Tuesday, January 31, 2012

Should Birthright Citizenship be Abolished?


For more about Public Forum Debate including topic analysis, strategies and links to evidence, *click here*.



The All-Mighty Law of the Land
I don't know, but I would think by now, PRO debaters are going crazy.  How in the world should the PRO position be debated?  Our past experience with PF debate suggests that in matters of constitutional law, resolutions which seem to call for the abolition or modification of provisions of the U.S. Constitution have a very difficult road to travel.  I think part of that difficulty stems from the fact the U.S. Constitution is elevated to such a high-value instrument that must be protected at all cost.  After all, it is the instrument that codifies and guarantees our freedoms and is the standard by which all the thousands of laws and statutes which govern our day-to-day existence must meet.  The Constitution is precious and so by necessity, very difficult to delete, amend, dismiss or ignore.

So, as the PRO debater, let us acknowledge that.

What's to be Done?
At the end of the day, if the United States were to decide to abolish birthright citizenship, we would need to take one of three possible actions:

  1.  We could choose to ignore the provisions of 14th Amendment and past Supreme Court rulings. A sort of extended jury nullification implemented by citizens and law enforcement officials.
  2.  We could choose to amend the constitution to either repeal or modify existing provisions.  This is similar to how the 21st amendment repealed the alcohol prohibition established by the earlier 18th amendment.
  3.  We could establish one or more laws that accomplish the desired effect without violating the standards of the 14th amendment.

One could surmise that number one would be subject to many, many legal challenges and lawsuits since simply ignoring the law is also a form of anarchy or at minimum civil disobedience.  Number two would require a national campaign to repeal and would require a sizable coalition of voters determined to overturn an unpopular law.  Number three would also be subject to various legal challenges since states are typically not allowed to over-rule the provisions of the Constitution even though some lawyers contend there are ways to frame such laws to accomplish the desired affect.

What Doesn't the Resolution Say?
As a coach, I struggle with these kinds of resolutions, because for me, I see the difference in winning or losing a debate intertwined in how far the three participants; Pro debater, Con debater and judge, want to stretch the wording of the resolution.  As I see it, the Pro team will find their case, not in the what the resolution says, but rather in what it does not say.  What does it say? "Birthright citizenship should be abolished in the United States."  What does it not say? Simple, everything else that is not explicitly stated in the words or intent of the resolution.  It does NOT say, a law should be passed or repealed or amended even though the path to abolishing will require a law be passed, repealed or amended.  Simply put, the resolution does not require either side to propose a plan nor debate a method for achieving the goal.  It simply says, birthright citizenship should be abolished.

The Key is "Should"
In the past I have heard debaters complain that certain PF resolutions were similar to LD resolutions because they seemed to require a debate over values.  Perhaps this one will be subject to the same criticism because as I see it, the resolution is simply asking the two sides to debate whether or not birthright citizenship should be abolished, not how it should be abolished.  Is it the right thing to do? Nothing more needs discussed. It is not asking anyone to defend that fact that laws are often very difficult to frame and the Constitution is very difficult to amend.  In a world where we can forget about the logistics and simply focus on whether or not something should be done, issues like popular opinion, moral obligations, attitudes, and subjective practicalities are legitimate discussion points and allow us to focus on the real question being posed by the resolution, "should" it be done?

How the Round "Should" be Debated
Quite simply, this resolution should be framed in such a way, the debate centers on the relative merits of continuing birthright citizenship.  After all, the resolution states "should".  Should we do something or should we not and that is the debate that "should" be judged.  After that question is decided, we can discuss how we are going to do it but let's have that discussion another time and another place.  The fact that something may be difficult to do should have little or no bearing on whether or not we should do it. There is a certain dynamic and reality to a debate round, which often precludes framework.  The dynamic is the ebb and flow of the advocacy, the reality is the judge's personal input.  The first you can control, the second you can only influence. That is the reality of PF debate. So my advise for the Pro team? Set up the framework for a discussion of whether or not it should or should not be done, keep the debate on course within the constraints of the framework and hope your approach is sufficient to overcome the personal preferences of the "citizen" judge who has her own expectations.


Saturday, January 28, 2012

Domestic Violence Resolution - Can NEG make a case?


For more about Lincoln Douglas Debate including topic analyses, strategies, and links to evidence *click here*



Deadly Intentions
If I intentionally pick up and use a weapon capable of exerting deadly force can there be any doubt that I have foreknowledge use of the weapon could result in some one's death? It could be argued I foresee that use of the weapon could result in death but I do not intend death so therefore I am not acting immorally so long as my intentions were moral. So one must reasonably ask themselves, if I do not intend to use the weapon to kill, am I exerting deadly force?  Let's say, I pick up a gun to shoot the latch on a door for which I have no key.  I am using an instrument capable of killing someone but clearly I am not intending to use it to kill anyone, even if it would be enormously foolish to use it open a locked door.  Despite the stupidity of doing so, if I use the gun in such a way, am I exerting deadly force?  Maybe one could say no because a) there is little chance of anyone being killed or b) I am not intending to use it to kill. My intention is open the door which is a perfectly legitimate and moral intent. If someone should inadvertently die because I tried to open a locked door with an instrument of deadly force, am I morally culpable?  Intuitively, barring any other theory of morality I was say yes I would be morally culpable.  Further, lacking any other theory of morality, one could suggest I was morally culpable even if I did not foresee that someone might die if I foolishly used the deadly instrument in such a way because one can argue that any reasonable person should know that using a gun is such a way is inherently risky and potentially lethal. And indeed, it seems many laws and court decisions of legal culpability are based on the principle that "any reasonable person ought to know".

Proportionality
Nearly all moral theorists who support the idea that self defense is justified, require that the defensive action must be a proportional response to the threat.  Obviously if someone tried to steal some of my property and I shot and killed them to defend that property, it would be deemed that my response was unjustified because it exceeded the threat. One's life is not worth the value of the property.  Clearly, if you assault me and I shoot and kill you in response, it can be argued my response was not proportional to the threat unless I can prove "any reasonable person" would have believed that had I not responded in such a way, my own life would have been in danger.  But interestingly, as I see it, there is a kind of "double-effect" embedded in the idea of this proportional response.  On the one hand, the force I use to repel an attack should be proportional and on the other hand, any secondary consequences which arise should also be proportional to the consequences which would have resulted had I not acted to defend myself.  Let me explain by example.  If you grab me I may be expected to respond with sufficient force to break your grip.  If the force I exert is sufficient to overcome the grip and you release me, then my action may be moral.  But if you grab me, and in response I break your grip and as a consequence you fall down a flight of stairs and die your death would be an unintended consequence and that consequence exceeds the initial threat. Certainly one could claim my response was disproportionate because even though I may have legitimately acted to defend myself, any reasonable person should have foreseen the possibility of critical injury or death in the situation.

Close Proximity
Often one encounters moral theory which stipulates that a condition of morally permissible self-defense is related to proximity, immediacy or urgency. Therefore the assumption is the threat which warrants a deadly response must be so near, so imminent, there is no way to avoid it. Running away will not avert the threat.  Of course in terms of domestic violence there are again, varying analogies and scenarios to consider.  It may seem reasonable that if I am actively being physically attacked, I may take any and all necessary action to end the attack so long my response meets the other conditions of proportionality and moral intent.  But what about the situation where one is being threatened but not actively attacked?  Is a threat in and of itself sufficient ground to warrant a self-defense response if the source of the threat is not in front of your face?  This question may become less obvious if, for example I have attacked you in the past and I am threatening to attack you again at anytime. Would you be justified to shoot me from a distance?

Twisted Scenarios
By now you are probably thinking, in some ways what I say makes sense and at the same time you may may thinking of legitimate counter-arguments.  For example, in the situation where I break one's grip and they fall down the stairs and die, it can just as easily be argued, the attacker should have foreseen the possibility that my reaction could result in unintentional death and therefore should not have initiated the attack.  The point of presenting these  scenarios is to realize that framing a generalized moral theory of self-defense is an extremely difficult undertaking because it is usually possible to devise a scenario where the moral theory seems to fail and indeed, philosophers have continued to propose and debate moral theories for centuries and these theories often become somewhat arduous and complex to fully comprehend.

The NEG Strategy
On the face of it, this appears to be a very difficult resolution to debate.  If the Affirmative frames their case as a debate about the moral permissibility of self-defense, it seems to create difficult situations for Neg. After all, how can one effectively argue that self-defense is not morally permissible? Many believe it a natural right which supersedes religious values and societal prohibitions.  Even though in U.S. courts of law, the victims of domestic violence often face very difficult trials if they kill their attackers, somehow the moral permissibility of such action, under certain conditions, is unquestionable.  I don't feel it is necessary to talk about specific Aff cases nor present a detailed analysis of effective Neg arguments.  I will, however, discuss three generalized approaches for Neg to consider.

The Theoretical Debate
In my first post about this topic, I stated that I do not think the intent of this resolution was to discuss confrontational self-defense, that is, the kind where someone is engaged in a violent confrontation and so defends herself.  I felt from the very onset, a self-defense Aff would be too one-sided since it is universally agreed under certain conditions, self-defense is justified. And certainly those conditions are met in a case of repeated domestic violence which erupts into yet another violent episode ending in the defensive killing of the attacker. Who would possibly dare to argue otherwise?  Since the purpose of debate is to create clash between the Affirmative and Negative positions, each side must be given a reasonable ground upon which to stand.  If Neg has no ground, there can be no debate, and the educational purpose of debate as an academic exercise is not met so there is no real point in debating.  The NFL would not intentionally put out a resolution that limits the ground of a particular advocacy.  Unfortunately we have only the resolution upon which to judge the intent behind the wording.  I felt from the very beginning, that intent was a debate about non-confrontational self-defense.  In some debate leagues, theory arguments are perfectly fine and in this particular resolution, legitimate to argue Neg has no ground in cases of confrontational self-defense.

The Loophole Debate
I call it loophole debate because the principle requires Neg to exploit potential loopholes or weaknesses in the Affirmative position of self-defense.  It is mostly agreed that self-defense in morally justified if certain conditions are present at the time the deadly force is employed.  for example, proximity, proportionality, proper intentions, or others which vary slightly depending on the moral theory being applied.  So if the Neg knows her opponent will be using a particular moral theory, simply research the criticisms of that theory and exploit them.  I think that will usually take two approaches.  One approach requires devising scenarios which show the moral theory is not universally applicable to the array of situations which may present themselves in domestic violence situations; perhaps some, but not all. For example, one must ask the question, if a person is morally permitted to defend themselves, then is the attacker also allowed to defend himself when counter-attacked and if not, why not?  A second approach would be to effectively argue that one or more justifiable condition is not present. For example, argue the response is not proportional, or the intention is immoral.  Much of this approach, and this is my opinion, will come down to a clash of moral theories or simply the skill of the debater to make persuasive and compelling arguments.

The Traditional Debate
Finally, I think one need not directly debate moral permissibility at all.  Think about it.  At its most fundamental level, Lincoln Douglas debate is supposed to be a clash of values.  Consider that just because an act is morally permissible it does not mean it ought to be done and clearly in the case of this resolution, one does not have a moral obligation to use deadly force.  Therefore, I believe the Neg debater should clear her mind of bias and the pathos of the resolution and think about what over-arching values apply to these situations and debate them.  Is justice served, is societal welfare preserved, is life protected, are natural rights upheld?  There are so many values which may be effectively debated without making it all about moral permissibility.  Certainly traditional judges will be receptive to an old-fashioned straight up clash of competing values and this may ultimately prove to be most effective strategy of all.

Wednesday, January 25, 2012

Domestic Violence Resolution - Is the AFF Undefeatable?

Recently I was chatting with another debate coach who expressed concern about the current LD resolution and the frustration of debaters trying to defeat the Affirmative position.  Perhaps they are seeing a trend that Aff is winning more debates than Neg.  In the debates I personally have judged, I have not seen such a bias.  Clearly the idea a victim of repeated domestic violence is morally permitted to exercise deadly force is one that is difficult to overcome, perhaps because we all want to believe that given such a circumstance; such a helpless situation in which it appears there is no other option, one may use deadly force to defend oneself.  Locke argues the right of self-preservation is a natural right and so maybe it is something so basic to our core beliefs regardless of ideological up bringing, we will always want to reserve the right of self-defense.


Natural rights, i.e. a victim has a right NOT to be killed, an aggressor forfeits one's protection under the social contract, i.e. "forfeiture of life" and the principle of double-effect seem, at least in our area, to be winning the day.  Additionally, domestic violence is an inherently emotional issue. One that arouses sympathy for the victim and disdain for the perpetrator.  So how can Neg overcome all the weight which tends to tip the balance - if indeed it does exist?


Hopefully I will be able to provide some help over the next few days.  (Perhaps I am over optimistic since I not researched deeply.)  But first I suggest, the Neg debater clear one's mind of their own bias in this resolution and forget about domestic violence since this is a circumstance and rather, concentrate on the universal principle of killing in self-defense.  One finds there are conditions under which philosophers, judges and juries justify the use of deadly force but are the conditions themselves morally justifiable?  Think about this - can one really say, there was no intention to kill the perpetrator? Can one really say the victim's life is worth more than the perpetrator's? Can one really claim proportionality can be objectively evaluated?


More on this soon.

Monday, January 16, 2012

Understanding the Birthright Controversy


For more about Public Forum Debate including topic analysis, strategies and links to evidence, *click here*.



Types of Birthright Citizenship
Birthright citizenship is that granted by virtue of one's birth as opposed to being granted by virtue of some actions or status of the individual.  There are two principle types designated by Latin terminology.  Jus soli signifies "right of land" and establishes the right of individuals to claim citizenship because they were born on the soil of the country.  In the case of the United States, "soil" is also expanded to include U.S. Territories, embassies and ships and aircraft flagged by the U.S. The second type of birthright citizenship is jus sanguinis, "right of blood" which grants the right by virtue of the fact one or more of the individual's parents are already citizens of the host country.  The United States recognizes both types of birthright status and grants citizenship accordingly. Immigrants who enter the U.S. legally but are born elsewhere may be granted citizenship by a process called "naturalization".  The requirements in general are, the person must have established a residence for a period of time and must swear an oath of loyalty.  This kind of citizenship and its requirements are not part of the resolution.

The Resolution Problems
Technically, it can be argued birthright citizenship includes both jus soli and jus sanguines claims so it begs the question, what are the implications for Public Forum Debate.  To simply claim, we should eliminate birthright citizenship, would mean every individual born in the U.S. would have to earn their citizenship by other means. This includes jus sanguinis claims.  The CON debater can argue this point and try to convince the judge that he must consider all birthright citizenship in light of the resolution wording which does not draw a distinction.  But realistically, this would be a tough sell.  PF debate is supposed to be "ripped from today's headlines", as I believe I've seen it described at one time.  Though the resolution does not differentiate, based on the premise behind Public Forum debate and in light of recent controversy over the increases in illegal immigration in the U.S. we can assume the citizen PF judge will be predispositioned to listen to arguments for or against jus soli citizenship.  To suggest otherwise would be to suggest the judge's future offspring (if applicable) would need to apply for citizenship on another basis.  So for now, let us consider since the resolution states, "birthright citizenship should be abolished" it really means "jus soli citizenship should be abolished" or more precisely "jus soli citizenship in which neither parent is already a U.S. citizen should be abolished..."

The second issue I see regards the prohibition in Public Forum debate against the presentation of counterplans.  Now, this in and of itself is a tricky rule.  I have seen many times, when debaters try to discuss alternatives the charge is made they are presenting a counterplan and the judge should ignore it.  I question the meaning of the terminology "counterplan".  In my opinion, Public Forum debate was created as a sort of NFL response to criticism against Policy Debate and many of the rules of PF are decidedly "contra-policy".  Counterplans in policy debate are controversial in their own right, although they are now widely accepted and have become part of the standard arsenal of weapons used by the Negative side.  So if the intent of the rule is create a genre of debate that is unlike policy, one should understand the Counterplan is always a Neg argument and it is usually non-topical. The point is, plans in general, have no place in PF. So unless one side is presenting a plan, how can there be a counterplan? The only possible way, would be, if the resolution itself presented a plan.  If alternatives are presented in a debate with no plan, would the alternatives then be called a plan and thus violate PF rules?  Therefore, the bottom line is this. Can either side be allowed to frame a reasonable case which includes one or more alternatives? For example, can PRO establish a case which modifies the resolution and claim "we advocate the abolition of only jus soli birthright citizenship" or "we advocate abolition of all birthright and suggest better alternatives..."?  I think the answer will ultimately depend on your coaches, your regional judges and the skill of the case.  I personally will need to examine each of our debater's cases and see how the advocacy is framed, knowing judges in our area, before I can support a position.

Jus Soli and U.S. Supreme Court
To understand this section I suggest one read the details of the case entitled United States v. Wong Kim Ark which was argued near the turn of the 20th century. This case more or less, deals with the issue to be debated but be warned, the text of the decision is very lengthy and detailed.  It does, however, provide an interpretation of the 14th Amendment, Section 1 which is the issue at stake in this resolution.  Summarized, the Court established the following:

  1. An act (law) must be examined in the light of all of its parts, in consideration of any former acts this act amends, and in light of the history which existed prior to enactment.
  2. The Constitution does not define "citizen of the United States" except as put forth by Section 1 of the 14th amendment.
  3. Under common law, every child born in England to alien parents except diplomats or enemies were considered natural-born subjects of the Kingdom.
  4. The 14th Amendment is affirmative and declaratory, intended to settle doubts and controversies, not to impose restrictions upon citizenship.
  5. It affirms the ancient rule of citizenship by birth, excluding foreign sovereigns and enemies and includes children of persons of whatever, race or color.
  6. The 14th Amendment contemplates only two sources of citizenship: birth and naturalization.
  7. At the time the 14th Amendment was adopted there were no international laws inconsistent with the ancient rule of citizenship by birth within the dominion.
  8. Laws which grant citizenship on foreign-born children of citizens do not over-rule the citizenship by birth.
  9. Before the Civil Rights Act and the 14th Amendment, all white people (except diplomats, etc) were natural-born citizens.
  10. Congress's refusal to grant naturalization to Chinese persons can not be extended to Chinese persons born in the United States and subject to the jurisdiction thereof.
  11. Chinese persons born outside of the U.S. and who remain subjects of the Emperor of China are entitled to the protections and owe allegiance to the U.S. as long as they are permitted to reside here and are subject to the jurisdiction in the same sense as all other aliens and their children born in the U.S. are granted the same rights as other foreign children born in the U.S.
  12. A child born of Chinese parents, who have permanent domicile in the U.S. and are carrying on business and are not diplomats is a citizen of the United States.

In its summary decision, the Supreme Court further clarifies not only the right of citizenship by jus soli but states that any foreigner domiciled in the U.S. is subject to the jurisdiction.  Today, any Court examining challenges to a foreign child's citizenship would simply replace the word "Chinese" with the nationality of the relevant case and the principles remain the same.  Therefore, while it can be argued that any person who has established residence in the United States is subject to the jurisdiction, there is still the proviso stated in part eleven above which hangs on "permitted to reside".  At that time, the Supreme Court made its ruling, there was no discussion of "illegal" immigration and no ruling has ever been issued which deals with it.

The Principle PRO Advocacy
Given the various issues I have discussed, I feel that any PRO case which simply argues, the United States should abolish the granting of citizenship to individuals born on designated property (soil or craft) when neither parent is a citizen of the United States (having been born a citizen (jus sanguinis) or naturalized) will suffice in most circumstances.  This is the debate most reasonably informed judges will be expecting. I think in some cases, one could possibly limit the PRO advocacy even farther and establish an advocacy which applies only to the children of illegal immigrants, but such a position will likely be strongly attacked.  The fact is, most countries in the world now deny citizenship on the basis of jus soli and are not limited to illegal foreigners. 

I will address more on this resolution later...



Sunday, January 15, 2012

The Exorcist Affirmative


For more about Lincoln Douglas Debate including topic analyses, strategies, and links to evidence *click here*



LD 2012 Domestic Violence 

Introduction
I deliberately waited two weeks to update my postings to allow time to see how students would handle the new LD domestic violence resolution.  It has been very interesting.  Certainly various cases supporting the social contract are making their debut.  But one case I did not see in the last few weeks, is an idea I began evolving during the Christmas break.  I call it:

The Exorcist AFF
I remember years ago when the movie, The Exorcist played in theaters, it was the scariest movie ever made up until that time. The story and film techniques assaulted the audience with subliminal imagery and dark psychological themes, depicting a world so shocking, most people had never experienced it before.  In the film, a young girl, Regan McNeil, becomes possessed by a demon and her caregivers, desperate to deal with her increasingly bizarre behavior, resort to confining her to her bedroom while they consult with experts on how to release her from her torment.  I recall very vividly, the many scenes of running up the stairs and down the hall to her bedroom and the sense of fear the moment the door is opened because the viewer has no idea what manner of shock is about to be witnessed. And indeed, each time that door is opened the manifestations become increasingly shocking.  Outside of Regan's door, the world was normal and orderly, in spite of the frustration and fear of the caregivers, but inside her room, the world was a very different place where even the laws of physics were, at times suspended.

The door to Regan's room becomes a barrier which separates two worlds and each of these worlds operates under a different set of rules or laws.  When the door is closed, both worlds coexist, separately, but when the door is opened, the two worlds clash.  This concept, very much describes the door which separates society from domestic violence.  Outside the door, society is orderly and familiar, on the other side of the door it is brutal and unfamiliar, even abhorrent.  The outside world, is one we all experience in our daily lives, the inside world is probably one most of you have not experienced but even so, perhaps you can imagine it.  Walk through the door of a house with repeated domestic violence, close the door and enter a world where civil law no longer applies.

The "World" In Which We Live
In the United States and in many countries, the powers of the state are vastly restricted inside the domicile.  Behaviors and conditions which by necessity are restricted in public are unregulated in privacy.  In the U.S. we have purposely limited the powers of the state on our properties and at the front doors of our homes, because we want to check potential abuse by the state.  For example we require court orders to limit search and seizure actions by the state and apart from court orders there are very few justifiable reasons state agents can enter a home uninvited.  Now my purpose in pointing this out is not to invite a discussion of state's rights with respect to private property but merely to drive home the concept that we choose to live in society and abide by a so-called social contract because it serves our interests, but we prefer to live in a world where we can fully enjoy our natural-rights without restrictions and interference from society.  So we have established private domains within the public sphere and within the private domains we decide the universal rules which apply to the private realm.  So if the rules and law which govern our private lives are mostly self-determined, then what is universal and what is moral in the world which exists behind the closed door? Outside, we are under social constraints, inside, we are in our natural state. In short, we are in the state of nature.

The Door to Regan's Room
While we can agree based on natural law there is a door between public and private worlds we may not understand the extents of those worlds.  In the U.S. Constitution certain rights are guaranteed for the protection of privacy by the case of Griswold v. Connecticut (1965) established a legal precedent.
"We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred...The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men...Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family -- a relation as old and as fundamental as our entire civilization -- surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government, though not specifically mentioned in the Constitution."
So we see, the U.S. Court acknowledges the private realm is a place which predates the social contract and it is a world that should be left unhindered as much as possible by the government.  But we must also see, the world in which people lived prior to the establishment of government was the world John Locke called the state of nature and so the door to Regan's room can be seen as a metaphor for the separation of the state of nature and its natural laws from the social world and its restricted freedoms.

Morality in the State of Nature
In a essay entitled, "Locke on Punishment and the Death Penalty", (Philosophy, Vol 68, No. 264, Apr 1993) Brian Calvert observes:
"In Locke's  view, the  political  power  which gives the state the right to impose the death  penalty stems  from  the natural rights which  all people possess in  the  state  of  nature.  In  that  state  the  one  who transgresses against the  laws  of  nature  departs from  the  rule  of  reason  and  puts himself  into a state of war with  other members  of society.  Consequently those  other members  have a right  to protect themselves  as well  as others against the transgressor,  and  this right of self-protection includes  the right to  kill  the  transgressor.  In  political  society,  the right to  punish a criminal  is handed  over  to the  state,  and it now becomes  the purpose of the state to function  as the protector of the rights of its inhabitants.  The justifications  which  govern the  state's  punitive  activities  derive  from the  powers individuals  possess in the  natural condition,  and it is in the sections  devoted  to  a  description of  those  powers in  the  natural  state that  we get our  fullest  description  of  the  justifications  for imposing capital  punishment, ..."

The following comparative observations on the state of nature are taken from the Witherspoon Institute (see http://www.nlnrac.org/earlymodern/locke)
Thomas Hobbes book Leviathan (1651) captures his main ideas around morality being the same as the law. In other words our actions are governed by the law and not our conscience. This very notion is depicted in his version of the ‘state of nature’ where no laws exist. Life in the ‘state of nature’ in Hobbes words is “solitary, poor, nasty, brutish and short’ and also that man is in continual fear, and in danger of a violent death .” Once we begin to examine life without rules and regulations we can really begin to question and reflect on our own morality. It could be argued that even if we did want to take the moral high ground in the state of nature we could still be forced into a corner by others who are reckless, making you as selfish as the next man. This would suggest that Hobbes supports the egoist theory, which adopts the view point that people are self motivated and only act for there own self interests. Both of these descriptions are how Hobbes describes people in the state of nature’.
Hobbes' description of the state of nature is one that is barbaric and undesirable but in reality it is the place where people live outside of the bounds imposed by the social contract.  The following from Kevin J. Browne: (http://www2.econ.iastate.edu/classes/econ362/hallam/Readings/SocialContractHelium.pdf
"Hobbes theory was challenged by John Locke who felt that our morality is not based on law and government, or the social contract. In fact Locke envisaged that the state of nature’ would be a much more inhabitable place. His reason for this is that we have natural laws which are also referred to as god-given laws. Locke recognises that there would still be the need for some sort of governing body, but in contrast to Hobbes theory, individuals are morally equal and would personally be able to enforce punishments for bad behaviour. One criticism here would be that individuals could have the tendency to be biased. Another obvious criticism is that Locke’s state of nature’ is dependent on a lot of religious connotations. However, you have to take in to consideration that it was written in a period when this would be a lot more relevant."

Private Life is Non-Political
FROM THE BOOK "Domestic Violence and the Politics of Privacy", Kristin Kelly, Cornell University Press, 2003:
In what was certainly a radical notion for his time, Locke indicates that as long as procreation and the rearing of children are secured, a man and a woman should be free to organize their association through contracts of their own making (II, 83). This echoes the position that he develops on the importance of individual autonomy in matters of conscience in A Third Letter for Toleration.  There he forcefully argues for the preservation of a realm where individuals are free to organize their affairs according to their own rational assessment of what is best for them:"
In private domestic affairs, in the management of estates, in the conservation of bodily health, every man may consider what suits his own conveniency, and follow what course he likes best...Let any man pull down, or build, or make whatsoever expense he please, nobody murmurs, nobody controles him; he has his liberty"Third, Locke's depiction of the domestic sphere as nonpolitical bolsters the separation between the individual and the state by providing men with a mechanism for transferring and exchanging their property that does not necessitate government intervention. Although Locke argues that men agreed to leave the state of nature so they could set up a central power, "for the Regulating and Preserving of Property" (II, 3), he nevertheless insists that this in no way implies governmental authority either to take a man's property or to tell him what to do with it. Such prerogatives would defeat the very end for which the government is formed: "For a man's property is not at secure, though there be good and equitable Laws to set the bounds of it, between him and his fellow subjects, if he commands those subjects have power to take from any private man, what part he pleases of his property, and use and dispose of it as he thinks good" (II, 139). The importance of the nonpolitcal domestic sphere to the preservation of the individuals right to "use and dispose" of his property "as he thinks good" arises primarily from the family's role in providing a natural mechanism for inheritance. In his discussion of paternal power, Locke states that as long as a father fulfills his familial obligations, he may dispose of his own Possessions as he pleases..." (II, 65).  The right of a man to dispose of his own property before and after his death ensures that he will not be subjected to a situation where the state controls that which by natural right is his (II, 138).

Who Decides Right and Wrong?
Kristin Kelly continues:
"Locke and Domestic Violence
Locke's discussion of the state of nature draws a picture of human relations that is paradoxically both peaceful and conflictual. As we have seen, his recognition of the inevitability of conflict between individuals led him (pg. 24) to suggest that despite "all the privileges of the state of nature" (II, 127), humans would rationally seek to relinquish their God-given powers to interpret the laws of nature to a government that would then be empowered through their concern to resolve disputes between individuals. As a result, Locke states:"The community comes to be Umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society, concerning any matter of right, and punishes those offences, which any member hath committed against the society, with such penalties as the Law has established. (II, 87)"
However, it is important to note that Locke limits the government's role as "umpire" to resolving disputes between individuals who are in "Political Society together." As discussed previously, Locke went to great lengths to demonstrate that domestic relations are not political in nature. Furthermore, as we have seen, Locke's efforts to preserve a space where individuals pursue their own interests free of government control depend heavily on the preservation of the family as nonpolitical, and therefore private realm.

Regan's Room is The State of Nature
So I submit that every person and family unit that maintains a private life, resides in the state of nature.  Normally it is not one that is "nasty and brutal" but is a place where natural law dominates behaviors apart from the restrictive freedoms in the outside, socio-political world. But for some, it is a nasty and shocking place, very similar to the imagery painted by Hobbes.  It is this world in which the victims of domestic violence live, and it is the laws of nature which frame their morality.


Monday, January 2, 2012

PF 2012 February Topic Analysis

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February 2012 Public Forum Topic
Resolved: Birthright citizenship should be abolished in the United States.

Introduction
The February topic will crash into the controversial topic of illegal immigration.  I think, unless one lives in a border state, it is not one of the leading issues on Americans' minds considering the state of the economy, the jobs situation, the national debt, Congressional grid-lock, etc.  But only a few years ago, prior to the economic collapse, immigration, particularly, illegal immigration, was a hot-button topic all across the nation.  This resolution deals with the provisions in U.S. constitutional law which grants citizenship to any person born on U.S. soil, including the U.S. proper, territories and embassy grounds. Of course, the controversy arises when children are born of individuals whom themselves are not citizens. So get ready to take the 14th Amendment to task.


Birthright Provision
Birthright citizenship is granted under the provisions of the 14th amendment of the Constitution which provides the protections for all things "citizen" in the United States. Among other things, it provides the basis under which citizenship is granted or taken away. It was adopted in 1868 and the historical context is significant.  This was the Reconstruction period when the country was recovering from civil war and freed slaves, previously denied citizenship status were being integrated under the provisions of the amendment.  In particular, the "birthright" clause basically established the right of citizenship to all former slaves born in the United States.  In addition, Native Americans in the west were being rounded up and forced to live on reservations, also denied important protections of due process afforded citizens.  At the time this amendment was ratified, Oklahoma was not a state, rather known as the Oklahoma Territories and the home of many Native American groups. Under this backdrop, legislators needed to legitimize the citizenship of former slaves denied under the rulings of the Dred Scott case in 1857. The clause which establishes the debate for the February PF resolution states:
Section 1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Issues
Like so many things that were well intended, many now believe birthright citizenship is harming the United States in several key areas.  Basically the argument claims that illegal immigrants are coming to the United States, giving birth to children who subsequently are deemed citizens under Section 1 of the 14th Amendment and as such are entitled to all rights and protections afforded any U.S. citizen.  I think it is important for the debater to put aside any undue biases about the illegal immigrant and dispel the notion these individuals are exclusively, Mexican or Central American people who sneak across the southern border under cover of darkness or in the back of covered trucks.  In fact, this provision very often applies to foreign nationals who are in the United States legally under tourist or work Visas.  For example, a German engineer working in the U.S. for an extended period of time with his wife.  Neither individual is a U.S. citizen, but if they should have a child born here while they are in residence, that child would be considered a U.S. citizen and more than likely would enjoy the benefits of dual-citizenship, of both Germany and the United States. Now, this scenario may not rouse the attention or ire of many people even though it happens often.  The reason for the lack of concern is likely because these people are in the country legally having passed through the border under passport and Immigration Dept. control.  So what about those who do enter the country outside of the control of the U.S. Immigration Dept and who may be living and working here without approval of the U.S. government?  Under the provisions of Section 1 of the 14th Amendment, if their child is born here, the child is granted citizenship. And so it is, this debate resolution provides clash.  Many see the issues revolving around the wording of the Amendment, in particular the phrase "subject to the jurisdiction".  The claim will be made by those in favor of repeal these children are being given, health-care, education and other benefits of citizens and they are dubbed "anchor children" because their status often makes it much more difficult to deport their illegal parents and perhaps some will claim, these children and their parents are not under the jurisdiction of any state.

The Sweeping Resolution and Pro's Burden
Resolved: Birthright citizenship should be abolished; not amended, revised, limited nor reviewed.  This seems to be Pro burden and one I hope can be defended.  Certainly the wording of the resolution leaves little wiggle-room for a moderated or provisional point of view. Either we allow birthright citizenship or we do not. It's all or nothing.  So it would seem one clear tactic for Pro will be a comparative advantage approach to the case.  There are advantages to birthright citizenship and there are harms. If the harms outweigh the advantages then the case for abolishing is upheld, assuming the judge is convinced.  If this is indeed the Pro burden, it is pointless for Pro to build any case around the "subject to jurisdiction" provision.  More on this later.

Over the next few weeks, I will examine this topic in much more detail with a series of postings.  For now, I would suggest a look at the following:

Supreme Court Cases:

1898 United States v. Wong Kim Ark
1884 Elk v. Wilkins

Papers:
Second Class Delivery: The Elimination of Birthright Citizenship As a Repeal of "the pursuit of Happiness", S.C. Barnhart, GEORGIA LAW REVIEW, 42, no. 2, (2008): 525-568

Addressing the call for the elimination of birthright citizenship in the United States: constitutional and pragmatic reasons to keep birthright citizenship intact, Katherine Pettit, Tulane Journal of International and Comparative Law, v15 (n1) (Winter 2006): 265-289

Birthright citizenship and the Fourteenth Amendment in 1868 and 2008.(Symposium: The Second Founding), Rogers M Smith, University of Pennsylvania Journal of Constitutional Law, v11 (n5) (July 2009): 1329-1335

Birthright Citizenship and the Civic Minimum, W T Mayton, Georgetown immigration law journal. 22, no. 2, (2008): 221-258

Articles:
"End Birthright Citizenship", Virgil Goode, Human Events, 7/19/2010, Vol. 66 Issue 25, p18

"Sen. Mitch McConnell defends hearings on birthright citizenship", Dave Cook, August 5, 2010, The Christian Science Monitor

"14th Amendment: why birthright citizenship change 'can't be done'; 
A new amendment to address citizenship issues would be tough in today's polarized environment. Some say that legislation related to the 14th Amendment is the answer, but that would be hard, too.", Peter Grier, August 10, 2010, The Christian Science Monitor

"Baby Baiting The war against birthright citizenship.", Robin Templeton, The nation. 291, no. 7, (2010): 20

"Happy New Year"!