[eDebate] Response to Galloway

scottelliott at grandecom.net scottelliott
Mon Jun 12 12:17:02 CDT 2006


When I use the term "Galloway," I mean no disrespect. I just don't know Mr.
Galloway to call him Ryan.

I stand by my previous posts. But do note the following from Galloway:

"And, overruling is like the decision never existed, it is the equivalent of a
repealed statute: "Overruling is an act of superior jurisdiction. A precedent
overruled is definitely and formally deprived of ALL AUTHORITY. It becomes null
and void, LIKE A REPEALED STATUTE, and a new principle is authoritatively
substituted for the old" (BLD, 2004, 1137). "

Guess. What. I agree with this statement. never have disagreed. But, go back and
re-read the statement: "A PRECEDENT OVERRULED IS DEFINATELY AND FORMALLY
DEPRIVED OF ALL AUTHORITY."

Again, this only proves my point. Galloway attempts to say at the top of his
post that overruling means you have to overrule the entire case. This analysis,
from Black's law,  shows that there is a lot of equivocation going on at best,
and mis-tagging the card at worst. The card says what it says, that overruling
means overruling a precedent.

Next, as I have previously demonstrated, one can change the outcome of a
judgment (1) without overturning every precedent within the overall court
"decision," meaning that you don't get your link to your "killer" disad or
K;(2) can change the outcome by overturning a precedent that was totally
unanticipated (i.e. change the standard for legal standing in Gratz v.
Bollinger, this would allow the second plaintiff to win and (3) can overturn
the precedent, but claim totally unanticipated advantages (e.g. overturn strict
scrutiny, claim prison riot prevention as your advantage.

Next, Galloway suggests, which I think is extremely telling, that an Affirmative
does not actually have to say "overturn" in the plan text. In other words, an
Affirmative can some how skirt around their burdens, to play a shim-sham game
with the negative to avoid the inevitable counter-plans. He then notes, or
rather admits, that this is going to create a large number of topicality
debates, and that is good. Ok. If a whole year of T debates is what you want,
then you have certainly gotten what you have asked for. Given the all or
nothing nature of the topic, as interpeted, i agree that there will be a great
number of T debates. let's face it, if the Affirmative wins the "T" debate that
"overrule" and "decision" means they only have to overturn a precedent within
the overal "decision,"--which is what Black's Law says that means BTW--then the
Affirmaitive gets a huge ground advantage and undermines the negative's ability
to counter-plan. Why? Because the Aff can overturn a precedent through
overturning the case or distinguishing the precedent, or a number of ways such
as saying they no longer recognize Plessy (for example) on all forgoing cases.
(Which by the way proves that you DO NOT have to overturn a judgment in order
to overturn a decision). If the Negative wins its interpretation, then the
affirmative is locked into overturning the entirety of the decision. This opens
the Affirmative up to the PIC of overtrun this Precedent, but still maintain
THAT precedent. Or, they are openned up  to the "distinguish"  c-plan. I, in my
limited capacity, cannot possibly concieve of a solvency author that would write
cards saying: "Gratz, in its entirity, must be overruled in order to solve X
harm. I would like to see one solvency author on each case listed that is so
specific. Rather, the solvency author is going to say that the precedents in X
case are bad. Negative c-plan can agree with the solvency advocate, but
demonstrate how distinguishment is a superior alternative than out and out
overturn.  Thus, many of the debates will come down to an all or nothing ground
debate, known as topicality.

My personal standard for topicality on these battling interpretations has been
"Would Brown v. Board of Education be topical?" If, and I have read some of the
papers on this, under your interpretation, Brown did not overrule Plessy v.
Ferguson, then YOUR INTERPRETATION is an artificial construction that has no
basis in reality or jurisprudence. It the most basic example of a case being
overturned does not meet your standard, then your standard has the problem, not
the case.  So how does that play out?

Well, Brown would be topical under the affirmaitve interpretation that
overturn/overrule means to make a precedent within a case null--having no
binding authority. That, by the way, is also consistent with Galloway's
citation to Black's Law Dictionary. the impliaction of that, of course, is that
affirmatives get to pick and choose which precedents to overturn. Also, there is
no requirement that the actual judgment in Plessy be overturned. Yes, as a
counter-factual, applying the new precedent, the judgment would be different.
But, no new judgment in that historical case would have to occur. I mean,
Mancuso gives the best example of why the alternative--actually requiring a
reversal of the judgment is absurd. Notable, in Gregg v. georgia, there ain't
no court in the U.S. or on this Earth that can bring back Mr. Gregg. Cuz, he be
dead.

Under the negatively biased interpretation--that the Affirmative must overturn
the entire decision, all parts, Brown v. Board of Education is not topical.
Why? because the court said that only thos eportions of Plessy that are in
conflict with its opinion of "seperate is no longer equal" are no longer
recognized as precedent. (Go back and read Brown). They did not overturn all of
Plessy, just a particualr precedent.


Galloway also quotes:

Michael Gottlieb, a two time NDT champion, and a two time top speaker at the
NDT, from WilmerHale in Washington DC:


"I did not mean to suggest that using the phrase "overrule decision" in the
topic would present a fatal flaw. What I meant to say (and indeed, what I think
I said) was that the words are ambiguous and can be interpreted in a number of
different ways...I don't see that as a fatal problem with the resolution, it
just means that it's perhaps bigger than it might seem on first glance, and
that people really need to consider whether that's a good or a bad thing on its
merits."


To this I say--i agree. That's all i have been saying from the beginning. That
these case areas are much bigger than you thought. Gottlieb is correct that
whether you want topics this big are value judgments. You the voters have to
decide whether you want a "pig in a poke" list topic, or an area topic that
provides a little more fair warning about the issues to be debated. Like I said
in response to Slusher, if I were a big school with 20 debates and 200 tubs, I'd
love the list topics. If, however, I were a small school or a coach of novices,
I would not like it. Just so you all know, my personal bias is toward
protecting small schools and novice programs.


I will not go back and defend each one of the topics i drafted in about forty
minutes. but I will note a couple:

Galloway says:

"U.S. v. Morrison, 529 U.S. 598 (2000) to the extent that it holds
Gender-motivated crimes of violence are not economic activity;"  Writes out all
the debate around whether or not Section 5 of the 14th Amendment (equal
protection) allows for the VAWA. Plus, the Court held that gender-motivated
crimes weren't SUBSTANTIALLY RELATED to interstate commerce: which is what the
overrule would need to argue--merely acknowledging they are economic activity
would not inherently meet the substantially related test in Lopez.

All I can say is that I took the "Gender-motivated crimes of violence are not
economic activity" directly from the "holdings" of U.S. v. Morrison. Galloway
acts as if I just made these resolutions up? Each one came directly from either
the holdings or the headnotes of each case listed. So, if you think that "suck,"
you are saying that the cases you chose suck too.

Additionally, Galloway gives what i wanted from the start, an enuciation of what
he thinks the central holding in that case was. That being said, a "perm" can
easily be made--:

U.S. v. Morrison to the extent that it holds gender-motivated crimes are not
substantially related to interstate commerce.

See, it can be done. Galloway gets what he wants--to have debates about VAWA and
Lopez, and I get what I want, students going in having a clue about the subject
of the debate.

In fact, Galloway's pointing out my "flaws" demonstrates what I have been asking
for, that the people who drafted these damn topics, tell me what the actual
subject of the debates is, rather than just serving up these cases, tabula
rasa, like a rohrsack ink blot, expecting us to figure out the topic.

I would like to see how Galloway responds to the permutation. because, i think
the perm on Morrison provides a much better alternative to the "overturn the
decision in Morrison" version that the list topics are currently framed.

Galloway says:
"Ex parte Quirin, 317 U.S. 1 (1942), to the extent that it holds one who takes
up arms against the United States in a foreign theater of war, regardless of
his citizenship, may properly be designated an enemy combatant and treated as
such;"

Uses gendered language. We get into a debate about what "take up arms means"
what a "foreign theater of war" is, and what "treated as such" means. Overrule
is looking downright like solid law now. The fact that there are so many
disagreements mean we could never "deliberate" over all these questions at a
distance."

Well, first I think the topic committe can shange the "his," to "their"--that
is, unless, there is a hidden phallus in the word "their" too. LOL. It is a
nice, non-sequiter--but it is also "turned." Why? because, again, i was quoting
almost verbatim, from the S. Ct. text. Thus, a creative affirmative can overturn
Quirin to the extent it uses genered language. LOL.

How is overturn "downright solid" because all of the different points of
language-foreign theater of war", etc. are all within the Quirin decision. So,
those are going to be debated anyway. However, with Galloway's version, you get
not only debates of the meaning of "foreign theater of war," but also genered
language, whether the court has the power of judical review, and about sixty or
seventy other underlying principles/precedents of judicial decisionmaking. I
would rather go into a debate knowing that I am debating what take of arms and
foriegn theater means, rather than having to guess whcih of 20 precedents in
Quirin that the affirmative will choose to voerturn, and hope I can win a PIC.

I told Tim that my examples, were just that, examples, models.

The best example i can give is Planned Parenthood v. Casey.  When i read it, by
itself, I saw 20 plus holdings. They are flat out contridictions: I will quote
from the opinion itself. And, it should be noted, oh joy, that the case by
itself is 110 PAGES LONG!!!:

"It must be stated at the outset and with clarity that HN1Roe's essential
holding, the holding we reaffirm, has three parts. First is a recognition of
the right of the woman to choose to have an abortion before viability and to
obtain it without undue interference from the State. Before viability, the
State's interests are not strong enough to support a prohibition of abortion or
the imposition of a substantial obstacle to the woman's effective right to elect
the procedure. Second is a confirmation of the State's power to restrict
abortions after fetal viability, if the law contains exceptions for pregnancies
which endanger the woman's life or health. And third is the principle that the
State has legitimate interests from the outset of the pregnancy in protecting
the health of the woman and the life of the fetus that may become a child.
These principles do not contradict one another; and we adhere to each."



(The third point is easily the most laughable quote in the the history of the
supreme court (and there are some doozies!))

"Constitutional protection of the woman's decision to terminate her pregnancy
derives from the Due Process Clause of the Fourteenth Amendment. It declares
that no State shall "deprive any person of life, liberty, or property, without
due process of law." The controlling word in the cases before us is "liberty."
"

"It is conventional constitutional doctrine that where reasonable people
disagree the government can adopt one position or the other. See, e. g.,
Ferguson v. Skrupa, 372 U.S. 726, 10 L. Ed. 2d 93, 83 S. Ct. 1028 (1963); 
[**2807]  Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 99 L. Ed.
563, 75 S. Ct. 461 (1955). That theorem, however, assumes a state of affairs in
which the choice does not intrude upon a protected liberty. Thus, while some
people might disagree about whether or not the flag should be saluted, or
disagree about the proposition that it may not be defiled, we have ruled that a
State may not compel or enforce one view or the other. See West Virginia Bd. of
Ed. v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943); Texas v.
Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989)."


"Our law affords constitutional protection to personal decisions relating to
marriage, procreation, contraception, family relationships, child rearing, and
education. Carey v. Population Services International, 431 U.S. at 685. Our
cases recognize "the right of the individual, married or single, to be free
from unwarranted governmental intrusion into matters so fundamentally affecting
a person as the decision whether to bear or beget a child." Eisenstadt v. Baird,
supra, at 453 (emphasis in original). Our precedents "have respected the private
realm of family life which the state cannot enter." Prince v. Massachusetts, 321
U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct. 438 (1944). These matters, involving the
most intimate and personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy, are central to the liberty protected
by the Fourteenth Amendment. At the heart of liberty is the right to define
one's own concept of existence, of meaning, of the universe, and of the mystery
of human life. Beliefs about these matters could not define the attributes of
personhood were they formed under compulsion of the State."


"Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our
holding that the Constitution protects a woman's right to terminate her
pregnancy in its early stages, Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93
S. Ct. 705 (1973), that definition of liberty is still questioned. Joining the
respondents as amicus curiae, the United States, as it has done in five other
cases in the last decade, again asks us to overrule Roe. See Brief for
Respondents 104-117; Brief for United States as Amicus Curiae 8."

(I love this one)

"The obligation to follow precedent begins with necessity, and a contrary
necessity marks its outer limit. With Cardozo, we recognize that no judicial
system could do society's work if it eyed each issue  [***700]  afresh in every
case that raised it. See B. Cardozo, The Nature of the Judicial Process 149
(1921). Indeed, the very concept of the rule of law underlying our own
Constitution requires such continuity over time that a respect for precedent
is, by definition, indispensable. See Powell, Stare Decisis and Judicial
Restraint, 1991 Journal of Supreme Court History 13, 16. At the other extreme,
a different necessity would make itself felt if a prior judicial ruling should
come to be seen so clearly as error that its enforcement was for that very
reason doomed.

HN11Even when the decision to overrule a prior case is not, as in the rare,
latter instance, virtually foreordained, it is common wisdom that the rule of
stare decisis is not an "inexorable command," and certainly it is not such in
every constitutional case, see Burnet v. Coronado Oil & Gas Co., 285 U.S. 393,
405-411, 76 L. Ed. 815, 52 S. Ct. 443 (1932) (Brandeis, J., dissenting). See
also Payne v. Tennessee, 501 U.S. 808, 842, 115 L. Ed. 2d 720, 111 S. Ct. 2597
(1991) (SOUTER, J., joined by KENNEDY, J., concurring); Arizona v. Rumsey, 467
U.S. 203, 212, 81 L. Ed. 2d 164, 104 S. Ct. 2305 (1984). Rather, when this
Court reexamines a prior holding, its judgment is customarily informed by a
series of prudential and pragmatic considerations designed to test the
consistency of overruling a prior decision with the ideal of the rule of law,
and to gauge the respective costs of reaffirming and overruling a prior case.
Thus, for example, we may ask whether the rule has proven to be intolerable
simply in defying practical workability, Swift & Co. v. Wickham, 382 U.S. 111,
116, 15 L. Ed. 2d 194, 86 S. Ct. 258 (1965); whether the rule is subject to a
kind of reliance that would lend a special hardship to the consequences of
overruling and add inequity to the cost of repudiation, e. g., United States v.
Title Ins. & Trust  [*855]  Co., 265 U.S. 472, 486 (1924); whether related
principles of law have so far developed as to have left the old rule no more
than a remnant of abandoned doctrine, see Patterson v. McLean Credit Union, 491
U.S. 164, 173-174, 105 L. Ed. 2d 132,  [**2809]  109 S. Ct. 2363 (1989); or
whether facts have so changed, or come to be seen so differently, as to have
robbed the old rule of significant application or justification, e. g., Burnet,
supra, at 412 (Brandeis, J., dissenting)."


"It will be recognized, of course, that Roe stands at an intersection of two
lines of decisions, but in whichever doctrinal category one reads the case, the
result for present purposes will be the same. The Roe Court itself placed its
holding in the succession of cases most prominently  [***702]  exemplified by
Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965).
See Roe, 410 U.S. at 152-153. When it is so seen, Roe is clearly in no jeopardy,
since subsequent constitutional developments have neither disturbed, nor do they
threaten to diminish, the scope of recognized protection accorded to the liberty
relating to intimate relationships, the family, and decisions about whether or
not to beget or bear a child. See, e. g., Carey v. Population Services
International, 431 U.S. 678, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977); Moore v.
East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977)."

(So now I get to run malthus on the aff., opop, eugenics etc., great) Surely,
Scott you are now crazy! There is no way you get to Opop and eugenics from
Casey, so it ain't so! Sorry: Justice O'Connor gave me the clearest link, even
Galloway would have to concede it:

"The soundness of this prong of the Roe analysis is apparent from a
consideration of the alternative. If indeed the woman's interest in deciding
whether to bear and beget a child had not been recognized as in Roe, the State
might as readily restrict a woman's right to choose to carry a pregnancy to
term as to terminate it, to further asserted state interests in population
control, or eugenics, for example. Yet Roe has been sensibly relied upon to
counter any such suggestions. E. g., Arnold v. Board of Education of Escambia
County, Ala., 880 F.2d 305, 311 (CA11 1989) (relying upon Roe and concluding
that government officials violate the Constitution by coercing a minor to have
an abortion); Avery v. County of Burke, 660 F.2d 111, 115 (CA4 1981) (county
agency inducing teenage girl to undergo unwanted sterilization on the basis of
misrepresentation that she had sickle cell trait); see also In re Quinlan, 70
N.J. 10, 355 A.2d 647 (relying on Roe in finding a right to terminate medical
treatment), cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 50 L. Ed.
2d 289, 97 S. Ct. 319 (1976)). In any event, because Roe's scope is confined by
the fact of its concern with postconception potential life, a concern otherwise
likely to be implicated only by some forms of contraception protected
independently under Griswold and later cases, any error in Roe is unlikely to
have serious ramifications in future cases."



'Because the cases before us present no such occasion it could be seen as no
such response. Because neither the factual underpinnings of Roe's central
holding nor our understanding of it has changed (and because no other
indication of weakened precedent has been shown), the Court could not pretend
to be reexamining the prior law with any justification beyond a present
doctrinal disposition to come out differently from the  [**2814]  Court of
1973. To overrule prior law for no other reason than that would run counter to
the view repeated in our cases, that HN15a decision to overrule should rest on
some special reason over and above the belief that a prior case was wrongly
decided. See, e. g., Mitchell v. W. T. Grant Co., 416 U.S. 600, 636, 40 L. Ed.
2d 406, 94 S. Ct. 1895 (1974) (Stewart, J., dissenting) ("A basic change in the
law upon a ground no firmer than a change in our membership invites the popular
misconception that this institution is little different from the two political
branches of the Government. No misconception could do more lasting injury to
this Court and to the system of law which it is our abiding mission to serve");
Mapp v. Ohio, 367 U.S. 643, 677, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961)
(Harlan, J., dissenting)."


By the way, this is just a good negative card, regardless of which topic is
chosen:

The country's loss of confidence in the Judiciary would be underscored by an
equally certain and equally reasonable condemnation for another failing in
overruling unnecessarily and under pressure. Some cost will be paid by anyone
who approves or implements a constitutional decision where it is unpopular, or
who refuses to work to undermine the decision or to force its reversal. The
price may be criticism or ostracism, or it may be violence. An extra price will
be paid by those who themselves disapprove of the decision's results  [*868] 
when viewed outside of constitutional  [***709]  terms, but who nevertheless
struggle to accept it, because they respect the rule of law. To all those who
will be so tested by following, the Court implicitly undertakes to remain
steadfast, lest in the end a price be paid for nothing. The promise of
constancy, once given, binds its maker for as long as the power to stand by the
decision survives and the understanding of the issue has not changed so
fundamentally as to render the commitment obsolete. From the obligation of this
promise this Court cannot and should not assume any exemption when duty requires
it to decide a case in conformance  [**2816]  with the Constitution. A willing
breach of it would be nothing less than a breach of faith, and no Court that
broke its faith with the people could sensibly expect credit for principle in
the decision by which it did that.


It is true that diminished legitimacy may be restored, but only slowly. Unlike
the political branches, a Court thus weakened could not seek to regain its
position with a new mandate from the voters, and even if the Court could
somehow go to the polls, the loss of its principled character could not be
retrieved by the casting of so many votes. Like the character of an individual,
the legitimacy of the Court must be earned over time. So, indeed, must be the
character of a Nation of people who aspire to live according to the rule of
law. Their belief in themselves as such a people is not readily separable from
their understanding of the Court invested with the authority to decide their
constitutional cases and speak before all others for their constitutional
ideals. If the Court's legitimacy should be undermined, then, so would the
country be in its very ability to see itself through its constitutional ideals.
The Court's concern with legitimacy is not for the sake of the Court, but for
the sake of the Nation to which it is responsible."

I could go on, and on and on and on with Casey. Each one of these pints of law
is a difference case the Aff. can run. You get the point.

Galloway gave, though he did not intend to do so, an example of how the
resolutions can be crafted correctly.

Gotta go

Scott


















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