how it accomplishes it. 

I think I provided that, although it was in edits.

"I think that teams who prefer to discuss the topic without defending a course of action by the USFG could potentially find more space to do so under such a resolution."

That much is clear.  How and why?

Certain versions of passive voice topics would not include the USFG as an actor?

"Of course, teams invested in discussing policy proposals could and would do so under such a resolution.  Almost all CINC debates were traditional policy debates. There would be a negative T argument that "restriction" means "codified restriction" as well."

If that's true then I'm not sure what's changed.  It seems like in policy vs policy debates people will act as if the resolution says USFG should.  In non-policy vs non-policy debates the teams will not focus on what would happen if the USFG acted.  In policy vs non-policy debates the neg can still say framework (especially if they can say restriction means codified restriction)  What's different?

Maybe nothing, but if some people think it's meaningful, inclusion wins in a push, certainly?

The negative can certainly argue framework, and say that the negative should be forced into a non-resolutional constraint.  Such arguments, though, help focus the debate on the normative question of what debate should be - as opposed to topicality, in which the negative can simply defer to the more straightforward question of relevance.

If a team wished to discuss the broader question of the legitimacy of presidential war powers, as opposed to a specific legislative roadmap for their rollback, I certainly think they'd have more space to do so under these resolutions.  The negative would still have a framework argument, but they would have to make a more concerted effort to defend their impacts than they would in a topicality debate.  Topicality (often) allows the negative to sidestep these impact questions entirely.

I hope that clarifies.


Title: Re: Requests for the Topic Committee
Post by: jonahfeldman on May 31, 2013, 02:28:12 PM
I re-edited too, which has created some confusion.  Can you respond to the last part of the re-edit about legal topics:

"So you're saying debates will revolve around questions like "what's the precedent on this issue" or "does X ruling accurately reflect constitutional doctrine?""


Title: Re: Requests for the Topic Committee
Post by: yackob on May 31, 2013, 03:02:20 PM
Quote
A passive statement - "should be restricted" - allows for actual legal debates, because legal debates don't revolve around normative policy prescriptions.  They often revolve around whether certain cases were correctly decided.  Will Mosley-Jensen hit this one out of the park in a previous post.

Quote
I did, in an edit.  I'll run through examples:

A. Citizens United was wrongly decided <- legal, debated in courtrooms
B. Citizens United should be overturned <- not legal, normative policy question

A. War powers should be restricted <- legal
B. The USFG should restrict war powers <- not legal

I agree that Will brought up an interesting point about what actual legal debates look like versus what policy debate calls legal debates.

But I'm quite skeptical that writing a war powers resolution using the passive voice would lead to more quality legal debates. It seems like what would happen is:

Aff: the executive shouldn't have X war power because that was a bad interpretation of the constitution or X line of precedent.

Neg: who cares, those powers solve nuke war

This definitely wouldn't make debate explode. We have these debates now. They're in LD and they're terrible.

Perhaps nuke war shouldn't trump other considerations to the extent it does in debate. But I think most of us know it does now and has yet to be defeated by much better ethics arguments.

Perhaps the "this case was wrong decided" cases could develop better advantages based on shifting to a better line of precedent. But those would just be advantages to affs under a traditional usfg should resolution so those cases wouldn't really be instances of the passive voice expanding the scope of what is debated.    

Is there something I'm missing? Or are we just talking about getting rid of the amendment CP?


Title: Re: Requests for the Topic Committee
Post by: gabemurillo on May 31, 2013, 03:44:32 PM
"So you're saying debates will revolve around questions like "what's the precedent on this issue" or "does X ruling accurately reflect constitutional doctrine?""

I can give an example from the 2006-2007 courts topic. One of Andy and my affirmatives defended a passive reading of the resolution. We advanced two arguments

1) the legal reasoning behind the original decision was wrong and served as a justification for campaigns of violence
and
2) we should change what we consider acceptable evidence in legal debates

We were still able to advance arguments about legal precedent having consequences (ie the war on terrorism) without being beholden to debates about the courts political capital or different political actors. The negative still had ground to advance several arguments including (but not limited to)

1) the legal reason was correct
2) we should limit the evidence in legal debates
3) the war on terrorism is good

From that experience I can imagine debates being about the legal reasoning and logic of executive war powers - and to me that's what legal debates are about. I think other people want debates about the politics of the law - but I think that's completely different. If we voted for topic rotation for educational reasons it makes sense to me to have legal topics that force students to research the legal logic and reasoning instead of prescribing political solutions to legal problems, and I believe the passive voice topic achieves this.

That being said - I think these questions about the passive voice are great and this is a debate to be had - but I would hope the uncertainty of some does not serve as a justification for blanket rejection of a passive voice OPTION on the ballot. Give people the option - let them reject it, but certainly there is a sufficient group of people who believe that a passive voice makes a better legal topic.

gabe


Title: Re: Requests for the Topic Committee
Post by: jonahfeldman on May 31, 2013, 04:35:15 PM
If we voted for topic rotation for educational reasons it makes sense to me to have legal topics that force students to research the legal logic and reasoning instead of prescribing political solutions to legal problems

Its an interesting arg, but im not sure passive voice actually forces those debates.  If thats what were trying to do lets be explicit about it and make the topic something like "Based only on arguments acceptable in a court of law the war powers of the president should be restricted"

My concern is that the amount of flexibility provided by agentless passive voice topics will actually move debates away from legal discussions


Title: Re: Requests for the Topic Committee
Post by: gabemurillo on May 31, 2013, 04:55:31 PM
Its an interesting arg, but im not sure passive voice actually forces those debates.  If thats what were trying to do lets be explicit about it and make the topic something like "Based only on arguments acceptable in a court of law the war powers of the president should be restricted"

That's fair - force was probably the wrong term, maybe "facilitates" or "encourages" would have been better words.

My concern is that the amount of flexibility provided by agentless passive voice topics will actually move debates away from legal discussions

Although I disagree, I can see where you're coming from but I also think the fact that some people will move away from legal discussions with passive voice is not unique - certainly the courts topic proves that given the opportunity most debates devolve to courts politics da + amendment cp, and I think that attempts to do legal topics in traditional form encourages this move away from the legal issues being debated. I will admit that my opinion is perhaps overdetermined by my experience with the courts topic, but in that experience engaging the topic through the passive voice facilitated more debates about legal logic and reasoning (which were my favorite debates ever) and engaging the topic in a more traditional form led to moving away from the legal questions of the topic (which were not my favorite debates ever).


 


Title: Re: Requests for the Topic Committee
Post by: jonahfeldman on May 31, 2013, 05:05:42 PM
Im with you on the problems that traditional resolutions have had in prioritizing legal debates, but then why not craft a resolution that gives people less outs (along the lines i suggested) instead of more outs?


Title: Re: Requests for the Topic Committee
Post by: gabemurillo on May 31, 2013, 05:37:20 PM
I'm not tied to any particular passive voice construction - I think it'd be ideal to have multiple passive voice options on the ballot - one more restrictive and one more broad. I think there are some disadvantages to being overly restrictive (for example "based only on arguments admissible in a court of law" would prevent teams from arguing that part of the legal change needed is changing the reasoning of the law) but I think those are very similar to rehashing any debate about broad versus limited resolutions. 


Title: Re: Requests for the Topic Committee
Post by: jgonzo on May 31, 2013, 06:44:04 PM
Dave Strauss asked me to post the following request on his behalf. I repeat, not me, although I don't disagree with much of what he's written, and would be down with giving it a try.

Premise –
A) The topic committee should include a ballot option that resembles the following blueprint:

     Resolved one or more of the following:
     1) Insert traditional USFG should resolution about CiC powers
     2) Insert non-“USFG should” resolution about CiC powers
     3) Insert non-traditional resolution on ANY ITEM of public policy controversy.  The critical far left/planless teams/coaches can basically figure out what they         
         want this to be

B)   If, BUT ONLY IF, the last 2 items in that resolution are *ACTUALLY* debates that demand teams advocate, take and defend positions on what controversial public policies should be, and are NOT traps that will be used to make the entire debate  a “framework” or “debate about debate”, than the entire spectrum of the policy debate community should support and vote for this resolution. 

To be clear, the last two items can really be almost whatever people want, I’m down for passive voice, non-usfg, hell I’ll take “should not” resolutions where the aff defends inaction and the resolution/”plan” are the basis for neg competition and counterplans, I really really do not care, we can debate about absolutely anything *AS LONG AS*, and really I can’t stress this enough, the aff is forced to take and defend SOME position on a question of PUBLIC POLICY CONTROVERSY.  The word controversy is important.  So is public policy.  As examples:  “The debate community should increase democracy assistance to the USFG”….no.  To borrow from past teams who have pursued this route “Prisons in the US should nearly all be banned”…..yes.  it doesn’t even have to be “USFG should ban”.  I’d also roll with something like “USFG state-based reforms aimed at encouraging inclusion are nearly all undesirable”.  Keep in mind….I’m just tossing out completely hypothetical examples here.  I realize these wordings are likely imperfect.

Some Q+A:

“Are you serious?”:

Sadly, yes. 

“Really, you’re not cute, we don’t need this trolling right now”:

Really, I am really really serious.  Promise.

“…..Why?”

1) Honestly I’m not 100% sold on this, but I do think it is worth the 1 year experiment. 
2) Because one thing that (I think) all sides can agree on is that framework debates and “debates about debate” clash of civ rounds are awful, uneducational, repetitive, and generally unappealing.  Who really sits around and says “I sure wish I got to have some extra framework debates!”?  This is a compromise intended to (hopefully) avoid that…at least somewhat.
3) Because while this proposal has many many legitimate flaws, almost all those flaws assume a false comparison to a world of everyone debating a traditional topic.  It is time to stop pretending that is what is happening.  The relevant comparison is a world where nearly half the teams debate no topic at all, or any topic they want.  Roughly half the teams in octos of ndt on don’t read a plan.  MSU HR goes to Kentucky, Harvard, wake and USC invitationals and over half the teams they debate when they are neg do not read a plan.  Bottom line, on a topic where lots of people complained that “half the teams read SMRs anyway”, we sure debated teams that didn’t read a plan a whole lot more than we debated SMRs.  Voting for a traditional topic doesn’t mean teams defend a traditional topic.  Given the high level of success it has had, this isn’t changing in a world the policy folk hold to a super rigid give no inches position.

“Yeah…but planless teams will just pocket this concession.  This won’t prevent planless/framework debates, will it?”

Remains to be seen.  Probably different teams will respond differently.  I’m totally on board that teams will generally do what maximizes their chances of winning, and if they can still get away with doing something that gives the neg less ground (like not reading a plan at all), than most probably will.  That said: 1) 1 year experiment…lets try it out and see  2)  While teams will still (I have no doubt) object to the resolution on the aff, I do think this resolution will make it harder to convince the average judge that it is ok to completely ignore the topic/not read a plan.  That’s the basic compromise – gets a bit harder to reject the topic/defend no plan and in exchange the K left gets to pick any topic of their choosing and add it into the res.

“I’m a plan-less K person – why should I support this?”

Well it sure seems like a pretty big concession.  If its not than I guess I don’t know what to say.  I’ll admit in advanced, yes this is not perfect, yes this does not resolve all potential concerns about the topic that anyone could possibly have, and yes the planless k people consists of multiple distinct entities with different interests, identities and arguments – that said one thing that unites at least many is the continued call for a change in practice within the debate community.  I believe this proposal, while again imperfect, does represent a significant step in that direction.  Feels like a win.  Actually a big win. Also…I’m basically saying, “you pick WHATEVER TOPIC YOU WANT for when you are aff, and we’ll debate you on it”, if you aren’t ready to take on that challenge….

“Wont this just jack policy squads in their policy rounds?  ie isn’t it a nightmare to be neg in outrounds vs NU/gtown etc if they have non USFG options?"

- Possibly.  A fair concern.  1) guess it just depends what your bigger concern is.  I agree this is a problem, I’m just willing to find out if its worth it.  Its not preferable in a vacuum, but we aren’t in a vacuum, some neg ground will still exist, not all policy teams will forgo USFG should, etc. 2) wouldn’t be the largest act of policy on policy violence I’ve seen lately….just sayin…..

“hey…this not a plan thing is a trend…debate always swings back….if we cave and put this in the res won’t we legitimize demands to put this in the rez for the indefinite future”

- Again a fair concern.  I’d say 1) maybe worth it… 2) if the topics awful this way, I guess we’ll find that out

“who gets to pick sub-topic 3?”

-   I don’t know?  “The resistance”?  “the resistance with minor tweaks by the topic committee same as all the other topics are”?  Again, I know there isn’t one singular interest here, and I know that all interests won’t be perfectly represented, but surely we can agree there is something that is at least a bit collective in nature about the “resistance”

“if the resistance picks – won’t they pick the topic best for them?”

-   Yes, but if its not a topic focused on a question of public policy controversy, you don’t have to vote for it

“what counts as ‘public policy controversy’?”

-   I gave some examples above, I know there is no perfect definition, and yes there will be some disagreement, but I guess I feel like *basically* we know it when we see it.  Again, emphasis on “public” policy, and “controversy”, not voting for debates about debate practice or “resolved: racism is bad”.  Also, I think phrasing like “nearly all” could be helpful here…..and before you say this is too onerous lets remember that affs have all the time successfully defended that defending ANY usfg action is bad (and no, I’m obviously not saying “nearly all” must be in sub-topic 3 to get my support)

“won’t sub-topic 3 be thrown together at the last minute with far less vetting?”

-   Yes, although all vetting at this stage is imperfect and there can still be review and discussion of the topic before anyone votes

“doesn’t that screw the topic committee a little bit?”

-   Probably.  Sorry Gordon, I’ve said it before, you have the hardest job in all debate.

“are there other problems with this proposal you haven’t addressed”

-   Probably.  Again, I want to appeal to the experimental nature of this and the possibility of learning something.

“Will smart people say smart things objecting to this?”

-   Yes.

“Will people say less smart things in response to this as well?”

-   Oh yes.

“Will you be publicly responding to any of that?”

-   No.  Absolutely not.  People say this all the time, but I’m really really not being drawn into an edebate war here.  It would just be too destructive to my quality of life.  This is my idea.  I think it has some appeal.  I think its imperfect.  I support it…I think.  If you don’t, then don’t.  If you do, that’s cool too.

“Is this the collective opinion of MSU debate?”

-   I speak only for myself.




Title: Re: Requests for the Topic Committee
Post by: RW Evans on May 31, 2013, 08:43:51 PM
Seriously though, how are you going to have a legal debate about presidential power in the passive voice.  As far as the law is concerned its purely a question of separation of powers:  not whether we should do it, but who should decide.  The who is the most important part of this debate.  Really scratching my head here.  If you make the debate about anything other than who you are making it a political question and not a legal question.


Title: Re: Requests for the Topic Committee
Post by: Adam Symonds on May 31, 2013, 09:26:04 PM
Seriously though, how are you going to have a legal debate about presidential power in the passive voice.  As far as the law is concerned its purely a question of separation of powers:  not whether we should do it, but who should decide.  The who is the most important part of this debate.  Really scratching my head here.  If you make the debate about anything other than who you are making it a political question and not a legal question.

+11


Title: Re: Requests for the Topic Committee
Post by: kevin kuswa on May 31, 2013, 09:51:32 PM
I'll wade through a bit before tomorrow, starting with the argument about passive voice and the "political question." If you read the history of presidential powers debates and look at the court cases and what congress and the president have done over time, the political question argument does not hold water.

To those of you who are either confused about, or convinced against, the passive option, you have to read Louis Fisher on this issue before you jump in, guns blazing, the night before the meeting.

Louis Fisher is probably the best source on the topic, especially from the side of those who would ground these questions in the constitution and work through the controversy with an eye on history and not partisan opinion.  I definitely suggest reading his Presidential Studies Quarterly article from 2009 where he takes on the Baker-Christopher War Powers Commission.  Not only is Fisher outstanding on the argument that the public is the most important variable here (even if you are just looking at the legal question), but also that ignoring the public as an agent of action will allow the creep of authoritarianism we are witnessing to continue.  Almost responding directly to some of the last minute claims being made here on the forums, Fisher cites John Jay in the Federalist No. 4 who made the argument that we have to take into account the voices of the people because those interests were precisely the ones that encouraged the drafting of the Constitution to be wary of a personally motivated executive taking actions that would classify as warfare.  Congress might be "the people" in some of those formulations, but not all instances, and not in the most important circumstances about the legitimacy of the government and what it means to enter into war.  Remember that the context of the document was a world in which "Executive leaders engaged in wars 'not sanctified by justice or the voice and interests of their people' (The Federalist, 2002, 101)."

As a result, the *only* Framer or Ratifier clinging to the legalistic interpretation (ironically being embraced today as a reason against a passive voice topic) at the Philadelphia Convention of 1787, "Pierce Butler of South Carolina, proposed that the power to commence wars should be vested in the President alone" (National War Powers Commission 2008, Appendix 4, 3--Fisher at 129).  Pierce Butler was alone for a reason--everyone else knew that it was crucial for the long term viability of the country to build in checks on the executive and fortify those checks with judicial review AND accountability to the general populace.

What does this mean?  It means we can have a passive voice topic without raising the false flag of the "political question" and it means that we have to give the public agency in the equation to avoid the larger consolidation of these decisions--the kind of consolidation that we see in the nuclear weapons establishment (see Taylor) and increasingly in detention policy and the War on Terror.

We may not know exactly what a broader agent would look like now, but those concerns will work themselves out in productive ways without forcing us back into the lion's den.  Seriously, read Fisher and then come back to this.

More evidence that should help folks to "wrap their heads around a passive topic that is also a legal controversy."  Indeed, a passive option will probably focus on the legal aspects of the question more so than other options because the choice of agent will actually matter instead of being fully predetermined:

"An appendix in the report (the 2008 National War Powers Commission) explores this issue in greater detail, claiming that 'few' war power cases 'are ever filed in the first place' (Appendix 5, 2). Not true.  Beginning in 1800, federal courts took war power cases on a regular basis and decide them.  In only two cases after the Civil War, involving Reconstruction policy, did the Supreme Court sidestep a dispute involving military operations....it is not possible to decide what is reasonable and practical without constitutional analysis" (Fisher, p135, my bold).

 




  


Title: Re: Requests for the Topic Committee
Post by: kevin kuswa on May 31, 2013, 10:04:43 PM
Also, keep in mind that we are discouraged from a wording that would have the Executive as the agent.

If that's the case, the concern that we are making it a political question and not a legal one is inevitable.  In many ways, the legal and the political are tied together--we need to realize that it is the narrow "one-instance" policy we are trying to avoid (no drones in Libya), not the larger political debate that would span more than a particular instance of force or detention.

Refrain from grasping a distinction between legal and political that does not really propel the discussion....we are trying to avoid small, single-instance legal interpretation as well (for example, the statutory question about detention decided in Rasul v. Bush).  That Court case had HUGE effects on policy which is why Congress acted quickly to overrule it with legislation about Military Commissions.  The court case, though, was not about Presidential war powers as much as it was about statutory interpretation.

The "legal vs. political" rabbit hole is not where we want to store our carrots.  A better distinction comes again from Louis Fisher.  When Fisher was called to testify to the Commission, he realized that they had FALSELY DIVIDED THE QUESTION INTO PRESIDENTIALISTS (Yoo) vs. CONGRESSIONALISTS.  This was a bad division and it is one that results from a strict legal vs. political split.  What Fisher said to the Commission was this:

"My first words to the Commission urged that it not think in categories of congressional vs. presidential. Although I had been a staff member of Congress throughout my career, I explained that I approached issues as an institutionalist or constitutionalist.  For that reason, I had often testified against congressional bills that undermined presidential power or weakened judicial independence.  My obligation was to the political system as a whole, including the essential safeguards of the separation of powers and the system of checks and balances.  The commission's report reflects no appreciation of or interest in this essential framework.  If disagreement among contending schools of thought means ambiguity, the Constitution becomes not a founding document of basic principles but an exercise in jump-ball.  If one branch gets there first, there you have it." (Fisher, p130)




Title: Re: Requests for the Topic Committee
Post by: kevin kuswa on May 31, 2013, 10:38:55 PM
tying up a few more loose ends (or perhaps making the knot more of a pain to untie):

1. there are reasons for a passive voice topic--the wording paper outlines a few and the original controversy paper suggests a few passive options.

2. all the options will not be passive.

3. at least one or two passive options will help to create some choice on the ballot.  it's just one or two choices on the ballot.  hopefully we'll have a Congress only choice, a Courts choice, a USFG choice, and perhaps some variety among those options.  some great papers have been put out that advocate resolutions in these areas--there isn't really a researched argument against the passive voice at this point.

4. some good reasoning and research has been devoted to the possibility of opening up the agent.  let's not throw that away based on a few short claims.

Yes, we are debating about Presidential war powers, but that phrase is not enough to determine what the agent should be for every single topic wording.  To argue such exclusivity regarding the agent would be to replicate what Justice Sutherland did in the dicta of the Curtiss-Wright case.  Justice Sutherland, without reading into the rest of John Marshall's speech in Congress about the President being the "sole organ" in matters concerning "external relations," used that line to promote broad Presidential powers.  The problem is, only citing that one line, ignores all the other agents weighing in on this issue, including two Court cases Marshall decided himself--Talbot (1801) and Little (1804).

One line from Marshall in the Talbot decision was this: "The whole powers of war being, by the constitution of the United States, vested in Congress, the acts of that body can alone be resorted to as our guides in this enquiry."  Of course, according to Fisher (132), the Commission "did not bother to read Marshall's speech to see whether he said anything about presidents having the authority to initiate war.  There is not even a hint of such a position in the 'sole organ' speech." 

And, the line that I think turns the argument that the legal question forces us away from the passive voice is this: "The President, Marshall said, is the 'sole organ' in carrying out congressional policy as expressed in statutes and treaties.  He is the sole organ in carrying out the law, not in making it."

What we want to debate is along the lines of what former Texas debater, Ryan Goodman, wrote in his 2009 article on armed conflict in AJIL:

"The Obama administration will no doubt want to learn from these debates...In ascertaining the best legal and policy responses to challenges that have arisen following September 11, proponents and opponents of US detention practices ... have led the nation down troubling paths....The Supreme Court, the Obama administration, Congress, and legal advocates now have a new opportunity to decide whether and how to align U.S. legal discourse and policy with the longstanding international legal framework" (Goodman, p74)

Let's collectively wrap our heads around that!






Title: Re: Requests for the Topic Committee
Post by: Adam Symonds on June 01, 2013, 02:02:46 AM
I hope the committee will consider a floor and ceiling approach as at least one of the options for the topic, as I argued for in this post: http://www.cedadebate.org/forum/index.php?topic=4798.0 (http://www.cedadebate.org/forum/index.php?topic=4798.0).

There are different ways that this notion could be employed on this topic. If restrict is the key topic verb, then the aff could be required to restrict war powers, at least including establishing new congressional oversight. Perhaps instead, the aff should substantially curtail, including at least new statutory restrictions on presidential war powers.

Following the thematic approaches to the topic, the resolution could require the aff to roll back a power vested by the AUMF but allow greater war power restrictions beyond those aimed at the war on terror.

Stephen's call to maintain clarity between war power and cinc power could be the backdrop for a topic that requires at least restricting war powers while allowing the aff to also restrict cinc powers.

I'm sure there are many other ways in which the committee might employ this concept. But the core of the idea is that the topic can force very specific negative ground and yet still allow the aff flexibility to go where the topic literature takes them months down the road. Aff flexibility and negative link ground need not be at loggerheads in the process of writing the topic.


Title: Re: Requests for the Topic Committee
Post by: kevin kuswa on June 01, 2013, 07:19:56 AM
agree, Adam.  there are a couple of stabs at this in the agents wording paper--look under "topicality"--adding a requirement.  I realized that the .pdf may be cumbersome--will upload the word document here.  hopefully that helps navigating the index as well.


Title: Re: Requests for the Topic Committee
Post by: gabemurillo on June 01, 2013, 10:06:42 PM
I don't think a passive voice option excludes a debate about SOP, an affirmative could clearly argue that executive authority over an area should be restricted because congressional or court oversight is good. I believe a passive voice option would enhance legal debates by also allowing debates about whether any agent should have the legal authority to indefinitely detain, wiretap, deploy drones etc at all without those debates devolving to political questions (process cps etc). The argument that these debates are not legal because the status quo already presumes these powers are legitimate assumes the role of the affirmative is to defend the legal logic of the status quo, i believe this is the role of the negative and the aff should be allowed to change the legal logic and reasoning of the status quo. In other words I think the passive voice encourages a broader range of strategic legal debates which allow the affirmative to make large changes in the logic and reasoning of the status quo.