[eDebate] Partial Birth Abortion

Adam Farra adamhfar
Wed Apr 18 20:24:29 CDT 2007

Some reflections I have on the Court topic:

1) After reading/skimming Gonzales v. Carhart I think it is fair to  
say that the real problem with the Court topic was not that the  
literature was bad, or that the terms of art used were incoherent, or  
that the T issue was tricky and affirmatives were overly limited, or  
even the ever-persuasive "legal topics intrinsically blow" claims -  
the problem was that debaters and their coaches wanted to find a way  
to debate the apocalypse more than they wanted to find a way to make  
the legal literature "fit" within the parameters of debate as we know  
it to be. Carhart in and of itself demonstrated how crafty teams  
debating Casey could have been (either aff or neg); for example, from  
Ginsburg's dissent we see that the ruling in Carhart could have been  
about two important issues (that either pro-life or pro-choice Casey  
affs/negs could have accessed easily):

A. Debates about the actual nature of PBA compared to the popularly  
debated "D&E" & "D&X" procedures.

Ginsburg: "'[T]he notion that either of these two equally gruesome  
procedures ? is more akin to infanticide than the other, or that the  
State furthers any legitimate interest by banning one but not the  
other, is simply irrational.' Stenberg, 530 U. S., at 946?947  
(Stevens, J., concurring)."

There are legitimate arguments going both ways on this particular  
issue - and these debates could have given way to great debates about  
the value of life, the way society defines life beginning/ending,  
etc. For all of those "anti-K" groups out there I am with you most of  
the time, but these issues are valuable and educational, and they are  
"real world" issues that we as a community could have had the chance  
to discuss in depth - turns out, we didn't.

B. Considering morality in SCOTUS jurisprudence, and how that would  
have linked up to other important decisions (in this case Lawrence):

Ginsburg: "Ultimately, the Court admits that 'moral concerns' are at  
work, concerns that could yield prohibitions on any abortion. ... By  
allowing such concerns to carry the day and case, overriding  
fundamental rights, the Court dishonors our precedent. See, e.g.,  
Casey, 505 U. S., at 850 ... Lawrence v. Texas, 539 U. S. 558, 571  
(2003) (Though ?[f]or many persons [objections to homosexual conduct]  
are not trivial concerns but profound and deep convictions accepted  
as ethical and moral principles,? the power of the State may not be  
used 'to enforce these views on the whole society through operation  
of the criminal law.' (citing Casey, 505 U. S., at 850))."

This particular issue of how the Court should position itself in  
moral debates (or if it should have at all) would have been a GREAT  
wedge against, say, the shitty shitty shitty Constitutional Amendment  
CP (since you could not really amend that the Court "no longer be  
moral in its decisions" - maybe you could, but it would have been a  
credible and legitimate wedge and one could have worked out the  
kinks), and it would have given the community access to a body of  
literature that close to NOBODY used - debates about the "enduring"  
Constitution versus "originalist" and/or "textualist" methods of  
Constitutional interpretation.

With the exception of Wake's spicy spin on these arguments as "pseudo- 
procedurals," these bodies of literature did not get the attention  
they deserved from the community - which I think is somewhat  
ridiculous considering this is one of the bigger debates that will  
probably go on for forever.

2) What relevance does this have to the future? I think it means that  
those people who are rolling their eyes at "another" foreign-policy- 
nuclear-war-big-stick-hegemony-oil-bullshit Middle East topic should  
just learn the (relatively sad) lesson that the Court topic taught us  
- yes, it kind of sucks that debate is like this (and we all know who  
the teams are that propagate it - we look at them in our squad rooms  
everyday), but perhaps we should simply accept that this is where  
debate is currently, and try to make it better within that framework  
of foreign-policy-nuclear-war-etc. (for example, by crafting a topic  
that deals head-on with issues of proliferation, economic stability,  
terrorism, etc.).

Once we accept that reality we can then begin to try and "spice  
things up" with new spins on old styles of debate - so, for instance,  
including debates about particular countries or particular policies  
requires debaters to stay away from the vague and theoretical  
"engagement v. pressure" debates and instead discuss the SPECIFICS of  
particular policies, the SPECIFICS of those policies' ramifications  
for US-Israeli relations, the SPECIFICS of the way certain components  
of particular foreign policies get interpreted by the populations of  
other countries, what that means, etc.

Sadly, I think this will be a very very very slow process, but I  
think it is something to keep in mind, and it is a reason why I am  
relieved that we chose a Middle East topic over genetic engineering -  
although I think the genetic engineering literature would have been  
fresh and interesting to research - I truly believe that debate would  
have made it suck, much as it made the study of the law suck - which  
is sad, because I think the law is a wonderfully complicated set of  
codes that has expanded to the point where it will (and already does)  
affect a vast majority of Americans in a very distinct way.

Back to exams.


On Apr 18, 2007, at 8:36 PM, Kade Olsen wrote:

> This may have been posted.
> I don't know how much people still care about the courts.   
> Nontheless, Gonzales v. Carhart is pretty big deal.
> http://www.law.cornell.edu/supct/html/05-380.ZS.html
> http://www.nytimes.com/2007/04/18/us/18cnd-scotus.html?hp
> There are a number of commentaries on scotusblog that are interesting.
> Kennedy, of course, wrote the majority opinion.  After year of  
> debating the courts, I think we can conclude that while Kennedy  
> will make a liberal decisions here and there, he still sucks.  More  
> importantly, the court is still evil and judicial overhang will  
> continue to undermine individual rights.
> Kade _______________________________________________
> eDebate mailing list
> eDebate at www.ndtceda.com
> http://www.ndtceda.com/mailman/listinfo/edebate

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