In the last post in this two-part series, I looked at the importance of the Constitution, why it is often ignored, the wrong way to argue Constitutionality, and how to properly explore Constitutional issues.  Now I will look more at the specific application of these ideas, first by looking at how they apply to value and policy debate, and then by looking at a couple of cases studies.  

The Constitution in Value debate

Of course, the Constitution won’t serve as any kind of knock-out blow in value debate- you’re debating what ought to be, not what is.  But it definitely still has its uses.  

The first big thing it is good for is pointing out founding principles.  The Constitution is built on many ideas that Americans (especially conservatives) implicitly agree with, such as federalism, separation of powers, and the rule of law.  Simply pointing out that the ideas you uphold were the basis of the Constitution can win rounds and influence judges.  

But going beyond these principles, there are many specific examples of implementation in the Constitution that demonstrate exceptions to the rule, or consistency with it.  For example, the Constitution makes allowances for many violations of private property rights.  But the Constitution also limits the ways in which government can do this.  The Constitution allows searches and seizures of private property, but requires probable cause and a warrant.  These kind of points  can be very helpful in establishing the ways in which we can value Public Need over Private Property Rights.

Case Study: Limitations of Property Rights

The Constitution itself codifies a number of limitations of private property rights.  This can be a helpful list to address an opponent who simply insists that the Constitution highly values private property rights over public needs.  

1. Taxation.  Article I Section 8 Clause 1 gives the government the power to tax and spend money for “the general welfare and common defense.”  Such a power requires violation of an owner’s exclusive right to own and use his property, but is permitted in our Constitutional order.  
2. Searches and Seizures.  The Fourth Amendment gives government the power to search and seize private property without consent, as long as they have a warrant.  This applies to people who are innocent as well as guilty of crimes.  This limitation on rights permits the government to investigate crimes and create a working criminal justice system.
3. The Due Process Clause.  Something along this line is found in both the Fifth and the Fourteenth Amendment.  The Due Process Clause of the Fifth says that “No person… shall be deprived of life, liberty or property without due process of law.”  Intended to act as a defense against government capriciousness, the clause nevertheless allows the government to take property, as long a the due process of law is followed.
4. The Takings Clause.  Perhaps the most famous for Stoa LD this year is the takings clause, which allows the government to take property for the public use, as long as just compensation is offered.  This allows eminent domain and was the basis for the Kelo v. New London decision.  This clearly violates property rights, but is allowed by the Founders because they saw it as important.

As you can see, the Constitution very clearly allows for the violating of private property rights in several ways.  In these situations, the Founders put public need (or even public good) above the right to property.  

The Constitution in Policy Debate

Of course, the Constitution may be far more applicable in policy debate than value debate since policy debate operates within the rules governing the United States Federal Government (both leagues have stuck with that actor for the most of their history).  As I explained in the last post, the rules governing the government determine whether a plan is legal or not.  But as I already explained, this argument is difficult to apply. So how does one make an argument about the Constitution within a policy debate?

I think the best approach is a disadvantage.  Although not perfect, this is still the best approach in my opinion.  But how to demonstrate the importance of the Constitution?

Start by looking at founding principles.  Explore ideas like federalism and checks and balances.  Most judges will agree with these ideas if you tell them about them.  Spend your time explaining and extolling these ideas (for whatever section of the Constitution you are talking about).  Explain why these ideas are so important before you even discuss the plan.  

Then move on and discuss the idea of the rule of law.  Again, most judges will come into the room believing that law is important and ought to be followed.  But demonstrate the importance of this again.  Talk about how little our laws will matter if they can be violated anytime Congress thinks it’s a good idea.  Talk about how little confidence we can have in our Republic if the Supreme Law of the land, or any law for that matter, does not matter.  

Now turn to the plan in question.  Demonstrate that it is unconstitutional, given the resources that I pointed out in the first post.  Look both at the text and at the outside sources like the Federalist Papers and the ratification debates.  Look at SCOTUS decisions.  Look to these things and then walk the judge through them.  Show them, beyond a shadow of a doubt that this plan undermines the entire Constitutional order.  

Next, impact extremely hard.  Impact both to the rule of law and to the undermining of the Founding principles.  Impact to the judge’s confidence in government and to the lack of limits on the government itself.  Demonstrate that this is the most important disadvantage in the round.  Show the judge that this is a voting issue.  Make it so that no reasonable Affirmative team can ignore it (this article gives some good guidance on how to do this).

And what of responding to these arguments?  If someone argues Constitutionality on your Affirmative case, it is not hopeless.  There are things you can do to address it.  Unless your plan is totally unconstitutional (as in seizure of property without compensation or Congress creating new states out of North Dakota without permission), then there is probably some wiggle room.  The Supreme Court has been particularly bad to create incredible loopholes in the Constitution.  A simple look at the SCOTUS precedent on the issue can show that what is considered Constitutional by the Court is very different from what any reasonable observer looking at the text might conclude.  So simply establish the Court as the authority and look for the cases that show your plan actually are Constitutional.

Case Study: The Commerce Clause

Under Stoa’s policy resolution, most cases choosing to regulate agriculture will inevitably run up against the Commerce Clause.  It says: “Congress shall have the power… to regulate commerce with foreign nations, among the several states, and with the Indian tribes.”  This is the only clause in the Constitution giving any part of the government any power to regulate the economy, so it has been the justification for most regulatory measures in the past as well as in the present.  In order to understand what this means, let’s look at three different sources on the meaning of the Commerce Clause.

The Federalist Papers are one of the greatest resources for the understanding of the original meaning of the Constitution.  In Federalist 17, Hamilton draws a distinction (very important for this year) between commerce and agriculture.  He says: “the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation.”  Hamilton sees agriculture as the proper domain of the local legislatures and states- he does not perceive this arena as within the power of Congress.  

But the Supreme Court has been very willing to expand federal power in this arena over the past two centuries.  The broadest interpretation of the Commerce Clause that has come from the Court in the past has been that espoused in the 1942 Wickard v. Filburn decision.  A farmer named Roscoe Filburn was subject to a regulation on how many acres of land he could use to grow wheat.  He defied this regulation, but used the extra wheat grown for personal use.  Filburn challenged the law as overstepping Commerce Clause authority, since his wheat would not be used for any form of interstate commerce.  The Court ruled against him, saying that “[an activity] may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as “direct” or “indirect”.”  The argument made was that if an activity substantially affects interstate commerce, then it was within Congress’ pale of authority.  This decision could justify nearly any plan under this resolution which expands regulation.  

However, the Wickard decision was greatly undermined by a more recent decision (though not technically, since it was still used in National Federation of Independent Businesses v. Sibelius).  The case United States v. Lopez was a 1995 decision which greatly limited the purview of the Commerce Clause power as stated under Wickard.  Under this decision, which ruled that the regulation of guns inside public schools was unconstitutional, there were three types of activities that fell under the interstate commerce clause: the channels of interstate commerce, the instrumentalities of interstate commerce, and activities that substantially affect interstate commerce.  The revolutionary part of this decision, though, was the distinction between economic and non-economic activity.  Under this ruling, explicitly non-economic activity such as carrying a gun into a school did not fall under something that substantially affected commerce.  

So what does this mean for the Constitutionality of plans that fall under the commerce clause?  Well, if one adopts an originalist standpoint (or the position that what the Founders meant when they wrote the words is what the Constitution means), then reasoning from the Federalist papers it can be concluded that little federal regulation of agriculture is legitimate, since Hamilton excludes agriculture from federal jurisdiction.  But arguing under a Wickard framework, one could argue that any activity which substantially affects commerce falls under Congressional power, making nearly every plan Constitutional.  A Lopez framework insists that the activity must be economic in nature (or in the pursuit of commerce) before it can be regulated.  That would still allow plenty of plans through, but limits more than the Wickard decision.  Any of these are fair game- they are the subject of discussions among legal scholars and have been the basis of decisions by the Supreme Court before.  

Conclusion

The Constitution is indeed a ‘living document’- it’s one that affects our daily lives, both as citizens of a constitutional republic and as debaters attempting to make decisions from the perspective of a government.  It is something that has been ignored in the past- but something that deserves attention and respect.  If you intend to argue about it, though, give it the full attention it deserves- research the issues and come to an informed conclusion about them.  In that way, you can open up a rich new field for discussion while giving our founding document all the respect it deserves.  

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