[eDebate] defending the first amendment vs national security wording
Pacedebate at aol.com
Fri Jun 2 01:31:50 CDT 2006
also posted on the blog...
This should have been clear from my post on ?overrule? but just to be clear
I?m done advocating for the supplemental resolutions I created in response
to the TC feedback. When I did that I got away from the solvency advocates I
had found and the original intent of my topic. Here is the wording I defended
in my original paper and that I?m defending now:
Resolved: that the United States Supreme Court should rule an act or acts of
the executive branch unconstitutional, specifically holding that the first
amendment should take precedence over national security concerns.
Most of the concerns I?ve seen so far really apply to the supplemental
resolutions I?d created but I?ll mention all the ones I can remember from what I
saw on the webcast and from the notes that Brad posted. I wanted to start with
Toward the end of the meeting someone argued that this topic would become
all about the first amendment. In Brad?s notes this was listed as ?the topic
might be shifted too much to a theoretical question about the first amendment.?
I?m not exactly sure what this means but um, yeah. Exactly. The aff better
come prepared to defend why the Supreme Court needs to set a precedent on the
first amendment. If you think that makes for a bad topic then you should
definitely argue against this resolution. ?Generic? strategy number one for the
negative should be a grounds counterplan. Rule on different grounds. To me
that is at the heart of what Courts debates should be all about.
Grounds Counterplans are TOO good
Here, they have me feeling like the folks who worked on the other first
amendment topic. First, it?s too aff biased, now it?s too neg biased?.ah now I
know what it feels like to be on the topic committee J
The FOIA aff is my core example of an aff that would really work on this
topic. It has really good evidence to answer the agent counterplan and is a core
first amendment issue that can be used as offense against the equal
It is all about precedent. The aff needs to come into debates ready to
defend setting a strong precedent for the first amendment.
The precedent matters - Supreme Court precedents cross over administrative
Harvey ?96 (James, 37 Wm and Mary L. Rev. 1569, twm)
When issues cross agency lines, DOJ properly should determine consistent
government policy. n227 For example, issues concerning administrative
procedure, civil procedure, the Freedom of Information Act, n228 or equal protection
implicate the way that government acts as a whole. n229 Adverse precedents in
these areas hurt government entities other than just the litigating agency.
The risks, therefore, demand DOJ involvement in these areas. Officers like the
solicitor general, for example, have a mandate to look after the interests
of all of government.
The FOIA case is all about the first amendment and a strategic aff will
write a narrow plan and argue that an FOIA precedent putting the first amendment
above national security will be used in other areas.
plan: the USSC should rule that secrecy in immigration hearings is
unconstitutional on the grounds that it violates the first amendment.
cplan: the USSC should rule that secrecy in immigration hearings is
unconstitutional on the grounds that it violates equal protection.
There are a plethora of aff add on's based around right of access of the
Papandrea, Assistant Prof. of Law Boston College, ?05 (Mary-Rose, 25 B.C.
Third World L.J. 35, p 38, twm)
History has demonstrated that without an enforceable right to know about
government activities, the executive branch is likely to reveal only the
information that serves its purposes, whatever they may be. This Article suggests
that the courts must keep in mind the interest in effective self-government
that drove FOIA's passage in 1966 and the recognition of the First Amendment
right of access in 1980. The right to know is more, not less, important in a
time of crisis, and it is no less important when the rights of noncitizens are
at issue. Indeed, history amply demonstrates that it is during times of
crisis that the government is more likely to engage in questionable behavior and
employ secrecy to conceal its failures.
The negative might try to start writing a broader counterplan i.e. the USSC
will rule that secret activities violate equal protection but if they do that
then what is their net benefit going to be - certainly not one of the bad
court DA's since those probably link more which means they have to have a first
amendment precedents bad DA. There are a couple of those floating around but
they aren't particularly unique and there are just as many mediocre equal
protection DA's the aff could use as offense.
There are also some bad court DA's that link to misuse of precedent. I get
that "the court doesn't work that way" doesn't get the aff anywhere if the cp
solves all the aff but usually the net benefit will be pretty small and a DA
that says Roberts promised he would stick with precedent and this case
clearly is a bizarre ruling for the SC can offset the "any risk of the da" args
from the neg.
Steve pointed out that Hamdi may have eroded Goldman. This was directly
responsive to the resolution where I specified this decision and so I don?t think
it really applies to my original wording but just in case?
Hamdi was a very narrow decision merely about whether the U.S. courts even
had jurisdiction over these issues. It is a minor point in the over all
dispute about presidential powers not particularly relevant to the overall question
of deference and it isn?t in any way relevant to Supreme Court deference to
the military on first amendment issues.
Wilson ?06 (Elizabeth, 8 U. Pa. J. Const. L. 165, twm)
In June of 2004, shortly after the Abu Ghraib prison crisis, the Supreme
Court held that the district courts of the United States had jurisdiction to
hear habeas petitions filed by alien detainees being held in Guantanamo Bay,
Cuba challenging the legality of their detentions. Rasul v. Bush, n1 and its
companion cases Hamdi v. Rumsfeld n2 and Rumsfeld v. Padilla, n3 addressed the
fate of more than 600 detainees being held in what has been called a legal
"black hole," as the Government asserted that neither the U.S. Constitution
nor the Geneva Conventions applied to alleged members of Al Qaeda that were
apprehended during the war on terrorism. n4 Although these decisions [*166]
were hailed as a victory for the American legal system and the rule of law,
they have not led to the swift demise of the Government's post-9/11 experiment
in Guantanamo Bay: its creation of an unregulated offshore penal colony. With
the cases on remand to the lower courts, the Government re-filed its motion
to dismiss, obstructed counsel's initial attempts to communicate with their
clients, and in essence acted as if the Supreme Court had not addressed the
issue. As of this writing, not a single detainee has been released as a result
of judicial review. A key issue on remand has been whether the detainees
possess substantive constitutional rights that have been violated by their
detention. The Government apparently chose Guantanamo Bay as an indefinite detention
center for alleged "enemy combatants" in the belief that the writ of habeas
corpus would not be available to aliens detained there. n5 In deciding that
federal courts indeed have habeas jurisdiction, as conferred by statute, to
decide the lawfulness of detainees' custody, Rasul remanded the cases for
further proceedings on the merits but only implicitly addressed the question of
detainees' constitutional status. The Rasul (now Al Odah) n6 remand litigation
has focused in large measure on the question of whether the U.S. Constitution
applies to protect aliens detained in military custody outside of U.S.
sovereign territory. In so doing, this litigation has confronted the more general
question of the Constitution's extraterritorial scope.
The Government's position has been a simple one: the Constitution does not
reach aliens detained outside of the United States. According to the
Government, Rasul decided the question of jurisdiction only and did not address the
question of whether detainees have any substantive rights that may be
vindicated; and because petitioners are outside of U.S. territorial sovereignty, they
are, as aliens without significant voluntary connections with the United
States, without constitutional rights. Based on Johnson v. Eisentrager n7 and
United States v. Verdugo-Urquidez, n8 two key Supreme Court precedents that
seemingly foreclose the application of the Constitution to aliens abroad, the
Government argues that the petitions must be dismissed, or judgment as a matter
of law must be granted in the Government's favor. n9
And, Hamdi won?t hurt the negs national security DA?s I identified as core
neg ground in the wording paper.
Jackson, Prof. of Law Georgetown ?06 (Vicki, 91 Cornell L. Rev. 303, twm)
Hamdi also, in important respects, sanctioned an expansion of presidential
power, upholding the President's authority to classify U.S. citizens as enemy
combatants and to detain them for extended periods in order to prevent their
return to the battlefield, pursuant to a congressional resolution authorizing
"necessary and appropriate force" against "nations, organizations, or
persons" responsible for the terrorist attacks of September 11, 2001 on the United
High School topic
The cards above are a nice segue way into this issue?just because the cards
above are about presidential powers don?t be fooled into thinking this topic
will be a rehash of the high school topic. I?m just responding to the point
Steve made about Hamdi?s impact on the wording. Is there some overlap with the
high school topic? Sure, but it?s not substantial and the ways in which it
will overlap aren?t unique to this topic. Did the high school community roll
out the executive order and congress counterplans with politics net benefits?
Of course, but that is going to happen on almost all of the overrule topics
and if the First Amendment argument above is correct then my wording will
force debaters into the grounds issues which was a drop in the bucket of the high
Basically, he said the Supreme Court is too narrow. I don?t think he will
find too much support among the TC for this opinion and I just think the aff
has to work to win that the SC is key. The precedent stuff above is one
potential response to this as are the executive order/congress cp stuff I posted
Supreme Court action is key.
Anderson ?04 (David, 69 Brooklyn L. Rev. 755, twm)
The third reason for doubting the wisdom of excluding common law courts from
the resolution of speech-tort conflicts has to do with institutional
competence. The Supreme Court's expertise and sensitivity in matters of free speech
is unquestionable. If there is a specialized court for free speech anywhere
in the world, the Supreme Court is it. It sees and decides every type of First
Amendment case, from picketing n267 and symbolic speech n268 to
pornography n269 and national security. n270 It is the engine that has driven the
development of the remarkable system of freedom of expression in the United
War on Terror lost the area balloting
I thought Gordon was pretty persuasive on this issue. People had a chance to
vote for war on terror and they didn?t. I think Kathryn (sorry if I got the
name wrong my picture and sound was pretty fuzzy at times) also made the
point that her region voted against that topic because they didn?t want a rehash
of the high school topic. The war on terror DA is clearly a negative argument
on this topic and that debate will happen if the neg wants it to. There are
a couple of aff?s that can probably sidestep that debate and the links will
be different but it?s the biggest area of overlap with the high school debate.
However, there is a big difference between having a topic that requires the
aff to address the war on terror (which is what the area vote was about) and
people opposing that the terrorism issue be debated at all. If I?m wrong and
the East was voting against terrorism being relevant to the topic then they
will vote en masse against this wording but I really don?t think that?s what
people were voting against.
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