Monday, March 6, 2017

PF Apr 2017 - Dump the Electoral College - Introduction and Cards

Resolved: The United States ought to replace the Electoral College with a direct national popular vote.

Introduction

To coin a phase from a famous American, this topic is "like déjà vu all over again". Go back to November, 2011 when we debated the topic 'Resolved: Direct popular vote should replace electoral vote in presidential elections.' and at the time I did a summary analysis of the topic. Everyday debate was in its infancy and that was the second topic analysis ever published on this site.

This past weekend, we completed our varsity State Finals Tournament which, other than a novice State Finals coming up this weekend, marks the end of our debate season and so it marks the end of my detailed topic reviews until the start of next season. For what it's worth, I will likely do some kind of summary of the Nationals Topics when they are published, mainly because I intend to be at the NSDA nationals tournament with our team qualifiers and I usually write something about the topics although not an in-depth review.

In short, I am taking a little time off, but don't worry. Since this topic has come back from the dead, I am simply going to dump a bunch of cards I have in my archives. There will be no analysis and the sources may no longer be found and if that is the case, I am sorry.

See you in Birmingham and then again, next season.



PRO Direct Popular Vote good – Electoral College bad

2AC Arguments

Empirics -

One Person, One Vote is the truly democratic way to run an election
This country is founded on a principal that persons would receive an equal voice in the affairs of the nation and especially in the process of electing its leaders.  Throughout the 50 states, elections for governments at the local, county and state levels are successfully conducted on the basis of direct popular pluralities. It is ludicrous to claim this principle can NOT be applied to the Presidential election.

A system which distorts the one-man one vote principle is unfair and undemocratic
Any system of voting which multiplies the voice of a minority is subject to manipulation and is patently unfair. Why should one person’s vote, because of the electoral ‘winner-take-all’ system be multiplied unfairly? This is how candidates who do not receive the majority of the votes get elected and that is unfair and undemocratic.

The PRO is advocating fairness, not a plan.
It is not our burden today, to decide how to establish a system of direct popular vote. In 1967 a satisfactory proposal was made by the Senate Judiciary committee which passed the Senate, so we know it can be done. Our case, claims the current system is unfair and violates democratic principles and this is too important to ignore.

Constitutional change does not come easily. Congress should obey the will of the people.
The current electoral system was the last compromise decided by the Constitutional Convention of 1787 and threatened to wreck the entire process.  Most representatives did not want it but compromised.  The realities of today’s political process demands a better, simpler and fairer system. Just because it is not easy to effect a change to the constitution does not mean it shouldn’t be done.  The opinions of the majority of Americans are demanding a change. But as we have seen recently, the Congress does not always abide by the will of the people.


Cards -

The concept of ONE MAN, ONE VOTE is legally upheld by the U.S. Supreme Court

Wesberry vs Sanders, 376, US 1 (1964) text from www.justia.com, US Supreme Court Center, Volume 376.
In the 1864 ruling of Wesberry vs Sanders, the Court ruled in count three, “The constitutional requirement in Art. I, § [Section] 2,that Representatives be chosen "by the People of the several States" means that, as nearly as is practicable, one person's vote in a congressional election is to be worth as much as another's."

Justice Black, Westberry vs Sanders (1964)
It is in the light of such history that we must construe Art. I, § 2, of the Constitution, which, carrying out the ideas of Madison and those of like views, provides that Representatives shall be chosen "by the People of the several States," and shall be "apportioned among the several States . . . according to their respective Numbers." It is not surprising that our Court has held that this Article gives persons qualified to vote a constitutional right to vote and to have their votes counted. United States v. Mosley, 238 U. S. 383; Ex Parte Yarbrough, 110 U. S. 651. Not only can this right to vote not be denied outright, it cannot, consistently with Article I, be destroyed by alteration of ballots, see United States v. Classic, 313 U. S. 299, or diluted by stuffing of the ballot box, see United States v. Saylor, 322 U. S. 385. No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges (Page 376 U. S. 18) this right. In urging the people to adopt the Constitution, Madison said in No. 57 of The Federalist: "Who are to be the electors of the Federal Representatives? Not the rich more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names more than the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the people of the United States. [Footnote 47]"

Baker vs Carr, 369 US 186 (1962) text from laws.findlaw.com, US 369, 186
Opinion of Justice Douglas:
While I join the opinion of the Court and, like the Court, do not reach the merits, a word of explanation is necessary. 1 I put to one side the problems of "political" [369 U.S. 186, 242]   questions involving the distribution of power between this Court, the Congress, and the Chief Executive. We have here a phase of the recurring problem of the relation of the federal courts to state agencies. More particularly, the question is the extent to which a State may weight one person's vote more heavily than it does another's.

There is a third barrier to a State's freedom in prescribing qualifications of voters and that is the Equal Protection Clause of the Fourteenth Amendment, the provision invoked here. And so the question is, may a State weight the vote of one county or one district more heavily than it weights the vote in another?

The traditional test under the Equal Protection Clause has been whether a State has made "an invidious discrimination," as it does when it selects "a particular race or nationality for oppressive treatment." See Skinner v. Oklahoma, 316 U.S. 535, 541 . Universal equality is not [369 U.S. 186, 245]   the test; there is room for weighting. As we stated in Williamson v. Lee Optical Co., 348 U.S. 483, 489 , "The prohibition of the Equal Protection Clause goes no further than the invidious discrimination."

I agree with my Brother CLARK that if the allegations in the complaint can be sustained a case for relief is established. We are told that a single vote in Moore County, Tennessee, is worth 19 votes in Hamilton County, that one vote in Stewart or in Chester County is worth nearly eight times a single vote in Shelby or Knox County. The opportunity to prove that an "invidious discrimination" exists should therefore be given the appellants.

Direct popular vote is fair and provides equality

Honorable Birch Bayh, U.S. Senator, Indiana, forward to Every Vote Equal, 1 March 2006
Today more than ever, the Electoral College system is a disservice to the voters. With the number of battleground states steadily shrinking, we see candidates and their campaigns focused on fewer and fewer states. While running for the nation’s highest office, candidates in 2004 completely ignored three-quarters of the states, including California, Texas, and New York, our three most populous states. Why should our national leaders be elected by only reaching out to 1/4 of our states? It seems inherently illogical, and it is. Opponents of the direct election often point to the wisdom of the Founding Fathers in drafting the Constitution. No question, the Founders had incredible wisdom and foresight, but they were dealing with a much different society and the Electoral College was designed for the realities of the 18th Century. The landmass of the country was huge; travel and communication were arduous and primitive; and education was limited at best. Lack of information about possible Presidential candidates among the general public was a very real consideration. Also, there were issues involving slavery. At the time, 90% of the slave population lived in the South. Since the slaves could not vote, without the weighted vote of the Electoral College, the South faced electoral domination from  Northern states. While not the first choice of any Founder, the Electoral College system solved these tricky considerations with a compromise which allowed them to complete the monumental task of creating our country’s Constitution

Honorable Birch Bayh, U.S. Senator, Indiana, forward to Every Vote Equal, 1 March 2006
In the final analysis, the most compelling reason for directly electing our president and vice president is one of principle. In the United States every vote must count equally. One person, one vote is more than a clever phrase, it’s the cornerstone of justice and equality. We can and must see that our electoral system awards victory to the candidates chosen by the most voters. In this day and age of computers, television, rapidly available news, and a nationwide public school system, we don’t need nameless electors to cast our votes for president. The voters should cast them directly, themselves. Direct election is the only system that counts every vote equally and where the voters cast their ballots directly for the candidates of their choice. It has the additional virtue of operating in the way most Americans think the electoral process operates— and is expected to operate.

American Bar Association, from the report to the Subcommittee on Constitutional Amendments August 23, 1967 proposal to change the method of electing the President
While there may be no perfect method of electing a President, we believe that direct, nationwide popular vote is the best of all possible methods. It offers the most direct and democratic way of electing a President and would more accurately reflect the will of the people than any other system. The vote of every individual in the constituency (including the District of Columbia) would be of equal weight, as it now is in elections for the United States Senate and House of Representatives and for statewide, municipal, county, town and village offices throughout the United States.

Schlossberg, Steven I., General Counsel, United Autoworkers, testimony before the Subcommittee on Constitutional Amendments August 23, 1967proposal to change the method of electing the President
As we see the question of method of election it involves the basic principle of equality - of the right of every citizen of age to vote and have his vote count exactly the same as that of every other voter.  This is, I take it, the theoretical basis of recent one-man, one-vote decisions that the courts have handed down. To us, the logic and morality of those decisions is inescapable. And if the principle is right and important in the election of the State legislators, surely it is just as right, and just as important in the election of the two executives of our country - officials who represent the constituency of all Americans - all equal participants, by constitutional mandate, in the political process. that this constituency wants its collective voice heard more directly, by abolishment of the electoral college and substitution of direct election has been made manifestly clear by recent polls.

A direct vote will not endanger the two-party system

Schlossberg, Steven I., General Counsel, United Autoworkers, testimony before the Subcommittee on Constitutional Amendments August 23, 1967proposal to change the method of electing the President
It has been said that direct election will endanger the two-party system by encouraging splinter parties to run candidates for national office. The proposed amendment has been drawn carefully to discourage such a development. The nominee of any election must have a minimum of 40 percent of the vote cast – hardly a likelihood for any minor party candidate.  In some ways direct election will strengthen the two-party system. The possibility of maverick electors splintering from and weakening one of the major parties will be eliminated. Never again would we see the ludicrous situation of 1948 and 1964, when the candidate who was actually elected did not appear on the ballot in several States.

A direct vote eliminates disproportionality

Schlossberg, Steven I., General Counsel, United Autoworkers, testimony before the Subcommittee on Constitutional Amendments August 23, 1967proposal to change the method of electing the President
Second, it is said that the electoral college machinery provides a counter-balance to the disproportional congressional districting which has traditionally favored the rural portions of our country. To this we say the cure must be by extension of the principle of equality, of one-man one-vote, to all areas, not by offsetting one undemocratic, inequitable institution with another.

A direct vote encourages voter participation

Schlossberg, Steven I., General Counsel, United Autoworkers, testimony before the Subcommittee on Constitutional Amendments August 23, 1967proposal to change the method of electing the President
In conclusion, I would like to note several of the salutary by-products that would accompany a change to the direct election method. I think that direct election will provide a great impetus to registration and voting. Those persons in our country who have been virtually disenfranchised in national elections by virtue of being adherents of a minority party position in a State will be encouraged to vote because they will not see their action as futile as they must have in the past. Greater participation in presidential elections is, we urge, a positive value for democracy.

Schlossberg, Steven I., General Counsel, United Autoworkers, testimony before the Subcommittee on Constitutional Amendments August 23, 1967proposal to change the method of electing the President
There will be strengthening of confidence in the democratic nature of our institutions. No longer will we have to live with the nagging fear each election day that perhaps this time the loser will have more popular votes than the winner, or that no one will have enough electoral votes.

Direct vote is simple – something everyone should understand but the Electoral College is complicated.

Schlossberg, Steven I., General Counsel, United Autoworkers, testimony before the Subcommittee on Constitutional Amendments August 23, 1967proposal to change the method of electing the President
Finally, I suggest that the simplicity of direct election is a virtue in and of itself. The basic principles of democracy have always been simple. But the electoral college system is not simple. I would be loath to guess how many persons in this country fully understand its workings.  Surely everyone should understand how the President and Vice President of the United States are elected. Everyone should understand that the candidate receiving the most votes – every citizen casting an equal vote – will be elected the President of the people.

Honorable Birch Bayh, U.S. Senator, Indiana, forward to Every Vote Equal, 1 March 2006
At the end of this process, I was even more firmly convinced that the Electoral College had outlived whatever positive role it once played as a choice of convenience and compromise. Long overdue, the President and Vice President should be chosen by the same method every other elective office in this country is filled—by citizen voters of the United States in a system which counts each vote equally. In 1979 we came close to getting S.J.Res.1 through the Senate but in the end we could not get enough votes to end the filibuster blocking the Resolution. Our effort, like many before it, was relegated to the Congressional history books.

Honorable Robert J. Dole, U.S. Senator, Kansas, Republican, Democrat address before the Subcommittee on Constitutional Amendments August 23,1967 proposal to change the method of electing the President
I believe S.J. Res. 1 [Senate Judiciary Resolution 1] provides an acceptable electoral reform on the basis of three considerations:
1. Its simplicity and certainty of operation,
2. Its conformity with the patterns and practises of modern political life, and
3. Its compatibility with the strength and growth of the two party system.
Direct election is the most straightforward electoral reform measure I have seen so far, and I feel this simplicity and the understanding which flows from it are absolutely vital to the establishment of public confidence in our electoral process.

Honorable Birch Bayh, U.S. Senator, Indiana, forward to Every Vote Equal, 1 March 2006
The election of President of the United States should not be a contest between red states and blue states. The President should be chosen by a majority of our citizens, wherever they may live. Direct popular election would substitute clarity for confusion, decisiveness for danger, and popular choice for political chance.


1AR Arguments

Empirics –

The electoral college was a compromise solution
While trying to establish a method for electing the executive leaders of the United States, the electoral college system emerged as a compromise. It was not proposed in the beginning as an acceptable method for electing the President.

The electoral college system is flawed and outdated
From the beginning the electoral system was found to be faulty. The election of 1800 exposed a flaw when the candidates failed to gain a majority of the electors requiring more than 30 votes in the House to rectify. As a result the 12th amendment was ratified to patch up the problem. Today we see the system which has not foreseen the two-party system of the nor the realities of a modern politics continues to produce problems and is unpopular. A change is long over due.

Cards –

The Electoral College is archaic and unfair

Honorable Birch Bayh, U.S. Senator, Indiana, Democrat address before the Subcommittee on Constitutional Amendments August 23, 1967 proposal to change the method of electing the President
Unfortunately, modern America continues to choose its Presidents by means of what I feel is a “horse and buggy” system that can easily subvert the popular will and frustrate the choice of a majority of Americans. It is possible under the present system, for example, for one candidate to win a majority of the electoral vote by polling only 25 per cent of the popular vote. That is a travesty of the democratic process.

American Bar Association, from the report to the Subcommittee on Constitutional Amendments August 23, 1967 proposal to change the method of electing the President
The electoral college method of electing a President of the United States is archaic, undemocratic, complex, ambiguous, indirect and dangerous.  Among other things, the present system allows a person to become President with fewer popular votes than his major opponent; grants all of a state’s electoral votes to the winner of the most popular votes in the State, thereby cancelling all minority votes cast in the State; makes it possible for presidential electors to vote against the national candidates of their party; awards all of a State’s electoral votes to the popular winner in the State regardless of voter turnout in the State; assigns to each State at least three electoral votes regardless of its size; fails to take into account population changes in a State between censuses; allows for the possibility of a president and vice president from different political parties; and employs an unrepresentative system of voting for President in the House of Representatives.

Schlossberg, Steven I., General Counsel, United Autoworkers, testimony before the Subcommittee on Constitutional Amendments August 23, 1967proposal to change the method of electing the President
Last but very far from the least objectionable, is the machinery that presently exists for situations where no candidate gets a majority of the electoral votes. In these case the House of Representatives chooses the President, each State having one equal vote. At this point any resemblance to majority rule becomes purely coincidental.

The ‘winner-take-all’ formula contributes to gross distortion of election results

Honorable Birch Bayh, U.S. Senator, Indiana, Democrat address before the Subcommittee on Constitutional Amendments August 23, 1967 proposal to change the method of electing the President
The gross distortions that are possible under the present system are the result, of course, of the inequitable unit rule that is now custom in all 50 states [as of 2011 it is 48 states, Maine and Nebraska being the exception]. The winner-take-all formula, as it is commonly known, is not a constitutional provision, but a product of the competition between political parties – political parites whose appearance was in no way anticipated or provided for in the Constitution.

American Bar Association, from the report to the Subcommittee on Constitutional Amendments August 23, 1967 proposal to change the method of electing the President
It is claimed that the system gives too much weight to some voters and too little to others; discourages voter turnout in many states; gives excessive power to organized groups in States where the parties are evenly matched, since such group sometimes are able to swing the entire electoral vote of a State to one candidate or the other; limits campaigns to pivotal states; places an undue premium on the effects of fraud, accident, and other factors since a slight change in the popular vote may determine who receives a State’s entire electoral vote; and allows for possible abuse and frustration of the popular will because State legislatures have the plenary power to establish the method of appointment of electors.

Schlossberg, Steven I., General Counsel, United Autoworkers, testimony before the Subcommittee on Constitutional Amendments August 23, 1967proposal to change the method of electing the President
First and most striking, is the possibility, allowed by the electoral college system, that a candidate with fewer popular votes than a rival will be elected president. A President with a minority of votes is sworn in and the choice of most voters is ignored. When this occurs, and it has occurred three times in our history, the basic principle of our democratic republic - majority rule - is negated. That the direct election mechanism, which would give victory to that candidate receiving the largest number of popular votes - whether in the initial election, or in a run-off,should one be required - is the most forthright, foolproof answer to this problem is so apparent as to need no elaboration.


Schlossberg, Steven I., General Counsel, United Autoworkers, testimony before the Subcommittee on Constitutional Amendments August 23, 1967proposal to change the method of electing the President
Fourth, because each State, regardless of population, has a minimum of three electoral vote, disproportionate vote weightings are structurally built into the system; the votes of citizens of the smallest State are given more than their fair value. This is clearly contrary to the one-man, one-vote application of the principle of equality. And yet, we have recently seen court attacks on the electoral college system by several of the small States.  this is because a situation when the popular vote in a State is close an individual's vote may become decisive. And the decisive vote in the large State will swing a larger number of electoral votes then in small States. Thus, in different ways the citizens of the larger and smaller States are disadvantaged.

Schlossberg, Steven I., General Counsel, United Autoworkers, testimony before the Subcommittee on Constitutional Amendments August 23, 1967proposal to change the method of electing the President
Not only is there built-in disproportionaility because of the three-vote minimum, but between censuses there is no adjustment of electoral vote allocation for population changes, thus further ensuring disproportionality.

The electoral system disenfranchises voters

Honorable Birch Bayh, U.S. Senator, Indiana, Democrat address before the Subcommittee on Constitutional Amendments August 23, 1967 proposal to change the method of electing the President
A candidate could win a majority of electoral votes by capturing popular vote pluralities – no matter how small – in a dozen of the largest States plus the District of Columbia. In such and eventuality the citizens of 38 states would have absolutely no voice in the choice of the President.

Schlossberg, Steven I., General Counsel, United Autoworkers, testimony before the Subcommittee on Constitutional Amendments August 23, 1967proposal to change the method of electing the President
Second, in that the electoral college system gives all of a State's electoral votes cast in the State it, in effect, cancels all of the other candidates' votes.  It is this cancellation of votes, of course that allows a candidate with a minority of votes to win. Perhaps just as important, the unit rule discourages voting by those certain that they will be in the minority in their State. It is undeniable that some States have strong traditions of voting for a single party;s candidates. It is submitted that where this is so citizens who favor the minority party candidate fail to vote because they know their vote is futile. Again, direct voting sis the surest, simplest answer to the problem.

Schlossberg, Steven I., General Counsel, United Autoworkers, testimony before the Subcommittee on Constitutional Amendments August 23, 1967proposal to change the method of electing the President
Third, is the possibility of presidential electors voting against the national candidates of their party. this is perhaps the most antidemocratic potentiality of the present system, and may become a reality in two ways. First, the laws of some State permit the election of a slate of unpledged electors if the are nominated in the party primaries. these electors may vote as they please. We have seen the realization of the possibility in 1948 and 1965 when unpledged electors created a situation where the Democratic candidate for President did not appear on the ballot in several States. Because the election of either the national Democratic or Republican candidates was virtually certain, the citizens of those States were effectively foreclosed from playing any role in the selection of the nation's highest officials. Even more harmful to democratic processes is the possibility that a maverick pledged elector will vote against his party;s candidates. A plan to do just that in the 1960 election was uncovered by this Subcommittee in its 1961 hearings.

The electoral system is not a proper instrument for a democratic government

Honorable Birch Bayh, U.S. Senator, Indiana, Democrat address before the Subcommittee on Constitutional Amendments August 23, 1967 proposal to change the method of electing the President
By any standards, the present electoral vote system is an imperfect device for recording the sentiment of America voters. For that reason alone it should be discarded. Any electoral system that can produce a ‘minority’ President – that is, a candidate who has won an electoral majority while receiving fewer popular votes than his opponent – is not a proper instrument for democratic government.

The electoral system is flawed

Honorable Birch Bayh, U.S. Senator, Indiana, forward to Every Vote Equal, 1 March 2006
However, it soon became apparent that the Electoral College process devised by the Founders was flawed. In 1804 the initial Electoral College system was changed through the adoption of the 12th Amendment. Additional weaknesses became apparent. In the 1800s, there were three instances when the popular vote winner lost the Presidency. In 1824, John Quincy Adams was a minority vote winner over Andrew Jackson, as were Rutherford B. Hayes over Samuel J. Tilden (1876), and Benjamin Harrison over Grover Cleveland (1888).  This anomaly is not that rare in the Electoral College system. In fact, a small shift of votes in one or two states would have thrown the election to the second-place vote winner five additional times in the last 60 years.


CON Direct Popular Vote flawed – Electoral College is good
(sorry these are JSTOR sources)

One Vote for the Electoral College
Author(s): John J. Turner Jr.
Source: The History Teacher, Vol. 40, No. 3 (May, 2007), pp. 411-416
Published by: Society for History Education
Stable URL: http://www.jstor.org/stable/30036833


Direct popular vote would be manipulated by special interests
Turner 2007 The History Teacher, Vol. 40, No. 3 (May, 2007)

This successful and satisfactory system, one that has worked with only a few close calls, would dissolve with the abolition of the Electoral College, exposing the nation to dangerous forces that could tear it apart. The point can best be illustrated by examining one widely supported reform proposal: direct popular election of the president. While there are variations of this plan, most call for the winning candidate to receive a popular plurality (forty percent is often mentioned) and a run-off election if that is not achieved. If no longer required to win electoral votes, however, every regional, ideological, or special interest group would have a chance to influence the outcome. By sponsoring candidates who could prevent major party nominees from securing a plurality of the popular vote, they would have the leverage to determine which of the leading candidates prevailed in the run-off election. Or they could so dilute the popular vote that the run-off would be between two candidates who had received only a fraction of the tallies, producing a leader who lacked broad, national support. Moreover, the staggering financial costs of run-off elections would increase the influence of special-interest brokers with deep pockets in a system that is already too much influenced by money. In any event, factions would have a deleterious impact upon our national plebiscite. The Founders worried about the negative and dangerous influence of such groups and it should worry us today.


Direct popular vote would destabilize the political process
Turner 2007 The History Teacher, Vol. 40, No. 3 (May, 2007)

Direct popular election of the president would also disrupt our political equilibrium by opening the campaign to sharp ideological debates leading to severe fragmentation in the electorate and possibly irreconcilable splits in our society. These tensions always exist below the surface in America where, like a steaming volcano, the right forces would permit them to erupt. Today these explosive issues have generally been resolved or tempered at a secondary level in the national conventions where hard-edged interests are compelled to compromise to gain the broad popular support necessary to ensure a majority in the Electoral College. It is difficult to measure the value of this safety valve in our heterogeneous society, but it must be counted as one factor that contributes mightily to stability in America, even in this time of heated partisan politics.


Direct popular vote can result in indefinite delays if a recount is necessary
Turner 2007 The History Teacher, Vol. 40, No. 3 (May, 2007)

Another troublesome problem with a system of direct popular election of the president involves the complexity of counting the vote on a national rather than a state level. In close or disputed elections a national recount might be required, an enormous task that could delay a result indefinitely. Today recounts in one or more states are important only if having an accurate count would determine the winning totals in the Electoral College.





Popular Myths about Popular Vote-Electoral College Splits
Author(s): Brian J. Gaines
Source: PS: Political Science and Politics, Vol. 34, No. 1 (Mar., 2001), pp. 70-75
Published by: American Political Science Association
Stable URL: http://www.jstor.org/stable/1350312


Winning a popular vote does not confer special legitimacy.  Candidates know the campaign is won in the electoral system
Gaines 2001 Political Science and Politics, Vol. 34, No. 1

A reminder that an electoral-college- popular-vote split occurred as recently as 1960 is one rebuttal to claims that the 2000 result was unprecedented or resolvable only by extraordinary means. Whether Nixon was admirably noble or merely self-interested and far-sighted in not trumpeting his popular vote edge and/or pursuing alleged instances of Democratic fraud more vigorously is immaterial. The larger point is that neither Nixon nor Gore really earned special legitimacy by virtue of having won a popular vote plurality that did not produce an electoral college majority. Since all candidates pursue the presidency knowing full well that it is won in the electoral college, there is no serious reason to treat the aggregate of state vote totals as conferring special moral authority. In this article, I have detailed a few of the reasons why the popular vote is a rather nebulous quantity, not a precise statistic. As long as the electoral college system remains in place, the popular vote winner is essentially a curiosity. Majoritarian impulses run deep in Americans, but it should be clear that if the presidency were won by national popular vote, campaign strategies for all of the candidates would be very different. To borrow an analogy, arguing that a candidate "deserves" the presidency because he won a popular vote plurality is akin to arguing that a team "really won" a football game in which it out-gained its opponents in total yards but somehow failed to score.



The State of U.S. Federalism, 2000-2001: Continuity in Crisis
Author(s): John Kincaid
Source: Publius, Vol. 31, No. 3, The State of American Federalism, 2000-2001 (Summer, 2001),pp. 1-69
Published by: Oxford University Press

The electoral system affirms the majority will
Kincaid (2001) Publius, Vol. 31, No. 3, The State of American Federalism, 2000-2001

Yet, the usual correspondence between the popular and electoral votes also weakens the abolitionist case because the electoral college rarely frustrates the majority's will. A direct popular vote could be problematic because the winner of 19 (42 percent) of the 45 presidential elections since 1824 received less than 50 percent of the popular vote. If the threshold for winning a direct popular vote were 50% + 1, expensive and possibly divisive run-offs would be needed frequently, and perhaps more so than in the past because direct election would likely bring more parties and candidates into the presidential arena. If no threshold were set, then even more candidates would enter the contests, possibly fragmenting the system, and a candidate might win the presidency with only 30 percent of the vote. Although John Quincy Adams secured the presidency with 30.5 percent of the popular vote in 1824, and Abraham Lincoln won it in 1860 with 39.8 percent of the popular vote, Adams was a weak one-term president, and Lincoln might have been a weak one-term president, too, had the civil war precipitated by his election not offered the occasion for him to demonstrate greatness. Ordinarily, the electoral college also has the symbolic effect of magnifying the popular vote winner's margin of victory. Lincoln received 59 percent of the electoral vote. On average, the winner of presidential elections from 1892 to 1996 won 53 percent of the popular vote but 76 percent of the electoral vote.


"The Contemporary Presidency": Do Nebraska and Maine Have the Right Idea? The Political and Partisan Implications of the District System
Author(s): Robert C. Turner
Source: Presidential Studies Quarterly, Vol. 35, No. 1 (Mar., 2005), pp. 116-137
Published by: Blackwell Publishing on behalf of the Center for the Study of the Presidency and Congress


Modifying the electoral system from winner take to all to a districting model enhances citizen participation
Turner 2005 Presidential Studies Quarterly, Vol. 35, No. 1

While the adoption of the district system would change how the popular vote is translated into electoral college votes, its major impact would come from changing the electoral strategy of presidential campaigns from battleground states to battleground districts. Under the district system, presidential candidates would have to campaign in more states and build a broader geographical electoral coalition than under the winner-take-all system. The change in campaign strategy would presumably increase citizen participation and voting in presidential elections. To strengthen the party ticket and their own electoral prospects, presidential campaigns would place a greater emphasis on recruiting higher-quality congressional candidates in battleground districts. This change would increase the competitiveness of congressional elections and the likelihood that the winner of the electoral college would also enjoy a partisan majority in the House of Representatives. However, any reform that changes how votes are counted changes the political clout of those affected. Battleground districts are more White, less dependent on public assistance, and more Republican than the nation as a whole. This demographic and partisan analysis suggests that the district system would favor Republican presidential candidates, although it is unclear whether this is because of the partisan leanings of battleground districts or a combination of the conduct of the presidential campaigns and the existence of majority-minority districts. Finally, contrary to the conventional wisdom, the district system diminishes the impact of third-party candidates on electoral outcomes and the incentives and opportunities for voter fraud significantly more than the winner-take-all system.


A districting model for the electoral system reflects voter preference better
Turner 2005 Presidential Studies Quarterly, Vol. 35, No. 1

However, even if states engage in extreme partisan redistricting, the distribution of a state's electoral college votes under the district system would more closely reflect the actual distribution of voter preferences than under the winner-take-all system. Each party's candidates would receive at least some electoral college votes in both battleground states, where there is a small difference in popular support between the two parties such as in Pennsylvania, and in one-party-dominated Republican and Democratic states such as in Texas and California.

A districting model for the electoral system is good
Turner 2005 Presidential Studies Quarterly, Vol. 35, No. 1

My own view is that the optimal presidential electoral system would encourage presidential campaigns to build broad electoral coalitions, stimulate citizen interest and turnout in presidential elections, produce a president who can govern, strengthen the two-party system, discourage electoral fraud, and be relatively neutral. I think the district system excels in meeting these criteria.
  

Sunday, February 26, 2017

LD Mar/Apr 2017 - The Right to Housing - Negative Position

Resolved: The United States ought to guarantee the right to housing.


Negative Position

I personally think the negative position will be problematic for many debaters. I guess one of the main reasons for this is human rights are popular. No one wants to violate another's human rights. Governments from around the world are embracing the Universal Declaration of Human Rights (UDHR) as a basis for their constitutions and national laws. Generally speaking, the social reforms embodied in the UDHR are good ideas and certainly beneficial to the well-being of humans everywhere and so it is not easy finding evidence which counters these ideas. Of course by now, if you have done any research you have discovered this for yourself. When looking at this resolution, we could focus on the "ought" mandate. For example, there is an argument that "ought" implies "can" and if one cannot do what one ought, then for her it is no longer a moral duty. Consider the drowning child analogy. If one sees a drowning child, one (ought) has a moral duty to rescue the child. But what if the witness is incapable of swimming? In this case, the duty to act is contingent upon the the understanding the individual is capable of fulfilling the duty. So the Neg debater can work the idea of the analogy into a contention and claim that nations ought guarantee the right to housing only if they are able. It will still be a difficult debate, because how can a rich nation like the U.S. claim it cannot while a less affluent nation like South Africa embraces the duty? For this analysis, I will take a different track. I will spend a great deal of effort in looking at at the so-called "right" to housing. Why is it a right? What exactly is a right? I will argue the "universal" qualification of the UDHR is questionable. I will also do some discussion on the clash of rights. When one right infringes upon another, how to we resolve the conflict?  Finally, I want to take you on a completely different kind of course, a kind of critical assessment of the concept of giving and its implications with respect to the old but rarely debated (these days) philosophy of biopower.


Protection of Inalienable Rights

Those who have been engaged in Lincoln Douglas debate throughout their careers or even in the course of this single year are probably already familiar with the political philosophy of John Locke. Locke speaks about the state of nature and the emergence of the social contract as a mechanism for protecting the natural rights, which for him are life, liberty and property (or the pursuit of happiness for others). In political theory, these are considered the inalienable rights, that is, those rights which no government should ever infringe. The idea of liberty is seen as an expression of autonomy or self-rule and was not to be easily given up to the government. The founding fathers of the United States and those who drafted the U.S. constitution, were influenced by Locke and other political philosophers of the day and sought to establish a nation which protected the inalienable rights. The transfer of property as advocated in this resolution was contrary to the principle of guarding the natural rights. Autonomy permitted each to retain or dispose of their property as they saw fit.

Green (2012):
In eighteenth century political thought, rights were founded in reason. The idea was that "the world and its relation to human society [was] a single intelligible structure," capable of comprehension through the application of reason. The concept of human autonomy emerged, which presupposed a belief in self-regulation, development, and direction. We were no longer bound to a world driven by the exorable movements of the natural world, but now humans could transform their world from one of basic self-preservation to a rational form of conscious planning. Autonomy became the premise for emergent theories of society that presupposed basic needs and legal entitlements. It became the duty of government to promote and refrain from interfering with "the integrity of self-determination in human creative action." This also meant that "[w]hether guaranteeing a sphere of freedom in which the [person] can act, or assuring the minimal conditions under which the [person] might live, the notion of rights became inseparable from the conditions of the factual world." Although, "in some sense, any normative principle differs from the factual world insofar as it is an ideal for, rather than a reflection of, the ordering of the world."
At the time of the Declaration of Independence, this duty to enable self-determination was not interpreted to mean a duty to ensure some ownership of property to all citizens, even if unequal. Instead, the aim was to protect from governmental interference those inalienable rights, identified as "life, liberty and the pursuit of happiness." These rights were interpreted to mean not only protection against physical assault, but also the recognition and identification of a certain personal sphere of autonomy necessary for self-realization and selffulfillment. However, the failure to attempt to spread property ownership seemed inconsistent with the highly influential labor theory of property, famously described and explained by John Locke. [397-398]

Lincoln Douglas debaters should understand the concept of negative and positive rights and the role of the constitution in guaranteeing rights. Rights are justified claims made upon others. In order to assure my rights (claims) others have an obligation to honor those claims. Think of the social contract in this context. A claim of a right upon others is like a contract. More properly, I suppose, we can see how my claim to a right imparts a moral duty upon others to grant my right.

Velasquez, et al (2014):
Kant maintained that each of us has a worth or a dignity that must be respected. This dignity makes it wrong for others to abuse us or to use us against our will. Kant expressed this idea in a moral principle: humanity must always be treated as an end, not merely as a means. To treat a person as a mere means is to use a person to advance one's own interest. But to treat a person as an end is to respect that person's dignity by allowing each the freedom to choose for himself or herself.
Kant's principle is often used to justify both a fundamental moral right, the right to freely choose for oneself, and also rights related to this fundamental right. These related rights can be grouped into two broad categories—negative and positive rights. Negative rights, such as the right to privacy, the right not to be killed, or the right to do what one wants with one's property, are rights that protect some form of human freedom or liberty, . These rights are called negative rights because such rights are a claim by one person that imposes a "negative" duty on all others—the duty not to interfere with a person's activities in a certain area. The right to privacy, for example, imposes on us the duty not to intrude into the private activities of a person.
Kant's principle is also often used to justify positive or, as they are often called, welfare rights. Where negative rights are "negative" in the sense that they claim for each person a zone of non-interference from others, positive rights are "positive" in the sense that they claim for each person the positive assistance of others in fulfilling basic constituents of human well-being like health and education.

The founders of the United States understood the concept of negative and positive rights and were determined to guard the inalienable right of liberty. Since claims of rights impose an obligation upon others, rights impose a burden on liberty. Thus, there was a strong desire to limit the positive rights to maximize personal autonomy and check the powers of government. The so-called welfare rights are limited for this reason.

Argan (2005):
One of the chief analytical tools of constitutional interpretation is the basic distinction between positive and negative rights. The conventional thinking is that the Constitution confers no positive right to governmental aid or assistance; instead, the Constitution operates in a negative fashion, preventing the government from abridging certain rights or freedoms. It is often said that the Bill of Rights guarantees freedom from government interference, not a right to governmental assistance. As the Supreme Court explained in DeShaney v. Winnebago County Department of Social Services:
The [Due Process] Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means .... Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even when such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.[100-101]
Inherent in the foregoing discussion of rights a recognition and attempt to manage the clash of rights. In particular we see how rights claims impose duties upon others which can limit their autonomy and liberty. Our founding fathers have favored negative rights in order to preserve liberty and so the positive welfare rights which impose additional burdens on others must be carefully weighed aginst the loss of personal liberty.

The Right of Property

For John Locke, the right to property is inalienable. Property can mean many things which goes far beyond land and houses and incorporates a broad range of claims of ownership, including one's own body, and one's intellectual or creative production and also includes a recognition of privacy as a property claim. For the purposes of this resolution we can narrow our focus to housing. Our definition as stated by international statutes tells the right to housing includes much more than a mere roof over one's head. It includes what is deemed an "adequate" standard of living and so lays claim to a number of kinds of property. However, recall that tangible property is not produced by mental or physical effort without claiming rights to actual some kind of physical property. Property which already has claims by others. So the constitution guarantees the right to keep or dispose of property as one sees fit with limited government interference, but the constitution does not guarantee property ownership.

Green (2012):
At the time of the Declaration of Independence, this duty to enable self-determination was not interpreted to mean a duty to ensure some ownership of property to all citizens, even if unequal. Instead, the aim was to protect from governmental interference those inalienable rights, identified as "life, liberty and the pursuit of happiness." These rights were interpreted to mean not only protection against physical assault, but also the recognition and identification of a certain personal sphere of autonomy necessary for self-realization and selffulfillment. However, the failure to attempt to spread property ownership seemed inconsistent with the highly influential labor theory of property, famously described and explained by John Locke.[398]

The preservation and protection of property was seen as a protection of the inalienable right to liberty. This is further explained in the source as Green continues.

Green (2012):
Indeed, at the Philadelphia Convention, Alexander Hamilton stated: "It was certainly true that nothing like an equality of property existed: that an inequality would exist as long as liberty existed, and that it would unavoidably result from that very liberty itself." [400]

Property has value to be protected because some of the founders believed it permits individuals to work toward greater autonomy and less dependence upon the government. But, the value of property is preserved only when it is protected.

Green (2012):
The value of property is realized only when it is protected, that is, backed up by the state. In this sense, as stated in the beginning of this Article, property is about the right to exclude from the vantage of one with property or with the ability to acquire it. "[T]he power to exclude that our legal structure of property gives us is the starting point of all contracting, all negotiation over use of, access to, and exchange of property and labor." The constitutional protection for property can be perceived as protecting individual autonomy by erecting walls around rights beyond which the government or other individuals may not intrude. But where one lacks a sphere of one's own, and is entirely dependent upon the charity of others, one cannot be said to be autonomous. Like liberty, property facilitates democratic selfgovernance both directly and indirectly. It does so directly by dispersing power, thereby creating a means of enforcing accountability, and indirectly by facilitating the exercise of other liberties. [402]

The Legitimacy of Human Rights

Locke's inalienable rights are seen as universal. All humans, regardless of ideology, religion, or social and economic status are entitled to these legitimate claims. Indeed, it can be argued the natural rights are bestowed upon humans impartially either by divine provenance as many 18th century philosophers believed or by virtue of our innate commonality as a species. The epistemological basis of rights is disputed but nevertheless one can argue Human Rights lay claim to a similar foundation. However, if the Neg can show that so-called housing rights are rooted in political aspiration rather than the fundamental value system common to all humans the judge should reject the Aff claims that housing is a universal right.

Fitzpatrick & Watts (2010):
First, and most fundamentally, intrinsic to the notion of human rights is the idea that they are self-evident, inalienable and non-negotiable: ‘absolute’ in other words. But are the rights declared by the architects of international and European human rights instruments – particularly social rights such as the right to housing – any less politically contested than other claims about how material resources should be distributed in society? One could argue that labelling such claims as moral ‘rights’ is a mere rhetorical device intended to shut down debate by investing one’s own particular political priorities with a ‘protected’ status; after all, as Dworkin (1977) put it, ‘rights are trumps’. But if one dispenses with theological or other natural law justifications for human rights, then what is the foundation of their protected status? Many human rights supporters argue that they are not anchored in a pre-social natural order or in divine reason, but rather are socially constructed and inter-subjective, rooted in a broad normative consensus about the things that all human beings are morally entitled to in order to attain a basic standard of living and to participate in society (Dean, 2010). But the idea that such a consensus exists at a global level is, at the very least, highly arguable (Finch, 1979; Miller, 1999; Lukes, 2008).[109]

As I outlined in the Affirmative analysis of this resolution, the universal human right to housing spans the range of human needs. However, the Negative side of this resolution claims that legitimizing human rights on the basis of human needs is a flawed construct.

Fitzpatrick & Watts (2010):
Such arguments are intuitively appealing, based as they are on the common-sense premise that people have a right to what they need, albeit that positivists might argue that they illegitimately derive an ‘Ought’ (a value statement) from an ‘Is’ (a factual statement). However, even if it is accepted that the Is/Ought gap can be bridged by statements about human need, McLachlin (1998) gives good reasons for resisting any simple equation of needs and rights: there are many things we need that cannot be provided to us as of right. Ignatieff (1984), for example, argues that love, belonging, dignity and respect are all things that we need, but they cannot be provided within a formal framework of rights.[110]

Let's look to my previous analogy of the drowning child and consider the necessity that ought implies can. A key requirement for the legal validation of rights is the fact they can be protected. Recall, property only has value if it is protected. Human rights are legitimate only insofar as they are enforceable.

Fitzpatrick & Watts (2010):
The second common critique of human rights concerns their lack of enforceability within current institutional contexts. Scruton (2006, pp. 20–21) powerfully articulates this objection:
Rights do not come into existence merely because they are declared. They come into existence because they can be enforced. They can be enforced only where there is a rule of law… Outside the nation state those conditions have never arisen in modern times… When embedded in the law of nation states, therefore, rights become realities; when declared by transnational committees they remain in the realm of dreams – or, if you prefer Bentham’s expression ‘nonsense on stilts’.[111]

Finally, it is important to understand an other difference between natural rights and human rights revolves around the ability of governments, charged with protecting rights, to understand the scope and limitations of the claims to rights. Due to the vague nature of many human rights claims, adjudication and enforcement is by necessity transferred from the executive government to the judiciary.

Fitzpatrick & Watts (2010):
The ‘rights’ expressed in international instruments are, inevitably, broad and abstract in nature rather than detailed, delimited and contextualised. If such abstract rights were in fact to be rendered routinely enforceable via courts (international or domestic) this would amount to a major transfer of policy-making power from the political to the legal sphere. Particularly in the case of social rights such as the right to housing, the granting of wide-ranging policy discretion to the courts implies judges determining the allocation of scarce resources in situations where ‘hard choices’ have to be made between a range of needy and/or deserving cases (see also King, 2003). The term ‘over-socialisation’ has been used to describe the situation whereby courts are inappropriately used to decide policy issues (Dean, 2002) and sensitivity to this point lies behind the classic international law distinction between obligations of ‘means’ and obligations of ‘results’ with respect to social rights such as housing (Hammarberg, 2008). Aside from the obvious constitutional concerns about judges rather than (one would hope democratically elected) politicians setting broad policy aims and priorities, it would be unwise for those of a progressive political bent to assume that the judiciary is always apt to be on their side (Griffiths, 1991).
[111-112]

This kind of transfer of power violates the U.S. constitutional principles behind the balance of power, needed to check the powers of the U.S. government. But there is another reason to reject the clams to some human rights including the right to housing as legitimate rights within the context of international law. Many of the rights fail the precept of universality.

Tasioulas (2013):
I believe any variant of the general thesis that human rights bear a constitutive relationship to political legitimacy faces a powerful dilemma in meeting the desideratum of fidelity to the post-Universal Declaration culture of human rights. If compliance with human rights it taken to approach anything like a sufficient condition of legitimacy, a problem will arise in capturing a central feature of human rights thought. This is the idea that the self-same set of human rights, including broadly identical normative content in the duties associated with those rights, is attributable to all human beings throughout the globe. The uniformity of content of human rights, so understood, is in tension with the relational character of assessments of legitimacy. By the latter, I refer to the fact that whether or not any particular state is legitimate depends upon the obtaining of a certain kind of relationship between the state in question and its putative subjects. This relational character means that the selfsame law, or laws with identical content, can be legitimate with respect to some putative subjects and not others. We see an illustration of this tension in Dworkin’s theory, in which compliance with human rights operates as something close to a sufficient condition of legitimacy. Deploying his “good faith test” of legitimacy, Dworkin points out that “a health or education policy that would show good faith effort in a poor country would show contempt in a rich one.” This means that the normative content of the human right to health—the substantive level of health care that it makes obligatory—can vary enormously from one country to another. In a rich country, good faith about human dignity may require the provision of IVF treatment or even some forms of cosmetic surgery, whereas inhabitants of poorer countries would only be entitled to the most rudimentary levels of health care, or perhaps would have no positive entitlement to health care services at all. On this sort of view, the idea that the human right to health confers the same entitlement to all human beings has been effectively eviscerated.

Finally, I will close this discussion of the legitimacy of the universal right to housing by looking at the implementation of such a right, in particular the burdens and practically its application places on governments. Let's see if passes the common sense test.

Sunstein (2003):
If we take the pragmatic approach, we will be likely to ask whether social and economic rights would be a sensible part of an enforceable constitution containing the important institution of judicial review. Should a constitution create a “right to just and favourable remuneration”? To “a standard of living adequate for the health and leisure of” one’s family, “including food, clothing, housing and medical care and necessary social services”? To “rest and leisure”? What would these provisions mean, concretely? What would they mean in a poor nation with high levels of unemployment and inadequate medical care and housing? What would they mean, concretely, in a wealthy nation like the United States or France? If a nation failed to protect the relevant rights, would courts be authorized to intervene—as they usually are when rights are violated? [11]

We don't need to speculate about the answer or surmise theoretical examples or speculations. We can look to places where such laws protecting these kinds of rights are already implemented and note, their impractical nature has forced governments to erect the veneer of compliance while passing over the enforcement duties the laws demand.

Sunstein (2003):
American courts have been reluctant to recognize social and economic rights in part because of a belief that enforcement and protection of such rights would strain judicial capacities. Political actors, even those interested in helping poor people, have been skeptical about the likely effectiveness of constitutional provisions that might be ignored in practice. Outside of the United States, some nations, including India and South Africa, have been alert to the underlying difficulties, and have sharply limited the constitutional status of such rights by reducing judicial authority. And as I have noted, social and economic rights have served as aspirations, with apparently no real-world effects, in the many nations in which they are recognized. It is hard to show that when nations are relatively more likely to help poor people, it is because they have constitutional provisions calling for such help.[11]

The bottom line for Sunstein is nations inclined to help the underprivileged will do so, but enactment of welfare laws such as the right to housing is no guarantee such a right will be realized.


A Kritik of Sorts

While a-priori critiques (kritiks) are fairly common in Lincoln Debate on the national circuit, kritiks remain forbidden ground in traditional circuits. As a policy debate coach, I am very familiar with many kritiks but as a coach on a traditional LD circuit we tend to shy away from critical debate which challenges the resolutions and rhetoric of the proponents. Of course, I think that it is possible to leverage the philosophical foundation and impacts of many kritiks, structure them into a traditional package and run them. Many of the sources for this section are taken from the Gift-K still available online in various contexts relative to past Policy Debate and LD resolutions. Where possible, I have refreshed the links to the cards in the Sources section of this post below. The Arrigo & Williams paper is in my personal archive but the section I quote is seen in many of the online sources embedded in the Gift-K. Bear in mind, I am not going to take this beyond the cards shown below and this explanation of how to apply them.

Simply put, the basic premise of the Gift Kritik, relevent to foreign aid or aid to the underprivileged is the idea the giving of a gift (in the form of aid) generates a reciprocal obligation in the recipient. It is usually an obligation that cannot be repaid and so the gift becomes a form of biopower or dominance of the underprivileged who is indebted (enslaved) to the giver.

Ahluwalia (2001):
By drawing on the analogy of the sun, Bataille examines the theory of the potlatch, which Marcel Mauss had posited, arguing that the system of exchange did not necessarily entail reciprocity. For Bataille, the purpose of gift giving is not merely to receive gifts in return, but that through the act of giving there is an acquisition of power. And this action that is brought to bear on others is precisely what constitutes the gift’s power, which one acquires from the fact of losing. (p. 70) But the one who receives then feels obligated to return a gift, and in the process seeks to outdo the original gift-giver in order to obliterate the effect of obligation. And yet, for Bataille, the ideal potlatch would be one that could not be repaid. It is this sense of spending and dissipation that determines and measures wealth. He points out that the purpose of the potlatch is not simply reciprocity but the conferring of rank upon whomever has the last word. The potlatch thus should be seen as an example of the general economy where excess and luxury are the key defining aspects. The general economy is an economy without equilibrium, one characterised by loss and expenditure without return. In short, gift giving without the expectation of return within the principle of the general economy is a luxury — the excess that is necessary to keep the system in balance [18]

The U.N. suggests the right of housing should be embedded into the development policies of nations and thus housing is recognized as an inherent element of progress. But development is a luxury enjoyed by those nations which have crossed the peak of the Kuznets curve. Development in and of itself is a manifestation of privilege and can serve to "otherize" less developed nations.

Gordon & Sylvester (2012):
The concept of development privileges certain societies, cultures and institutions, while disparaging others; it is grounded in defining the “Other” as incompetent, inferior and in need of transformation. That most “undeveloped” people are people of color only reinforces the Western view of the developing world as essentially dysfunctional, for it comports with American views of brown and black people in the United States. For Europeans the development project continues the colonial civilizing mission. Taking up where colonialism and the “White man’s burden” left off, the development project provides the legal and moral justification for substantial interventions in the affairs of those who have been categorized as underdeveloped.14It justifies and supports the economic and political status quo and the imbalance of international power, and it renders the underdeveloped powerless, for it is the developers who name subjects, problems and solutions. The objective in the following pages is to construct and then deconstruct the concept of development, and to question whether development is so fundamentally flawed that it should be abandoned in favor of a post-development paradigm.[5]

Thus the creation of the "other" empowers economic domination and entrenches the hegemonic ambitions of the privileged nations.

Gordon & Sylvester (2012):
A critical aspect of the dominance of the West resides in its power to produce and propagate knowledge and to thereby create categories such as the underdeveloped. The West has been able to define and indeed to create the “Other” – objects to be studied, described and developed, and that “Other” is invariably lacking, deficient, inferior, and in need of Western assistance. This power to define and represent others is assumed “in the portrayal of ways in which people live their lives, in articulating their experiences – and on this basis, in shaping the processes of change.” Peoples with complex and varied histories, cultures and communities became homogenized masses mired in intolerable poverty and in need of Western assistance. The objects of development proliferated and included, inter alia, poverty, insufficient technology and capital, rapid population growth, inadequate public services, and archaic agricultural practices; new problems were continually incorporated, categorized and further defined. Indeed, the “vast surface over which the discourse effortlessly moved eventually covered practically the entire cultural, economic and political geography of the Third World.”
[79-81]

The basis of the original Gift K (at the time when I first heard of it) was this paper by Arrigo and Williams. Here is the introduction to their thesis.

Arrigo & Williams (2000):
The impediments to establishing democratic justice in contemporary American society have caused a national paralysis; one that has recklessly spawned an aporetic existence for minorities. The entrenched ideological complexities afflicting under- and nonrepresented groups (e.g., poverty, unemployment, illiteracy, crime) at the hands of political, legal, cultural, and economic power elites have produced counterfeit, perhaps even fraudulent, efforts at reform: Discrimination and inequality in opportunity prevail (e.g., Lynch & Patterson, 1996). The misguided and futile initiatives of the state, in pursuit of transcending this public affairs crisis, have fostered a reification, that is, a reinforcement of divisiveness. This time, however, minority groups compete with one another for recognition, affirmation, and identity in the national collective psyche (Rosenfeld, 1993). What ensues by way of state effort, though, is a contemporaneous sense of equality for all and a near imperceptible endorsement of inequality; a silent conviction that the majority still retains power. The “gift” of equality, procured through state legislative enactments as an emblem of democratic justice, embodies true (legitimated) power that remains nervously secure in the hands of the majority.
The ostensible empowerment of minority groups is a facade; it is the ruse of the majority gift. What exists, in fact, is a simulacrum (Baudrillard, 1981, 1983) of equality (and by extension, democratic justice): a pseudo-sign image (a hypertext or simulation) of real sociopolitical progress.
For the future relationship between equality and the social to more fully embrace minority sensibilities, calculated legal reform efforts in the name of equality must be displaced and the rule and authority of the status quo must be decentered. Imaginable, calculable equality is self-limiting and self-referential. Ultimately, it is always (at least) one step removed from true equality and, therefore, true justice.
The ruse of the majority gift currently operates under the assumption of a presumed empowerment, which it confers on minority populations. Yet, the presented power is itself circumscribed by the stifling horizons of majority rule with their effects. Thus, the gift can only be construed as falsely eudemonic: An avaricious, although insatiable, pursuit of narcissistic legitimacy supporting majority directives. [321-322]

This contention can be developed into an interesting and compelling argument which can open the door to Foucault and other more contemporary philosophies. Biopower has quality of life impacts and can make for interesting and fun debate with receptive judges.

The Value Framework

I will conclude this post with a very brief overview of the value framework. The underlying themes which call out to me on this particular Neg position are autonomy and liberty.  The value premise of autonomy is very important in the American culture and one that should play well with judges. The Neg preserves autonomy by maximizing personal liberty or choices. The same came be said of liberty. Every new positive right imposes a limitation upon personal liberty and so the Neg preserves liberty by limiting government overreach. I also think government legitimacy is a possible value with additional focus in the contention debate on how attempting to comply with UDHR requirements burdens the citizens, deprives them of liberty or violates the social contract. These are simple ideas, easy to debate and in need of further development. Neg will be facing an Aff world in which the underprivileged suffer grave harms. Certainly Neg can sympathize with the harms of the status quo. But let's not lose sight of the fact there are plenty of groups trying to address these problems, but the human rights context is not a legitimate path to solvency.


Sources:

Ahluwalia P (2000) “Towards (Re)Conciliation: The Post-Colonial Economy of Giving”, 01 March 2000, Accessed 2011 at: http://wiredspace.wits.ac.za/bitstream/handle/10539/7560/HWS-4.pdf?sequence=1 

Argan K (2005), When Government Must Pay: Compensating Rights and the Constitution, 22 CONST. COMMENTARY 97, 115 (2005). Accessed 2/15/2017 at: https://conservancy.umn.edu/bitstream/handle/11299/169822/22_01_Agran.pdf?sequence=1&isAllowed=y

Arrigo, B; Williams, (2000) C (California School of Professional Psychology), 2000 “The (Im) Possibility of Democratic Justice and the "Gift" of the Majority.” Journal of Contemporary Criminal Justice.

Fitzpatrick, S; Watts, B (2010),  The 'Right to Housing' for Homeless People. In E. O'Sullivan, V. BuschGeertsema, D. Quilgars, & N. Pleace (Eds.), Homelessness Research in Europe. (pp. 105-122). Accessed 2/15/2017 at: http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.456.1897&rep=rep1&type=pdf

Gordon  RE, Sylvester JH (2012), Deconstructing Development, Wisconsin International Law Journal, Vol. 22, No. 1, 2012. Accessed 2/15/2017 at: https://hosted.law.wisc.edu/wordpress/wilj/files/2012/02/gordon_sylvester.pdf

Green SD (2012), Imagining a Right to Housing, Lying in the Interstices, 19 Geo. J. on Poverty L. & Pol’y 393 (2012). Accessed 2/15/2017 at: http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1845&context=lawfaculty

Sunstein CR (2003), "Why Does the American Constitution Lack Social and Economic Guarantees?," University of Chicago Public Law & Legal Theory Working Paper, No. 36 (2003). Accessed 2/10/2017 at: http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1384&context=public_law_and_legal_theory

Tasioulas, J (2013), Human Rights, Legitimacy, and International Law, Am J Jurisprud (2013) 58 (1): 1-25. Published: 21 May 2013. Accessed 2/15/2017 at: https://academic.oup.com/ajj/article/58/1/1/152203/Human-Rights-Legitimacy-and-International-Law

Velasquez M, Andre C, Shanks T, Meyer S.J. and Meyer M. J. (2014), Rights, Markkula Center for Applied Ethics, Aug 8, 2014. Accessed 2/17/2017 at: https://www.scu.edu/ethics/ethics-resources/ethical-decision-making/rights/