Two debaters in suits walk into a large auditorium. Their hands are sweating as they lay down the files of evidence they have studied for months, in preparation for this very moment. The first speaker begins his introduction facing a nine-judge panel, in what may be the most important debate of his life.
But these are not high-schoolers in the final round of nationals. They are professional lawyers readying themselves to argue the Constitutionality of a question before the Supreme Court of the United States. The Supreme Court hears around a hundred debates a year (and participates in all of them), often regarding the Constitutionality of a law. But the hundred they hear are a select group. Thousands of cases petition to be heard by the Supreme Court. Any lawmaker, state or federal, faces real questions about whether his law is Constitutional- and whether the High Court will erase all his work by striking it down.
This question of Constitutionality is one of the first questions a Congressman asks. In the case of some bills, like the Affordable Care Act, the Congressmen passed it knowing that the Constitutionality would be challenged. During the controversy regarding its passage, the question of Constitutionality was brought up again and again. Ultimately, the High Court, after several argument sessions, ruled the law Constitutional.
Since lawmakers and judges spend so much time concerning whether a law is Constitutional or not, why don’t debaters? It should be a fundamental concern of the policy debater whether or not a plan is Constitutional. Similarly, the Constitution establishes many values and principles for our government that are useful to value debaters. But this critical question is often ignored. Let me demonstrate first why it should not be ignored.
The Importance of the Constitution
The Constitution is the Supreme Law of the land- governing the government itself. The legality of our government’s action is not determined by international law*, or court judges, but by the Constitution. Any policy should be examined in light of this ultimate standard before being adopted.
The Constitution also establishes limits upon government. This is very important for the policy debater. The Constitution delineates what the government can do, and also establishes what the government cannot do. Any policy must pass these basic tests: Does this overstep the government’s authority? And Does this violate a right of the people? In order to be legal. These questions must be answered in the negative for a policy to pass the ultimate topicality test- does the United States Congress or Executive Branch have fiat to pass this plan?
Similarly, the Constitution, along with the Declaration of Independence, establish many of the foundational principles of a government. These would include: protection of natural rights, separation of powers, stare decisis, and the rule of law, and federalism, among others. These principles are the bedrock of our government and can play a large role in value debate. The way our government was structured bears out the real-world impact of these principles, so the Constitution is fruitful ground for value debate as well as necessary ground for policy debate.
Why it is often ignored
So with such importance, why isn’t the Constitution utilized more in debate? The first reason is that there is a lot of ignorance regarding the Constitution. This is true across American society as a whole, but should not be for those making important decisions about the nature of our government in the future. Sadly, many just do not know about the Constitution enough to even make a qualified judgment on whether a plan is Constitutional or not. Fortunately, some basic education can solve this problem.
The other reason is a little bit harder to address. This is particularly true in policy debate. The simple fact of the matter is that the Constitution does not fit neatly into any one category. Most judges like to organize the round into stock issues and net benefits. Unfortunately, the Constitutionality does not fit very neatly into any category. An argument can be made for topicality, but would require so many internal links it would be a waste of time. The argument can be made under solvency by saying that this plan could not go into effect due to the SCOTUS overruling it, but that is a bit of a stretch, and not particularly convincing. The best option still isn’t very good. Running some kind of a disadvantage linking violating the Constitution to negative external results would be my choice, but is difficult because there aren’t too many direct links to negative results just from choosing to violate the Constitution. After all, the government has been doing it for years**, and we haven’t collapsed yet. On top of that, compared to more concrete advantages like “Lower gas prices” and “Fewer pandas dying,” the abstractness will more likely push judges to dismissing it as a lightweight concern. In other words, impact calculus will weigh heavily against it. The Constitutionality of an issue ought to be weighed a lot like topicality- the preeminent concern. Simply putting it with other arguments only delegitimizes its importance. Unfortunately, this means that judges sorting the round into organizational boxes, won’t find an easy place to put questions of Constitutionality.
How Constitutionality is often argued (poorly)
Before I explain this, let me say that I have in the past, been just as guilty as anyone else at arguing about the Constitution poorly (whether in policy or value debates). These observations are based on what I have done in the past as well as what I have seen others do. The reason I argued it poorly is the same reason many others make the same mistake- ignorance. Many times I have seen people argue that a plan is unconstitutional by simply citing the 10th Amendment and saying that unless you can prove it is Constitutional it is not. This is a fine argument, but must be preceded by evidence that the Constitution does not actually grant such power to the federal government. As I will show later on, commonly-held theory suggests that the federal government has quite a bit of power. The Supreme Court has historically interpreted the power of the federal government under such texts as the Commerce Clause to go far beyond what the average Joe would think it means.
But what average Joe thinks doesn’t fly with the Supreme Court, or with legislators constructing bills. The legal doctrine of stare decisis means that once a decision is made, it is used to determine other points of litigation. This means that once a Court makes a decision, that decision will help decide other cases on other laws. If the Constitutionality of a law is challenged, then it must rely on other cases to decide whether it is Constitutional or not. This highlights the importance of relying upon outside references when making Constitutional arguments.
Beyond this, the general arguments based on the Constitution in value debate go something like this: “The Founding Fathers valued private property rights when they made the Constitution. So should we.” This is a poor argument because it is based on “common knowledge” without the specific references demonstrating the protection of private property rights. In other words, this is based on an argument about principle without specifics. But when one explores the nature of private property rights within the Constitution, one finds many places in which the Founders allowed the government to override these rights.
How to Explore Constitutional Issues
Now that I have explored the importance of Constitutionality, why it is often ignored, and what is wrong with how many argue it, I will now look at how to explore Constitutional issues, so that you can make well-informed, proper arguments.
The first guideline should be obvious- read the Constitution. When making Constitutional points, you should be able to refer to the Constitution. Now, of course, the Constitution is a bit long to sit and read. Fortunately, depending on the topic, there are some sections of the Constitution that are more important than others. For policy debate, rely on Article I Section 8, as well as Article II, Sections 2 and 3. For value debate, the whole Bill of Rights and the 14th Amendment are probably going to be more important.
The second guideline is a little more difficult- explore original sources. In particular, the Federalist Papers are a good choice. The Federalist Papers are a defense of the Constitution written by some of the people who wrote it, such as Alexander Hamilton, John Jay, and James Madison. This is an excellent choice for determining the original intent of the Constitution.
Similarly, the ratification debates in the state conventions are a good choice. They offer perspectives on the Constitution from those who opposed and those who supported, giving a good window into what the Constitution meant to those who ratified it.
The third guideline is to explore veto letters- letters a President writes when explaining why he vetoed a bill. These can be very helpful when they address the Constitutionality of an act of Congress. James Madison, in particular, is a good resource, since he was willing to veto things he thought were unconstitutional (being something of an authority on the subject) despite thinking that they were good policies.
The last resource is, in modern jurisprudence, the most important. The decisions of the Supreme Court are carefully explained, both by the majority and the minority, in opinions, which form the precedent which governs courts in future decisions. Having already explained the importance of precedent, it should be plain to everyone that these decisions are very important in determining whether a law will be struck down by the Supreme Court. For example, based on the ruling in National Federation of Independent Businesses v. Sibelius (the ObamaCare case), future courts are likely to uphold similar laws which impose penalties for not buying an item. Similarly, based on the same ruling, courts are not likely to uphold expansions to federal programs which establish as a penalty for not taking the money the loss of all funding for that program. For modern law, the decisions of the Supreme Court are the most important documents in understanding what the Constitution means. In order to argue properly, you should understand these decisions. (These two articles provide a good example for how to explore Supreme Court cases.)
The Constitution is a very important tool for debaters, but it is often underutilized, thanks to many being unsure about how to argue it. Fortunately, by learning about the Constitution yourself by exploring the text as well as outside sources, you can to leverage it to your advantage while giving it the respect it deserves.
In the next part of this article, I will explain more in depth how to apply these principles to value and policy debate, as well as give specific examples of their application in the Stoa LD and TP resolutions.
*Technically, international treaties derive their authority from the Constitution saying they have authority.
**In my opinion.
I am an NSDA debater set to debate what I think is an aff-biased resolution “Resolved: Public colleges and universities in the United States ought not restrict any constitutionally protected speech.” With what you have stated in mind, would you be able to address this topic as well in your analysis?
Well done, Noah.
I already wrote and published the second part of the piece, so I can’t help you with that, but I do have a few thoughts on this resolution if you want to hear them. (This is just a cursory overview, and I’m not in NSDA, so I’m not exactly sure what all you all are arguing for it, so just bear that in mind.) I think the biggest difficulty for Neg will be that public institutions aren’t allowed to restrict Constitutionally protected speech. The way it works is that if one does, then courts rule on it, and if it gets to SCOTUS, they either 1. invalidate the restriction, which means that the university oughtn’t to have tried it in the first place, or 2. uphold the restriction, meaning that the speech is not Constitutionally protected. Double bind.
The first thing that needs to happen is that Constitutionally protected speech needs to be defined. Since it is primarily decided by SCOTUS, here’s an article that discusses content of speech allowed and disallowed by the courts: http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does. On top of that there are time and place restrictions, which allow the government, with a good cause, to restrict the time and place of speech, as long as other means of communicating are provided.
So Constitutionally protected free speech includes pretty much all the things Negative might argue against it. These free speech restrictions look eminently reasonable, and the way it is structured forces Negatives into a double bind of seeing the restriction invalidated or made part of Constitutionally protected speech. The one way I can see out of this is to redefine what is Constitutionally protected speech. Perhaps taking a “strict constructionist” standpoint like that of Hugo Black could present a chance to argue in favor of the restrictions Affirmative claims fall under their argument. However, you would have to argue that “Constitutionally protected” is different from protected by the Supreme Court, so maybe other avenues like interpreting “ought” to exclude practical concerns like the double bind I presented could also provide avenues to victory. Or you could attack the notion of substantive due process, like the late Justice Scalia, to claim that public universities ought not to be bound by Constitutionally protected speech (but this is very risky).
This resolution certainly looks like a good place to explore what speech the Constitution protects and whether that is indeed appropriate. Research and read the opinions of the court, as well as the other things I pointed out above, and you should learn a lot from this resolution. I hope that helps.