Tampa Prep 2009-2010
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Amendment Counterplan
1/64
AMENDMENT COUNTERPLAN
Amendment Counterplan ........................................................................................................................................................................... 1
Notes on the Counterplan........................................................................................................................................................................... 2
Amendment Counterplan 1NC 1/3 ............................................................................................................................................................ 3
Amendment Counterplan 1NC 2/3 ............................................................................................................................................................ 4
Amendment Counterplan 1NC 3/3 ............................................................................................................................................................ 5
*** Solvency ***....................................................................................................................................................................................... 6
2NC Solvency ............................................................................................................................................................................................ 7
Solvency – Precedent Spillover ................................................................................................................................................................. 8
Solvency – Social Change ......................................................................................................................................................................... 9
Solvency – International Perception ........................................................................................................................................................ 10
Solvency – International Law .................................................................................................................................................................. 11
Solvency – Education .............................................................................................................................................................................. 12
Solvency – Abortion ................................................................................................................................................................................ 13
Solvency – Environment .......................................................................................................................................................................... 15
Solvency – Disabilities ............................................................................................................................................................................ 16
Solvency – Housing ................................................................................................................................................................................. 17
Solvency – Disaster Relief ....................................................................................................................................................................... 18
Solvency – Legal Services ....................................................................................................................................................................... 19
Solvency – Health Care ........................................................................................................................................................................... 20
Solvency – Full Employment ................................................................................................................................................................... 21
*** Answers To *** ................................................................................................................................................................................ 22
AT: Perm 1/2 ........................................................................................................................................................................................... 23
AT: Perm 2/2 ........................................................................................................................................................................................... 24
AT: Perm do the Counterplan .................................................................................................................................................................. 25
AT: CP Links to Legitimacy .................................................................................................................................................................... 26
AT: Rollback............................................................................................................................................................................................ 27
AT: CounterAmendment ......................................................................................................................................................................... 28
AT: Delay ................................................................................................................................................................................................ 29
AT: No Enforcement................................................................................................................................................................................ 30
AT: Clarity ............................................................................................................................................................................................... 31
AT: Have to Have a Solvency Advoacte ................................................................................................................................................. 32
AT: Multiple Actor Fiat Bad .................................................................................................................................................................... 33
AT: Can’t Fiat States Ratify .................................................................................................................................................................... 34
AT: States DA .......................................................................................................................................................................................... 35
AT: Amendments Bad (Generic) ............................................................................................................................................................. 36
AT: Amendments Bad (Specific Interpretations)..................................................................................................................................... 37
AT: Amendments Bad (Politicizing) ....................................................................................................................................................... 38
AT: Amendments Bad (Incoherence) ...................................................................................................................................................... 39
AT: Amendments Bad (Dilute Constitution) ........................................................................................................................................... 40
AT: Amendments Bad (Constitutional Clutter) ....................................................................................................................................... 41
AT: Amendments Bad (Democracy) ....................................................................................................................................................... 43
AT: Amendments Bad (Federalism) ........................................................................................................................................................ 44
AT: Amendments Bad (Runaway Amendments)..................................................................................................................................... 45
AT: Amendments Bad (Balanced Budget Amendment) .......................................................................................................................... 46
AT: Amendments Bad (Flag Burning) ..................................................................................................................................................... 47
AT: Amendments Bad (Hamesath) .......................................................................................................................................................... 48
AT: Amendments Bad (Civil War) .......................................................................................................................................................... 49
AT: Watson (Howard Law Review) ........................................................................................................................................................ 50
AT: Convention Changes Amendment Procedures ................................................................................................................................. 51
AT: Straus ................................................................................................................................................................................................ 52
*** Judicial Interpretation Net Benefit *** ............................................................................................................................................. 53
Ext – Amendments Key to Political Engagement .................................................................................................................................... 54
Ext – Amendments Key to Political Engagement .................................................................................................................................... 55
Ext – Political Engagement Key to Liberty ............................................................................................................................................. 56
2NC Democracy Impact .......................................................................................................................................................................... 57
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
2/64
NOTES ON THE COUNTERPLAN
So the amendment counterplan was conceived of a while back but made a name for itself on the Courts topic on the college circuit.
This counterplan is for all intents and purposes UNDEFEATABLE. The only REAL offense the aff can get is theory, which they
probably won’t win on. There are several disads to this counterplan, but most all of them either link to the aff as well or don’t link.
Basically the counterplan is to pass an amendment to the constitution doing the plan. Its basically a congress CP that solves spillover
because when the court rules, it looks to the constitution for guidance on how to rule on any given case. Below are the notes from a
camp lecture at DDI on this CP. It should clear up a lot of this.
I.
II.
A.
Based off of Article 5, U.S. constitution
A. 2 ways
1. Two thirds in both houses and three fourths of the states
2. Other one doesn’t matter
B. Solves precedent spillover advantages and avoids DAs
C. Make CP text as similar to the aff as possible (don’t use overrule though)(could pass an amendment that says X court decision is null and void and
switch to X standard away from X standard)(courts define language – use the language in the amendment and they aren’t allowed to change what it
means because its court precedent now)(look for specific amendments – welfare amendment)
D. Look for cards from law reviews (when cutting new cards)
E. Presidents and Governors did nothing
1. Means state DAs don’t link
F. Net bens
1. Court Capital
2. Court Legitimacy
3. Reverse politics (perm shields the link)
4. Hollow Hope
Aff args
A. Combination of the perm and the solvency deficit
1. Shields the link – the court is holding up the amendment/ruling on the amendment- Court has more respect for its own amendment – perm is
the court ruling on the amendment, which means they’ll follow it.
2. Theory is deadly – too much fiat (the lit can’t assume it)
i. C-interp: Can fiat fed, not states
ii. No lit
3. Neg answers to theory
i.
Fiat is relative to the aff – to rule on that nature is radically difficult – you change the minds of judges – fiats changing the court to
make sure it votes your way, clean up the court, appoint new judges where needed, etc.
ii. Testing
iii. There is a lit base – advocates on amending – Jesse Jackson Jr. writes
iv. Answer states fiat
v. Last amendment to pass took 202 years to pass – it was originally proposed in the original continental congress (i.e. amendment takes
longer than courts) (but – if you win that courts take longer – they have to give a decision and fiat is immediate – careful on the
perm because that makes it essentially a timeframe perm which takes out the DAs)
4. DAs to the counterplan
i.
Amending the CP too much weakens respect of it (pres powers like)(this links to the aff, they’ve changed it as well (overrule is the
same as the aff))(amendment fever)
ii. Spillover DA (note for the lit: this lit may be talking about passing more than one amendment – read the cards) – political coalitions
pass things in packages (first ten, 13, 14, 15) – political favors mean another amendment would be blocked into the CP (balanced
budget amendment – anti Kensyan – spending good (impact turn that))(flag burning amendment – free speech impact)
a.
No amendments will be passed, their all unpopular, etc
b. Impact turn – more amendments good – means court doesn’t have to act as much
c.
Links more to the aff
iii. States DA question – governors would do stuff (gooogle: amendment and special session)(gazprom deal in Alaska)
iv. CP links to its net bens – courts are the go to place for change for the constitution – CP weakens the judicial process (legitimacy,
capital, etc)
d. Neg answers (but it respect the court because they got the interpretation right, but precedent wasn’t strong enough)
Beating perm shield link – if they say grounds, then they have to defend THOSE grounds, in the world of the counterplan, they would make a NEW
amendment, which mean that the perm doesn’t shield because it rules on EXISTING grounds
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
3/64
AMENDMENT COUNTERPLAN 1NC 1/3
Counterplan Text: The United States Congress should pass and at least three-fourths of the states should ratify a
constitutional amendment_____________________________________________________________________________________
____________________________________________________________________________________________________________
____________________________________________________________________________________________________________
___________________________________________________________________________________________________________.
Contention 1 is Competition: Counterplan competes through the court disad net benefits, and they chose grounds to rule on,
means perm links to overrule.
Contention 2 is Solvency:
Amendments can overturn the Supreme Court
Schaffner 2005, American University Law Review, Associate Professor of Law, George Washington University Law School
Because the judicial branch has the ultimate authority over constitutional interpretation and construction, the only "check" on
judicial power of constitutional interpretation is the constitutional amendment process. The amendment process should be
used to overturn the Court only when it acts beyond its powers or inconsistently with constitutional principles. Otherwise, the
careful balance of powers among the branches is compromised. The history of amending the Constitution to overrule Supreme
Court decisions is consistent with this view and is particularly relevant here. While the U.S. Supreme Court is not being
overturned by the FMA, the Massachusetts Supreme Judicial Court's Goodridge decision is in jeopardy. Goodridge was the
catalyst for the fervor behind the proposed marriage amendment. Moreover, the FMA will forever prevent the U.S. Supreme
Court from addressing the issue. Only four constitutional amendments have been adopted to overrule the Supreme Court.
n186 They are: (1) the Eleventh Amendment, which overruled Chisolm v. Georgia; n187 (2) the Thirteenth Amendment and,
most specifically, the first sentence of the [*1519] Fourteenth Amendment, n188 which overruled Dred Scott v. Sanford; n189
(3) the Sixteenth Amendment, which overruled Pollack v. Farmer's Loan & Trust Co.; n190 and (4) the Twenty-Sixth
Amendment, which overruled Oregon v. Mitchell. n191 As we will see, each amendment was in harmony with the basic
principles that underlie the Constitution - individual rights, separation of powers, and federalism. Moreover, in the cases
where fundamental liberty interests were at stake, the amendment reestablished individual rights in light of the Court's
limited interpretation of those rights. Without analyzing the propriety of the individual Supreme Court decisions, the
following will demonstrate that, unlike the FMA, the use of the amendment power to overrule these cases was proper and
consistent with basic democratic principles.
And the amendment won’t be challenged or rolled back
Vermeule ‘04 [Adrian, Prof @ Chicago Law, “Constitutional Amendments and the Constitutional Common Law,”
http://www.law.uchicago.edu/academics/publiclaw/index.html]
A benefit of formal amendments, then, is to more effectively discourage subsequent efforts by constitutional losers to overturn
adverse constitutional change. Precisely because the formal amendment process is more costly to invoke, formal amendments are
more enduring than are judicial decisions that update constitutional rules; so losers in the amendment process will less frequently
attempt to overturn or destabilize the new rules, in subsequent periods, than will losers in the process of common-law
constitutionalism. This point does not necessarily suppose that dissenters from a given amendment come to agree with the enacting
supermajority’s judgment, only that they accept the new equilibrium faute de mieux. Obviously more work might be done to specify
these intuitions, but it is at least plausible to think that the simplest view, on which formal amendments incur decisionmaking costs
that exceed their other benefits, is untenably crude. The overall picture, rather, is a tradeoff along the following lines. Relative to
common-law constitutionalism, the Article V process requires a higher initial investment to secure constitutional change. If Mueller is
right, however, constitutional settlements produced by the Article V process will tend to be more enduring over time than is
judicial updating, which can be unsettled and refought at lower cost in subsequent periods.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
4/64
AMENDMENT COUNTERPLAN 1NC 2/3
Contention 3 is the Net Benefit:
Judicial interpretation destroys liberty and prevents political engagement
Twight 2K (Charlotte Twight, Research Fellow at The Independent Institute, Professor of Economics at Boise State University, 10-12K “Constitutional Counterrevolution” http://www.independent.org/publications/article.asp?id=277)
As I see it, here is what happened. During the twentieth century, legislators, Supreme Court judges, and executive branch
officials began to perfect techniques for deflecting and curtailing people’s resistance to actions that increased the power of
the central government. You and your contemporaries well understood the dangers of overreaching government and, through the
Constitution, tried to limit its power. But living in a society so recently chafing under British rule, a young nation whose people
yearned for freedom, it would have been difficult to imagine how America’s own elected and appointed officials—without
triggering public censure and usually without amending the Constitution—might take systematic actions to erode the explicit
constitutional limits on their power that you designed. Yet that is exactly what occurred. The techniques that emerged involved a
bevy of government actions sharing one defining characteristic: they increased other people’s costs of resisting government
expansion. In each case, government officials made it more difficult or costly for people to perceive, or take action to resist,
federal power-expanding measures. It is what I call “political transaction-cost manipulation”: government officials’ deliberate
alteration of people’s costs of undertaking collective political action in matters that affect the scope of government authority. [1]
These federal actions have included misrepresenting the nature and consequences of government action, proceeding
incrementally, concealing the cost of government actions, tying controversial measures to more popular legislative bills, hiding
unpopular provisions in omnibus bills, concentrating the benefits and dispersing the costs of government action, changing the
Constitution through the back door of the Supreme Court rather than by constitutional amendment, and myriad
analogous strategies. As I’ll explain in a minute, diverse efforts in the twentieth century to expand the federal government’s
power all have involved such strategies—implying that initial public acquiescence to new government institutions often did not
reflect true public consensus. Once in place, however, institutions exercising new federal powers subsequently channeled
ideological change, and nurtured special interests, in ways that supported the new regime. Consider a few examples. The first
one is sure to infuriate you, James. Remember the care you took in providing for the constitutional amendment process? You
wisely and deliberately made it very cumbersome, trying to assure that the Constitution’s provisions could not be altered without
great effort and widespread agreement on the desirability of the changes. In short, you hoped to make it very costly for people to
alter constitutionally established limits on the central government’s power. During the twentieth century, however, the U.S.
Supreme Court often served to bypass the amendment process. Increasingly, Supreme Court decisions changed the
Constitution’s long-established meaning without benefit of constitutional amendment, reinterpreting the document—
sometimes literally changing the definition of its words—to broaden the central government’s powers far beyond what you
and the other Founders envisioned. Confronted with such unilateral action by the Supreme Court, how could people then
preserve their liberty? Of course, they themselves could seek a constitutional amendment to spell out more concretely the
original meaning of the Constitution and thereby bind the Supreme Court. But the cumbersome amendment process, meant to
constrain those who would change fundamental constitutional protections, then impeded those who desired to preserve the
original meaning of the Constitution. In other words, the political transaction costs that you intended to be a barrier to those who
desired to change the Constitution’s substance instead served as a barrier to those who desired to uphold the Constitution’s
original substance. It is a classic type of political transaction-cost manipulation. The Commerce Clause One example is the
Supreme Court’s reinterpretation of the Constitution’s interstate commerce clause in a 1942 case called Wickard v. Filburn. As
you recall, you and the other drafters gave the federal government power over interstate commerce (“commerce among the
several States”) to make sure that the individual states did not erect trade barriers against one another. Commerce within the
separate states, intrastate commerce, was beyond the central government’s authority. In Wickard, however, the U.S. Supreme
Court proclaimed that the central government had power to regulate even the wheat that an individual wheat farmer grew on his
own land, within a single state, for his own family’s consumption. The Court’s rationale was that if the farmer had not grown
that wheat for his family’s consumption, he would have had to purchase wheat that might have moved in interstate commerce.
Since locally produced and consumed wheat “competes with” wheat moving in commerce, this purely local activity was deemed
to affect interstate commerce and thus justify federal regulation. The Supreme Court thereby threw the constitutional doors wide
open, allowing the central government to embed itself into virtually any economic activity, no matter how local. Throughout the
twentieth century, this key tactic of judicial reinterpretation allowed the Supreme Court to effectively trump the
constitutional amendment process that you designed. If people wanted to preserve the limits on central government power
that you wisely created, the defenders of the original Constitution—not its opponents—would have to undergo the high
transaction-cost process of constitutional amendment. With the deck stacked against such a costly undertaking, no amendment
materialized to shield intrastate commerce or other realms from the federal government’s growing regulatory reach.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
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AMENDMENT COUNTERPLAN 1NC 3/3
Political engagement key to solve all impacts from environmental destruction to imperialism
BOGGS 2K, PF POLITICAL SCIENCE – SOUTHERN CALIFORNIA, [CAROL, THE END OF POLITICS, 250-1]
But it is a very deceptive and misleading minimalism. While Oakeshott debunks political mechanisms and rational planning as either
useless or dangerous, the actually existing power structure replete with its own centralized state apparatus, institutional hierarchies,
conscious designs, and indeed, rational plans- remains fully intact, insulated from minimalistic critique. In other words, ideologies and
plans are perfectly acceptable for elites who preside over established governing systems, but not for ordinary citizens or groups
to challenge the status quo. Such one sided minimalism gives carte-blanche to elites who naturally desire as much space to
maneuver as possible the flight form “abstract principles” rules out ethical attacks on injustices that many pervade the status quo
(slavery or imperialistic wars for example) insofar as those injustices might be seen as too embedded in the social and institutional
of the matrix of the time to be the target of oppositional political action. If politics is reduced to nothing other than a process of
everyday muddling-through then people are condemned to accept the harsh realities disgusting and demeaning way in which that
money is spent are testimony to the mounting corruptions of politics and government.” 17 Given such growing corruption, it follows
that the often-heard appeals to “realism” and pragmatism- so typical of Oakeshott-style discourse- can only lead right back to
established modes of doing business. What this suggests, for example, is that any hope of “solving” deep social problems will have to
advanced in a minimalistic framework that will never go further tepid social policies that leave business interests totally unaffected, or
cosmetic reforms, or the “greening ” of huge corporations that simply want to profit off environmentally-critical goods, and so forth.
A much needed radical agenda geared to sustainable, egalitarian, and ecologically balanced forms of production and consumption is
automatically ruled out by the minimalistic scenario. A thorough going revival of politics-one that vigorously questions and seeks to
go beyond the routinized liberal pragmatism favored by Oakshott-is a precondition for the transcending this political predicament. Of
course, any distinctly political imperative flies in the face of a deeply antipolitical culture where politics has such an unsavory
association with money corruption, interest peddling, scandals, PACs, bureaucracy, and largely irrelevant campaign spectacles- where
indeed politics has been reduced to a farcial representation of its most enduring motifs. For the most part people in the united state
normal politics means little more than false promises and empty discourses that might serve to improve people’s lives. The concept of
politics that informs this book, however, holds out prospects for a more empowering, participatory, transformative legacy compatible
with an enlarged public sphere and the subversion of corporate hegemony. While this concept imputes an ethical and visionary
dimension to politics, it also points toward the matter of strategic necessity in that politics constitutes the only (potential)
countervailing power against corporate domination. Localized, and extrapolitical opposition can lay the groundwork for
popular movement , but alone (in the absence of more generalized structural mediations) such opposition will never lead to
large scale societal change. Notwithstanding Oakeshott, therefore, an imminent retrieval of politics becomes an urgent imperative at a
time when destructive global forces cannot be tamed by a pragmatic, muddling-through modus operandi.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
6/64
*** SOLVENCY ***
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
7/64
2NC SOLVENCY
The CP solves the whole case --- Schaffner says the CP is essentially identical and every bit as potent as the plan --- it forces
judicial incorporation just as much as the aff
Shany ‘06 [Yuval, Hersch Lauterpacht Chair in Public International Law, Hebrew University, 31 Brooklyn J. Int'l L. 341, ln]
Another concern raised by opponents of incorporation is that the introduction of international law at the CL level might disrupt the
existing legal discourse and create disharmonizing tensions. 175 Incorporation would require the importation into the domestic legal
system of foreign normative concepts that are not based upon local notions of justice and specific social structures. Differences
between national and international [*390] law -- from differences in legal drafting techniques to differences in the methods of
balancing competing social interests -- further complicate integration efforts. 176 For example, IHR law might require a more
intrusive standard of governmental involvement in social life (through the introduction of positive human rights obligations) than what
is acceptable within a given society. 177 The introduction of such far-reaching reforms through judicial action, without correlative
changes in the structure and machinery of government, might be ineffective and disruptive. When linked to the argument addressed
below regarding the lack of familiarity of domestic judges with IHR law, the formidability of the task of incorporation becomes
apparent. Arguably, a more prudent course of action would be to encourage legislators and other constitutional actors to gradually
introduce constitutional amendments necessary to meet the state's international obligations. 178 Such a process would not only meet
separation of powers and accountability concerns, 179 but it would also ensure smoother integration of international norms into the
domestic legal system.
Constitutional Amendments are legitimate ways to overrule Supreme Court decisions
Chemerinsky ‘98 (Michigan Law Review, May 1998, Erwin, Northwestern and Harvard Law graduate, argued several cases in front
of the Supreme Court, published over 100 law review articles, current and founding dean of the University of California, Irvine School
of Law)
Perhaps more significant from a constitutional perspective is the question of the proper use of the amendment process as a check on the
Supreme Court. Kyvig's book details four instances in which the Constitution was amended to overturn Supreme Court decisions.
The Eleventh Amendment, which protects state governments from being sued in federal court, was ratified to overturn the Court’s decision in Chisholm v.
Georgia32 (pp. 111-14). The Fourteenth Amendment's declaration that "[a]ll 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 re- side"33 overrules the Court's contrary ruling in Dred Scott v. Sand- ford34 (p. 156163). The Sixteenth Amendment, which authorizes the personal income tax, was adopted to overrule the Court's decision in Pollock v. Farmers' Loan & Trust
Co.35 (pp. 193-218). Finally, the Twenty-sixth Amendment, which protected the right of those over eighteen to vote, was enacted in response to Oregon v.
Mitchell36 that invalidated a federal law that created the same requirement (pp. 363-68). If it is accepted, as I argued in Part I, that the Supreme Court should
have discretion in interpreting the Constitution to ensure necessary evolution, then the amendment process becomes crucial as the only direct
political check on the judiciary. When is it appropriate to use the amendment process to overturn a Supreme Court decision that is
regarded as seriously misguided? Although I disagree with virtually all of the contemporary proposals to overturn Supreme Court decisions by constitutional
amendments, I cannot yet articulate a reason why this is an illegitimate use of the amending process. To the contrary, Kyvig's history shows that
since its inception the amendment process has been used in just this way. The first amendment adopted after the Bill of Rights, the Eleventh
Amendment, was enacted to overturn a Supreme Court decision, and there have been countless proposals to try by amendment to overrule other decisions.
Article V can overturn specific Supreme Court decisions
Denning & Vile ’02 (Brannon P, Assistant Prof of Law, Southern Illinois University School of Law; John R, Chair, Dept of Political
Science @ Middle Tennessee State University; November, 77 Tul. L. Rev. 247 ln)
Perhaps the most important function that the Article V amending process potentially plays is that it offers a check on the
Supreme Court's decisions, short of outright defiance. In fact, of our twenty-seven amendments, at least four were ratified to
overturn, or in reaction to, a specific Supreme Court decision. n122 Strauss's argument that many of these Court opinions were
aberrant and would not have survived for very long anyway is beside the point. By resort to the amendment process, "We the
People" are not dependent upon the Court seeing the errors of its ways and correcting them. The standard amending process does
require the cooperation of Congress, but, even here, the Founders provided an alternative in case this institution proved to be
unreliable. Although the Article V convention mechanism has not been used, it appears to have prompted Congress to propose
amendments on a number of occasions, most notably in the case of the Seventeenth Amendment, providing for direct election of
the Senate. That process can be hastened without the interference of, or dependence upon, intermediating institutions. Strauss
may be correct that, absent Article V, the Court or Congress would eventually arrive at the same place as a formal amendment,
but, to paraphrase Keynes, eventually we will all be dead. [*277] Issues of ultimate efficacy aside, it would seem to be
psychologically important to have open a process for amendment, lest a polity be unable to loosen the dead hand of the past other
than by severing its connections with the past completely through revolution (with all the uncertainty that accompanies such
radical surgery), or be unable to escape the occasional ill-starred decision of a branch, like the Supreme Court, which is insulated
from the application of ordinary political pressure.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
8/64
SOLVENCY – PRECEDENT SPILLOVER
An amendment solves all of the benefits of a judicial decision, without the costs of violating precedent
Vermeule ’04 (Adrian, Prof of Law @ The University of Chicago, “Constitutional Amendments and the Constitutional Common
Law” September http://www.law.uchicago.edu/academics/publiclaw/index.html)
These points, however, capture only one side of the ledger. Precedent, and the constraint that new decisions be related
analogically to old decisions, effect a partial transfer of authority from today’s judges to yesterday’s judges. As against claims of
ancestral wisdom, Bentham emphasized that prior generations necessarily possess less information than current generations. If
the problem is that changing circumstances make constitutional updating necessary, it is not obvious why it is good that current
judges should be bound either by the specific holdings or by the intellectual premises and assumptions of the past. Weak theories
of precedent may build in an escape hatch for changed circumstances, but the escape hatch in turn weakens the whole structure,
diluting the decisionmaking benefits said to flow from precedent. Another cost of precedent is path dependence. Path
dependence is an ambiguous term, but a simple interpretation in the judicial setting is that the order in which decisions arise is an
important constraint on the decisions that may be made. Judges who would, acting on a blank slate, choose the constitutional rule
that is best for the polity in the changed circumstances, may be barred from reaching the rule, even though they would have
reached it had the cases arisen in a different order. Precedent has the effect of making some optimal rules inaccessible to current
decisionmakers. When technological change threatened to render the rigid trimester framework of Roe v. Wade obsolete, the
Supreme Court faced the prospect, in Pennsylvania v. Casey, that precedent would block a decision revising constitutional
abortion law in appropriate ways, even though a decisive fraction of the Justices would have chosen the revised rule in a case of
first impression.78 The joint opinion in Casey resorted to intellectual dishonesty, proclaiming adherence to precedent while
discarding the trimester framework that previous cases has taken to be the core of Roe’s holding.79 The lesson of Casey is
sometimes taken to be that precedent imposes no real constraint, but absent precedent the Justices would have had no need to
write a mendacious, and widely ridiculed, opinion. The institutions that participate in the process of formal amendment,
principally federal and state legislatures, are not subject to these pathologies. The drafters of constitutional amendments may
write on a blank slate, drawing upon society’s best current information and deliberation about values, while ignoring precedent
constraints that prevent courts from implementing current learning even if they possess it. The contrast is overdrawn, because
legislatures deliberating about constitutional amendments use precedent in an informal way. But precisely because the practice of
legislative precedent is relatively less formalized than the practice of judicial precedent, legislative practice may capture most of
the decisional benefits of formal precedent while minimizing its costs. Legislatures may draw upon their past decisions purely to
conserve on decisionmaking costs, while shrugging off precedential constraints whenever legislators’ best current information
clearly suggests that the constitutional rules should be changed.
Amendments cause judicial modeling
Marron ‘03 [Brian P. Editor in Chief of MARGINS Symposium @ Maryland Law, 3 Conn. Pub. Int. L.J. 157, ln]
Raskin explains that some of the solutions require the adoption of new Constitutional amendments such as the ones he has mentioned
earlier. Congress lacks the power to effectively reverse the Supreme Court's (mis)interpretations of the Constitution that rejected
democratic values. 129 In fact, a movement for democratic constitutional change itself can influence the reasoning of the Court. For
instance, although the Equal Rights Amendment failed to pass, the Supreme Court apparently took notice of the movement's principles
and began to apply "heightened" scrutiny to cases of gender-based classifications. 130
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
9/64
SOLVENCY – SOCIAL CHANGE
Solves Social Change Better than Plan
Vermeule 4—professor of law at the University of Chicago (LAW SCHOOL, THE UNIVERSITY OF CHICAGO,
“CONSTITUTIONAL AMENDMENTS AND THE CONSTITUTIONAL COMMON LAW,” September 4,
http://ssrn.com/abstract_id=590341, CJ)
We must account for the costs of decisionmaking as well as the quality of decisions. A simple view would be that the formal amendment process is too
costly to serve as the principal means, or even as an important means, of constitutional updating, just as periodic constitutional conventions are too costly to be
practical. Dennis Mueller denies this view. He suggests instead that the decision costs of the formal amendment process are decision benefits:
The
U.S. Constitution contains broad definitions of rights, and the task of amending their definitions to reflect changes in the country’s
economic, social and political characteristics has been largely carried out by the Supreme Court. While this method of updating the
Constitution’s definition of rights has helped to prevent them from becoming hopelessly out of date, it has failed to build the kind of
support for the new definitions of rights that would exist if they had arisen from a wider consensual agreement in the society. The
bitter debates and clashes among citizens over civil rights, criminal rights and abortion illustrate this point. . . . Although [alternative procedures for
constitutional amendment] may appear to involve greater decision-making costs, they have the potential for building consensus over
the newly formulated definitions of rights. On this view, it is an illusion that constitutional common law incurs lower decision costs in
the long run, even if a given change may be more easily implemented through adjudication in the short run. Although at any given time it is
less costly to persuade five Justices to adopt a proposed constitutional change than to obtain a formal amendment to the same effect, the former mode of change incurs
higher decision costs over time, because common-law constitutionalism allows greater conflict in subsequent periods. A benefit of
formal amendments, then, is to more effectively discourage subsequent efforts by constitutional losers to overturn adverse
constitutional change. Precisely because the formal amendment process is more costly to invoke, formal amendments are more
enduring than are judicial decisions that update constitutional rules;83 so losers in the amendment process will less frequently attempt to overturn or destabilize the
new rules, in subsequent periods, than will losers in the process of common-law constitutionalism. This point does not necessarily suppose that dissenters from a given
amendment come to agree with the enacting supermajority’s judgment, only that they accept the new equilibrium faute de mieux. Obviously more work might be done
to specify these intuitions, but it is at least plausible to think that the simplest view, on which formal amendments incur decisionmaking costs that exceed their other
benefits, is untenably crude. The overall picture, rather, is a tradeoff along the following lines. Relative to common-law constitutionalism, the Article V process requires
a higher initial investment to secure constitutional change. If Mueller is right, however, constitutional settlements produced by the Article V process will tend to be
more enduring over time than is judicial updating, which can be unsettled and refought at lower cost in subsequent periods.
Constitutional amendments key to provoke social change—states prove
Herschkoff 2—professor of law at New York State University (Rutgers Law Journal, “Positive Rights and the Evolution of State
Constitutions,” Summer 2002, lexis, CJ)
My basic premise is that state constitution amendment processes create important occasions for public dialogue, value formation, and
social reform. n25 Whether constitutional amendments promote, or merely reflect, broader changes in a society remains an important,
but unresolved question. n26 Yet however this question is answered, state constitutions form an important piece of the analysis. As
Professor G. Alan Tarr explains: [State constitutions] create the institutions of state government, and the structure of those institutions
affects the policies that they produce. State constitutions influence how effectively state governments can address policy concerns.
They also forge the links between state governments and the citizens of those states, and at their best, they embody the aspirations of
those citizens. n27 The state constitutional experience thus provides a helpful, complementary perspective on whether constitutional
amendments facilitate legal and social change. Pointing to more than five thousand state constitutional amendments, John Kincaid
suggests that "by itself, activity is not a measure of importance; however, it is difficult to imagine state electorates engaging in such
constitutional activity if they did not believe that state constitutional law was important." n29
Constitutional amendments key to system-wide reform
Vermeule 4—professor of law at the University of Chicago (LAW SCHOOL, THE UNIVERSITY OF CHICAGO,
“CONSTITUTIONAL AMENDMENTS AND THE CONSTITUTIONAL COMMON LAW,” September 4,
http://ssrn.com/abstract_id=590341, CJ)
I have suggested that actors in the amendment process have relatively greater capacity to take a systemwide perspective. Where
circumstances require structural change in the polity, the systemic perspective is at a premium, and the relative virtues of the
amendment process are indispensable. It is unimaginable, in my view, that the basic readjustment of power between federal and state
governments embodied in the Reconstruction amendments could have emerged from a process of common-law constitutionalism; nor
would it have been desirable for it to do so. The polity-wide scale of the necessary changes demanded that they be considered, if not
all at once, then at least in much larger decisional chunks than a case-by-case process of decisionmaking could provide. The
Reconstruction Congresses saw a wide range of political actors, representing a wide range of skills, information and interests,
deliberate and bargain over large packages of rules simultaneously, reciprocally adjusting the choices made on different margins.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
10/64
SOLVENCY – INTERNATIONAL PERCEPTION
Amendment is perceived internationally --- solves any signaling advantages
Herlihy ‘06 [Sarah P., J.D. Chicago-Kent College of Law, 81 Chi.-Kent. L. Rev. 275, ln]
Americans may oppose a Constitutional amendment because of the international perception that it would create. Even though the increase
of globalization dictates that America should amend the natural born citizen requirement, Americans may oppose a Constitutional amendment because this type of
change would signal to the rest of the world that America is willing to be one country of many and that Americans are interested in becoming part of a global
world culture. Commentators refer to the symbolic nature of the law as the "expressive function of law" and recognize that Constitutional
amendments may have a dual effect. 78 For example, a Constitutional amendment to ban flag burning may not only deter people from
burning American flags but also signal how important patriotism is to America. 79 Similarly, opponents of a Constitutional amendment to amend
the natural born citizen clause may believe that such an amendment would have dual effects. In addition to allowing naturalized citizens to become president, this
amendment would signal to the global community that Americans want to become integrated with the rest of the world and that Americans no longer feel the need to be
the leading country in the world but are content in being on equal footing with every other country. Although some Americans may believe that the expressive function
of a Constitutional amendment is a positive signal to send, United States foreign [*296] policy indicates otherwise. Specifically, the United States government, led by
the President who is elected by the people, takes great care in preserving its position as the world's only superpower. 80 In light of this consistent policy, it is doubtful
that Americans will support an amendment to the presidential eligibility clause because this could send the wrong signal to the rest of the world.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
11/64
SOLVENCY – INTERNATIONAL LAW
A Constitutional Amendment can make international law binding
Edlin 06 [Douglas E., Prof of PoliSci @ Dickinson College, 29 B.C. Int'l & Comp. L. Rev. 1, ln]
It seems entirely plausible that American republican government permits Congress to commit the United States, on behalf of the
people, to an international or supranational institution with genuine influence over U.S. policy. There is nothing inherently
undemocratic about giving governmental representatives the authority to bind their constituencies in ways that the constituents find
surprising or objectionable. To borrow a phrase from the British context, so long as this congressional authority is not viewed as "selfembracing," there is no threat to American sovereignty or democracy, because not all delegations of sovereignty are derogations of
sovereignty. Indeed, some would say it is the essence of constitutional democracy that the majority's representatives may take certain
actions to preserve and promote constitutional values, fundamental rights, and the rule of law, despite the majority's disapproval. 51
Another constitutional objection to the ICC concerns the legal source of its judicial authority. If the United States Senate ratified the
Rome Statute, it might seem that the ICC is just another court that Congress has chosen to accept through its Article II advice and
consent power 52 rather than to create through its Article III power. 53 The problem is that Article III of the Constitution vests the
judicial power of the United States "in one supreme Court" and grants Congress the power to ordain and establish "inferior Courts."
Joining the Rome Statute would give the ICC jurisdiction over American citizens for acts committed on American soil. Given the
theoretical possibility that the ICC could prosecute an American for a crime committed in the United [*10] States, and that the ICC's
decision could not be reviewed by the Supreme Court of the United States, the ICC would be exercising the judicial authority of the
United States in a manner not contemplated or tolerated by the Constitution. 54 Under these circumstances, the ICC could not
genuinely be considered an "inferior court." The ICC's recognition as a judicial authority over American citizens by the United States
government would seem to conflict with the constitutional mandate that there be "one supreme Court." Granting the ICC judicial
authority over American nationals in a manner consistent with the U.S. Constitution would seem to require a constitutional
amendment rather than a treaty. Depending upon one's point of view, which is likely to reflect one's national constitutional tradition,
the need for a constitutional amendment prior to American acceptance of the ICC underscores the advantage (or the disadvantage) of a
written constitution.
An amendment requiring domestic judicial enforcement of ILaw preserves the constitution and solves the entire case—it’s a
massive signal
Shany 06 [Yuval, Chair in Public International Law @ Hebrew U, Jerusalem, “How Supreme is the Supreme Law of the Land?
Comparative Analysis of the Influence of International Human Rights Treaties Upon the Interpretation of Constitutional Texts by
Domestic Courts,” 31 Brooklyn J. Int'l L. 341, ln]
Nevertheless, this development has little or no bearing on CL instruments. Sometimes, such instruments were concluded before the
presumption was even enunciated. In all events, given the uncertainties regarding [*402] the status of international law on the
constitutional sphere, it is more likely than not that the drafters of constitutional instruments were unaware that the presumption might
apply vis-a-vis their brainchild. 224 The infrequency of constitutional amendment procedures further reduces the chances of factoring
in the effects of international law. In short, the fictitiousness of the presumption is more apparent in relation to constitutional
instruments than to ordinary legislation. The problematic legitimacy of relying upon drafter intent theories as part of the CL discourse
could justify, from a domestic law perspective, caution in the application of the presumption of conformity to CL instruments. Another
important concern is the relationship between the presumption of conformity and other interpretive presumptions. All systems
surveyed in this Article do not apply the presumption to the exclusion of other rules of interpretation. On the contrary, other rules of
construction are regularly applied. 225 Hence, even if the presumption is to be applied at the CL level, it may not exclude the
application of other canons of interpretation designed to protect fundamental constitutional values (such as federal organizing
principles, separation of powers, etc.); 226 nor can it override the clear meaning of the constitutional text. 227 While from an
international law perspective this outcome might be unacceptable (as it might result in non-compliance with IHR norms), it would
meet the concerns of legal systems which view compliance with international law as merely one among numerous competing
systematic values. 228 [*403] Therefore, if the presumption of conformity is to apply to CL, it should be applied with caution and
deference to other constitutional doctrines as well as sensitivity to the needs and concerns of domestic legal systems. Nevertheless, a
number of reasons justify resort to the presumption in the course of CL interpretation. First, resort to a presumption of conformity
underscores the international obligation to comply with IHR treaties and has, as a result, important symbolic value. Second,
considerations of legitimacy and stability support the incorporation of IHR into CL in the context of the well-accepted presumption of
conformity. Courts would therefore be able to build upon existing practice in the field of statutory construction when harmonizing CL
and IHR treaties. Finally, the presumption is sufficiently flexible to accommodate the necessary degrees of caution and sensitivity, as
well as the protection of other constitutional values.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
12/64
SOLVENCY – EDUCATION
Amendment solves – allows effective challenges to injustices, creates a “sea change” in politics spurring massive reform, and
restores US international leadership on the issue.
Lerum et al. ‘5 (Eric Lerum, Legislative Counsel for the Committee on Education, and Sheila Moreira, Founder, Moreira Law Firm,
and Rena Scheinkman, Associate, Fulbright & Jaworski, “Strengthening America's Foundation: Why Securing the Right to an
Education at Home is Fundamental to the United States' Efforts to Spread Democracy Abroad,” 12 Hum. Rts. Br. 13, l/n)
THE CASE FOR A CONSTITUTIONAL AMENDMENT GUARANTEEING THE RIGHT TO EDUCATION / GIVEN THE
VULNERABILITY OF THE RIGHT TO EDUCATION when we attempt to read it into our laws, proponents of securing
educational rights should also move to incorporate an explicit guarantee to education into our Constitution. Armed with a clear and
potent pledge that the right to education will be protected as a fundamental right, victims of failed educational systems across the
country could effectively challenge financing schemes, unequal distribution of resources, and de facto segregation. / [*16]
THE IMPACT OF A CONSTITUTIONAL AMENDMENT / An amendment to the U.S. Constitution guaranteeing a right to
education would place the United States in the company of nearly every industrialized nation. Without such a guarantee, the United
States stands behind Iran, Iraq, Jordan, Libya, Pakistan, Sierra Leone, Sudan, Syria, and Yemen, each of which has some, although
limited, constitutional guarantee to educational opportunity. The United States cannot legitimately lead the world as an example of
freedom and democracy when it trails so far behind much of the world with respect to its commitment to a right that is so
fundamental to effective participation in any democracy. / A constitutional amendment will also provide the catalyst to reverse our
country's history of directly and indirectly linking educational opportunities to race and wealth. In Rodriguez, the Supreme Court not
only rejected the argument that education is a fundamental right, it set the stage for resegregation of public schools and triggered the
rapid decline of educational opportunities. On the heels of Rodriguez, the Court, in Milliken v. Bradley, declared that inter-district
remedies for segregation were unconstitutional, leaving no legal basis to force desegregation across school-district lines. As
constitutional law scholar Erwin Chermerinsky has argued, Rodriguez and Milliken reversed much of the progress achieved under
Brown and essentially constitutionalized a system that is both separate and unequal. An amendment to the Constitution will begin to
undo the damage from the widespread denial of equal educational opportunity that has resulted from those decisions. / Of course,
amending the Constitution will not immediately change the state of education in the United States: schools will not simply become
better and students will not suddenly succeed overnight. But an amendment will have significant, broad-reaching policy implications.
The act of passing an amendment itself will prove to be a unifying rally around the right to education and will turn national
attention to the failing state of our public education system. Further, guaranteeing the right to an education will send the message
to policymakers, parents, and students that education is as important as the right to speak, the right to worship, and the right to a fair
trial. An amendment will be the "sea change" in our society and culture that is necessary for true education reform. Frederick
Douglass, speaking about ending the "hypocrisy of American slavery," stated that "it is not light that is needed, but fire; it is not the
gentle shower, but thunder. We need the storm, the whirlwind, and the earthquake." Amending the Constitution is the spark for the
fire, the thunder for the storm, and the tremor that begins the quake. An amendment guaranteeing a right to education will end the
hypocrisy of the American public education system.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
13/64
SOLVENCY – ABORTION
Amendment key to right to abortion
Torzilli ‘1 (Paolo Torzilli, J.D. Candidate, St. John’s University School of Law; B.B.A., George Washington University School of
Business and Public Management, 2001, 40 Catholic Law. 197, l/n)
The Declaration of Independence continues to proclaim our national political philosophy and even flourishes as collective judgements
of morality change. The Declaration of Independence embodies natural law principles, and "the most important element of natural law
is its capacity to evolve with time as the morals of a culture change." n76 If the set of natural human rights changes, this necessary
implicates the question of whether the Constitution exhibits similar flexibility. Two examples from American history suggest a change
in our Nation's collective moral judgments requires a corresponding positive law change to the document protecting natural human
rights. The Declaration of Independence was drafted under the assumption that freedom from involuntary servitude was not an [*214]
unalienable right. n77 We are certain of this because the drafter of the document, Thomas Jefferson, owned slaves. n78 The
Constitution established a governmental system best suited to secure the rights embraced by the Declaration of Independence. n79 The
Constitution was ratified under the assumption that freedom from involuntary servitude was not endowed upon all humankind; it,
therefore, did not protect such a right. n80 Dred Scott n81 reinforced the idea that the Constitution did not protect slaves' unalienable
right to be free from involuntary servitude. In that case, the United States Supreme Court concluded that ownership of slaves was an
unalienable right to property, which the Due Process Clause of the Fifth Amendment protected from curtailment by Congress. n82
Ratification of a constitutional amendment n83 was necessary to reconcile the unalienable right of freedom from involuntary
servitude endowed by God to all humans, with the protections of the United States [*215] Constitution. The Constitution, in its role as
defender, n84 was not equipped with the protective power to allow Congress to legislate a curtailment of slavery. n85 The women's
suffrage was another example of an unalienable right, for which our historical understanding as a Nation was wrong. At the time the
Constitution was ratified, the unalienable right to vote was not protected. n86 Reconciliation of the unalienable right to vote and the
defense of this right by the United States Constitution occurred on August 18, 1920. n87 On that date Tennessee ratified the
Nineteenth Amendment, "securing forever women's right to vote." n88 Like slavery, only a constitutional amendment could change
this improper historical assumption, and equip the United States Constitution with the power necessary to protect voting rights for
women. Similarly, the United States Constitution was ratified with an implicit assumption that abortion was not an unalienable right
because every jurisdiction that ratified the Constitution as supreme law of the United States also had a criminal abortion law. n89 The
Constitution, therefore, did not contemplate defending an unalienable right to abortion from governmental curtailment. Until the
ratification of the Thirteenth Amendment, the Constitution did not contemplate protecting the unalienable right to be free from
involuntary servitude. The same holds true for the Nineteenth Amendment and suffrage for women. [*216] Perhaps, our national
moral judgment with respect to the sanctity of human life will change in the future. Nevertheless, American history suggests vesting a
national human right with constitutional protections requires a constitutional amendment. n90
Only constitutional amendments can prevent overrulings for abortion, since Congress will inevitably pass alternative
legislation – jacks solvency
Pacelle, Marshall, Curry 7
Richard L. Pacelle - Department of Political Science Georgia Southern University, Ph.D from Ohio State University, Jr, Bryan W.
Marshall - Department of Political Science, Oxford, and Brett W. Curry - Doctor of Philosophy, Ohio State University, “Keepers of
the Covenant or Platonic Guardians? Decision Making on the U.S. Supreme Court” American Politics Research 2007;
)http://apr.sagepub.com.proxy.lib.umich.edu/cgi/reprint/35/5/694
Congress also has means of dealing with Court decisions short of overturning them (Keynes, 1989; Murphy, 1962, 1964). Congress
can introduce blocking legislation to limit the impact of a decision it opposes. Not long after Roe v. Wade, Congress, unable to muster
the extraordinary majorities necessary for a constitutional amendment to overturn the decision, passed the Hyde Amendment to cut off
federal funds for abortions. The decision did not overturn Roe, but it clearly made the exercise of reproductive rights more difficult
(Hoff, 1991, pp. 302-305). The “Exceptions Clause” of the Constitution gives Congress authority to alter the Court’s jurisdiction, and
it has occasionally done so. Many of the successful attempts have been conceived in a neutral fashion to assist the Court in handling
its growing caseload. In other circumstances, attempts to alter the Court’s jurisdiction were far from neutral and not designed to help
the Court. Often they involved a reaction to a Supreme Court decision that members of Congress opposed. Whether Congress can
constitutionally strip the Court of jurisdiction over specific constitutional cases is uncertain, and it has not successfully done so since
Ex parte McCardle (see Fallon, Meltzer, & Shapiro, 1996, pp. 365-370). But that has not deterred Congress from trying. Many
controversial issues reach the Supreme Court. The Court’s decisions are bound to provoke a response and have led members of
Congress to introduce legislation to limit or deny jurisdiction (Katzmann, 1997). Indeed, since 2004, three such court-stripping
measures have passed the U.S. House of Representatives
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
14/64
SOLVENCY – RACISM
Amendments can enforce racial equality even though the federal government may be opposed to it
Denning and Vile 2
Brannon P. Denning - Assistant Professor of Law, Southern Illinois University School of Law, John R. Vile - Chair, Department of
Political Science, Middle Tennessee State University, November 2002, 77 Tul. L. Rev. 247, lexis
To many observers ... judicial developments [restricting the scope of the Reconstruction Amendments] signified that the Civil War
amendments had failed. They did not override an earlier constitutional commitment to federalism and immediately produce a new
[*271] constitutional order based on equality. However, ... the Civil War amendments did enter the fabric of the Constitution. They
did enlarge the Constitution's authority and, as the South remained acutely aware, retained at least the potential for sanctioning change
... . Eventually, during the 1930s and 1950s in particular, the Civil War amendments would be reconsidered. They then served as the
legal foundation for a new structure of federalism and civil rights that would have been much harder, indeed perhaps impossible, to
establish without them. n105 Moreover, the Reconstruction Amendments, under-enforced though they were, were not totally without
effect. In the years after their ratification and before Brown, the Supreme Court did, on occasion, strike down state laws on their
authority. n106 One should add that while we are rightly inclined to disparage the doctrine of "separate but equal" announced in the
Plessy case, it is quite possible that, had there been no Fourteenth Amendment, the Supreme Court would have permitted states to
separate the races without even a bow in the direction of equality. Arguably, the demonstration that "equal" in the doctrine of
"separate but equal" (clearly the direct result of the language of the Fourteenth Amendment) would never result in true equality as long
as races were "separate" was one of the most important factors that led to this doctrine's eventual demise. n107 [*272] Though these
efforts fell far short of the promise of equality embodied in the amendments, it is difficult to imagine the success of even those efforts
- minor and halting though they were - had the amendments not been available for use by the Court. Certainly, Congress and the
President at the time of these decisions were not inclined aggressively to promote civil rights. Thus, if the Reconstruction
Amendments initially fell woefully short of their promise, perhaps they were not the failed irrelevancies that Strauss portrays either.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
15/64
SOLVENCY – ENVIRONMENT
Amendment solves the “right to a healthy environment”
Portney and Harrington ’95 (Paul Portney, Ph.D., Economics; Chairman, Environmental Economics Advisory Committee of the
EPA; Vice President, Resources for the Future, and Winston Harrington, Senior Fellow, Environment Division, Resources for the
Future; Ph.D., Regional Planning, 1995, Policy Studies Journal 23(1), Proquest)
The philosophical problem is whether it makes sense to treat risk-free levels of air and water quality—even if they could be
identified—as inalienable rights in the same sense as freedom of speech, the right to lawful assembly, or the right to vote. In fact,
those who object to a balancing approach to environmental standard-setting often put forward the argument that we did (or do) no
such balancing in establishing and protecting the basic freedoms guaranteed in the Constitution. Some environmental organizations
even have promoted the idea of a constitutional amendment affirming the "right" to a healthy environment.
This is exclusively the only way to solve – the single action of the aff is woefully inadequate
Walder ‘5 (Bethanie Walder, Executive Director, Wildlands CPR; Faculty Affiliate, Environmental Studies Department, University
of Montana; Founding Member, Women’s Voices for the Earth; Executive Commitee, American Lands Alliance, “Enshrining the
Environment,” http://lowbagger.org/enshriningenvironment.html)
If, as the Dalai Lama says, a clean environment is a human right like any other , why is that right not pro-tected in the United States, or, for that matter, in
every country of the world? To pass on a healthier world, it may be time to shift conservation strategies and start thinking about fundamental structures that could
change the way we Americans interact with, protect, use and destroy our natural environment. / The United States Constitution contains a Bill of Rights
that guarantees 10 fundamental rights to all American citizens. Yet, though citizens have private property rights, nowhere do we have an explicit
right to a clean and healthy environment, which could also be called an explicit “common property” right—a term Sen. Gaylord Nelson used
when proposing the first environmental “common property” constitutional amendment in the early ‘70s. Living in America, we continually talk about our inalienable
rights (as described by the Declaration of Independence) to life, liberty and the pursuit of happiness. One could argue that a clean environ-ment is implicitly necessary
to achieve these rights, but until we make common property rights explicit through, say, a constitutional amendment, we will continue to
fight our battles—over road and off-road vehicle projects, timber sales and whether to cut greenhouse gasses, clean up rivers and
reduce air pollution—one by one. / Constitutional protection of the environment would fundamentally change the way this country
approaches environmental management, protection and even degradation. It would force us to talk about environmental protection at
every level of American society. If we reached the point where 38 states support a constitutional amendment, we would have moved beyond a marginalized
environmental movement. And we know a constitutional amendment could protect the environment because of the precedents seen in the
12 U.S. states and at least 130 countries that have adopt-ed constitutional protections for the environment. / The state of Montana, for example,
rewrote its constitu-tion in 1972, during the height of the civil rights and environ-mental movements. The new state constitution recognized Montanans’ right to a clean and healthful
environment. For more than 20 years this right sat idle, untested in the courts. Then in 1995, a mining company began pumping toxic water from three deep test wells directly into two streams.
The discharged water was loaded with arsenic and other toxins, but the state granted mixing zones large enough to dilute the impact to the streams at the point of testing. Conserva-tionists sued
the state, arguing that the pumping of polluted water into these streams was unconstitutional. / In 1999, the Montana Supreme Court issued a unanimous ruling upholding Montan­ans’ right to a
clean and healthful en­vironment. In an opinion written by Justice Terry Trieweiler, the Supreme Court concluded that: “Our constitution does not require that dead fish float on the surface of
our state’s rivers and streams before its farsighted environmental pro­tections can be invoked.” The Court also said: “We conclude that the [constitutional convention] delegates’ intention was
to provide language and protections which are both anticipa-tory and preventative.” The high court’s decision made it clear: The people of Montana have a fundamental right to a clean and
healthful environment. / In the early 1970s, and again in the mid-1990s, citizens made unsuccessful attempts to amend the federal constitution to protect the environment. These efforts—which
ranged from politicians introducing congressional bills to conser-vationists and Native American tribes fo-cusing on the cause—all came to no avail. Make no mistake: Passing an amendment
to the Constitution is an extraordinary chal-lenge—it’s only been done 27 times in our history. The process is long and complex. First, the amendment must be approved by two-thirds of the
House and Senate (the president has no veto power over amend-ments). The amendment is then sent to the states, and 38 of them must endorse it through their legislatures, typically within a
specified time frame. / You may be quick to remember the failed Equal Rights Amendment. In 1972, Congress passed the amendment and gave the states seven years (and later a three-year
extension) to ratify the amendment. When the time was up only 35 states had passed it, and the effort died. The anti-amendment effort coordinated by the conservative right served as a
coalescing force for this then-nascent wing of the Republican Party. / But the fact that the Equal Rights Amendment failed does not necessarily spell doom for a constitutional amendment that
would protect the environment. In fact, a
coordinated national effort to gain protection of the environment could serve as a uniting force for the
disparate arms of the environ-mental movement. The conservation wing of the movement is often woefully detached from
everyday Americans’ lives. We fight for wilderness, and against logging, mining, grazing and even industrial-strength recreation. But at this point in time, it is
rare that conservation or public lands protection activ-ists work together with Native American activists, folks ad-dressing corporate pollution in low-income
neighborhoods or human health activists, for example. Combining forces with the rest of these communities to push for a constitutional
amendment would allow all Americans to vote for something positive on Election Day. / Already, activists from various backgrounds have been
calling for such an effort. For nearly a decade, Native Ameri­cans have been proposing a “Seventh Generation Amend­ment” to protect common property rights. They
point out that the Fifth Amendment to the Constitution protects private property, yet no such protections exist for common property. And Defenders of Wildlife
President Roger Schlickeisen makes the following point about such an approach: “Perhaps most importantly, it could serve as a catalyst, prompting the nation to move
toward embracing an ecological morality to comple­ment its social morality.” / If we could pass a constitutional amendment protecting our right to live on a clean and
healthy planet, we may then be able to change the way we address other issues. Perhaps it would be easier to gain funding for road removal and resto-ration, for
example, because we’d have a constitutional basis on which to make those requests. / What would our strategies and tactics look like if we started solving
environmental problems using a long-term approach like this? Could Wildlands CPR make room to take on one small part of a much larger campaign to amend the
American Constitution? What if all health, environmental, corporate and other interested groups each put 5 percent of their organizational efforts toward such a cause?
I’d like to think that a coordinated effort to pass a constitutional amendment could reshape the way conservationists interact with all of the other people out there
working to make this world a better place. More important, I’d like to think that an amendment could fundamentally reshape the way Americans
treat the environment.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
16/64
SOLVENCY – DISABILITIES
Amendment solves rights for people with disabilities and special needs
Martin ‘8
(David Martin, Staff Writer, Kansas City News, http://www.pitch.com/2008-04-10/news/missouri-state-rep-jeff-grisamore-uses-thedeath-of-his-infant-daughter-to-ask-for-campaign-cash/)
Upon taking office last year, Missouri State Rep. Jeff Grisamore went to work for the vulnerable. The first bill he sponsored would
have expanded the number of families eligible to receive child-care assistance. / Grisamore, a Lee's Summit Republican, didn't let
party politics stand in the way of what he likes to call "responsible compassion." More than half of the bill's 56 co-sponsors were
Democrats. / The bill died in committee, but Grisamore has continued to work on behalf of people who face adversity. Five of the 10
bills he has sponsored in this session concern the disabled. / Grisamore says the disabled and the mentally ill should receive the first
portions of the state budget. "Instead, they end up having to fight for crumbs off the table," he tells me. / It's about 6 p.m., and
Grisamore is sitting in a chair in his office at the Capitol, a Diet Coke within reach. The House has broken for dinner. With a long list
of bills on the docket, Grisamore expects the workday to last until midnight. / This is a busy time for state lawmakers. In addition to
their legislative duties, there's an election to consider. Grisamore recently sent out an "urgent message" asking for campaign
contributions. / "Fighting for individuals with disabilities — especially children — and their families is my highest priority," the email began. / Grisamore then connected his request for money to the death of his daughter. / "This passion is driven by our 7th child,
Rebekah, who died November 26th, 2002 from complications of Prader-Willi Syndrome at 11 months and 18 days." A picture of
Rebekah appears at the top of the e-mail, along with Grisamore's head shot. / Prader-Willi syndrome is a genetic disorder
characterized by obesity and decreased mental capacity and muscle tone. At birth, children who suffer from the condition appear small
and floppy. An intense desire for food develops later, leading to excessive weight gain and associated health problems. / Rebekah
suffocated after her body failed to digest a bottle of milk. Grisa-more and his wife, Mary, arranged for her organs and tissue to be used
for research. A feature story last month in The Kansas City Star explained that she was the only infant with Prader-Willi available for
study. / Grisamore tells me that Rebekah's life and death inform a lot of what he tries to do in Jefferson City. A Bible-school graduate
who is active in mission and nonprofit work, Grisamore says he wants to be an "advocate for the elderly," "a champion for children"
and a "defender of the disabled." Grisa-more says his daughter's plight "took [his] empathy and commitment for families with special
needs to a whole new level." / Grisamore's commitment is admirable on its face. But at what point does his talking about his daughter
become exploitive? / Last November, Grisamore wrote an "As I See It" piece for the Star stressing the importance of organ donation.
The column began with a description of the Grisamore family weeping, praying and launching balloons at Rebekah's grave site. / The
recent feature story about Rebekah's gift to science closed with Grisamore talking about organ-donation legislation he's trying to pass.
/ And then comes the fundraising letter. / "To continue my fight for the disabled and their families, I need to raise significant funds for
my re-election this year," Grisamore writes. / Encouraging people to donate their organs is one thing. Using Rebekah's story to hustle
for campaign cash seems to be quite another. / Grisamore tells me that he sent the message to four people who work with and on
behalf of those with special needs. But with a boldface request that readers forward it, the e-mail was obviously intended for a wider
audience. / He says he's trying to appeal to a base of the disabled and their families. What others might find crass he describes as an
effort to build grass-roots support. "The reality of politics is that in order to be re-elected, you've got to raise money," he says. / A
suburban evangelical and father of eight, Grisamore can surprise you. His coherent rejoinders to criticism on left-leaning blogs suggest
a brand-name law degree, not matriculation at Trinity International University, a divinity school in Deerfield, Illinois. (Last fall,
lawyer and Democrat Steve Bough lauded Grisamore for responding “thoughtfully, intelligently and professionally” to a post on Blog
CCP that took Grisamore to task on a variety of issues, including his pay as a nonprofit executive.) Grisamore's gelled hair and five
o'clock shadow bring to mind a raffish lobbyist more than a churchgoing Republican. / And unlike many conservatives, Grisamore
believes that government can accomplish things. / He talks about a constitutional amendment to mandate spending for those with
disabilities and special needs. "I'm here to create a revolution for these folks," he says.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
17/64
SOLVENCY – HOUSING
This solves at all levels – and specifically results in the aff while avoiding overrule.
David Bryson, Deputy Director, National Housing Law Project, 2006, “The Role of the Courts and a Right to Housing,” from A Right
to Housing, p. 206-9
As the preceding review has shown, the courts have played an important role in laying the groundwork for elements of a Right to Housing. The right has been recognized by international
bodies (United Nations 1948, 1976; Craven 2003; Leckie 2003), and Congress in 1949 declared the National Housing Goal to be “the realization as soon as feasible…of a decent home and a
it is not unreasonable to anticipate that eventually the United
States will make the judgment that everyone is entitled to a decent home and that the societal judgment will become embodied in a
constitutional amendment or a statutory enactment. If that happens, the courts will have a significant role to play in the further
development, implementation and realization of that Right to Housing. The courts will have extensive responsibility to work out the details of what such a right
means. Part of that responsibility will focus upon the obligations of the providers of housing —the landlords, the developers and the financiers. In
suitable living environment for every American family” (U.S. Congress 1949). Given this background,
developing the common law of real property (a quintessential function of the judiciary), the courts, relying upon the constitutional or statutory Right to Housing, are
likely to adjust the rights of landlords and tenants so as to require good cause for all evictions, not only evictions from some subsidized housing, and thus create greater
security of tenure. It also is likely that the courts would further develop the right to habitable conditions in both rental and sales housing,
as a matter of common law and interpretation of the new Right to Housing. Another part of the development and implementation of a Right to Housing will
concern the obligations of governments, local, state and federal. For example, litigation might eventually establish municipal liability for poor housing conditions. In cases where a city has cut
back on code enforcement, which has happened in many cities with the shrinkage of municipal resources, one could ask courts to intervene to make code enforcement effective. The first step
would be to ask the court to order the code enforcement agency to perform its statutory duties. If necessary, one could ask that the agencies be placed into receivership, as has been done with
housing authorities, school districts and jails. Because strict code enforcement can drive up the costs of housing beyond the reach of poor people (Hartman, Kessler and LeGates 1974), it would
be valuable to use the government’s past failure to enforce the codes so as to establish municipal responsibility to fund needed repairs. If it becomes impossible to secure funding from the local
government in that fashion, one would have to be careful to combine the litigation strategy with a plan to secure funds in other ways, possibly from the city’s Community Development Block
Grant program or from the state. That would lessen the risk that strict code enforcement would displace poor people from their homes. Coordinating the litigation with the efforts of
community-based nonprofits to acquire deteriorated buildings and repair them would also guard against displacement. Relying upon a constitutional or statutory declaration of a Right to
From a constitutional Right to Housing, the courts also may
develop local government responsibility to ensure security from crime. The provider of housing may have certain responsibilities
regarding security—for example, installing and maintaining adequate locks and lighting—but landlords’ and developers’ ability to protect residents from criminal
activities is limited. Courts interpreting a constitutional Right to Housing would eventually have to decide what obligations a local
government must assume in that regard. A similar analytical process would be undertaken with respect to other neighborhood conditions. As attributes of a Right to Housing
Housing could help lead to the impositions of financial liability upon local, state or federal governments.
that relate to location work their way through the judicial system, there will be details regarding local governments’ obligations to ensure adequate municipal services, insulation from
environmental hazards and accessibility to commercial and professional facilities. New life may be breathed into the original equalization of municipal services cases. More work also will be
done on the remedies for those local governments and public housing authorities that have operated racially segregated housing systems since the 1930s. Strategies need to be developed, now
that the federal government is putting so much effort into tearing down large components of those systems, to impose liability upon the government agencies involved to replace the demolished
units with decent, affordable housing that is made available to the individuals and groups that have suffered the discrimination in the past. It also may be possible to expand the bases for
governmental liability beyond their having operated segregated public and assisted housing programs. Many other governmental actions have contributed to racial segregation in housing and
the unequal neighborhood conditions that people of color have suffered and are still suffering. One example is stimulation of the development of virtually all-white suburban neighborhoods of
single-family homes with racially restricted FHA and VA mortgage insurance and guarantees, the funding of highways and other commuter transportation systems and the maintenance of the
federal and state mortgage interest deductions and other tax deductions that made homeownership affordable to the white middle calss. Another is government choice to locate highways,
industry, waste disposal facilities and other uses with deleterious consequences in or near neighborhoods where people eof color live, while withholding from such neighborhoods the services
and funding that they need to be equally decent places to live (see South Camden Citizens in Action). A third is the use of state governmental power to establish separate local governments with
their own taxing and spending powers that enable the more wealthy, predominantly white communities to achieve residential environments that are in better physical condition, more secure
Litigation based upon these theories
would be ambitions to say the least, but achieving a Right to Housing that includes freedom from discrimination will add strength to
the litigation theories. Perhaps the most important attribute of a Right to Housing will be the provision of financial assistance to low-income people by the government. Important, and
from crime, better served by governmental agencies, more endowed with commercial facilities and, of course, served by better schools.
likely necessary, steps can be taken to restrain housing costs and to make the provision of housing more efficient and thus less expensive. Ultimately, however, a government will have to step
in to fill the gap between what poor people can afford and what decent housing costs. The major role with regard to those financial responsibilities will be that of the legislatures—that is,
appropriating the funds and designing effective housing assistance programs. But, as the experience with current housing programs demonstrates, the courts also will have to become actively
They will have the responsibility to hold the legislature accountable for performance of its constitutional and statutory duties
and to interpret the resulting legislative guarantees of affordability in particular situations. The courts also will have the responsibility
of deciding whether legislative determinations are consistent with constitutional provisions, particularly the due process and takings
clauses, which protect against deprivation of property without due process of law and against takings save for public use and with just
compensation (Smizik and Stone 1988; Budlender 2003). Interpreting either the federal or state constitutions early in the 21st century,
the courts also may establish that tenants cannot be evicted by state courts unless they are represented by counsel, including appointed
counsel for indigent tenants. In doing so, the courts would be building on the 20th century doctrine they established that tenants cannot be evicted without court
proceedings. The strongest cases would be those in which governmental landlords, such as public housing authorities, are seeking evictions. Then a favorable
ruling could eventually be carried over to other landlords, on the grounds that use of the state courts for eviction constitutes sufficient
governmental action to bring the due process clause into play. Eventually, the doctrine might be extended to low-income homeowners
facing foreclosure of their mortgages. If such rights were established, tenants and homeowners would be much better able to enforce their housing rights. They would be better
involved.
able to defend against unlawful evictions, whether these were retaliatory, discriminatory or otherwise unlawful. If a right not to be evicted without cause were to be established, it could be
enforced much more effectively if the tenants were guaranteed legal representation. Tenants could more effectively enforce the warranty of habitability if counsel were available to raise breach
of the warranty as a defense to evictions for nonpayment of rent. Homeowners could more effectively resist foreclosure in cases where the defaults are beyond their control and alternatives to
foreclosure are available. Judicial establishement of a right to counsel in housing cases would be crucial to full realization of any constitutional or statutory Right to Housing.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
18/64
SOLVENCY – DISASTER RELIEF
Amendment is the only way to solve – core constitutional failure in coordination dooms the aff
Griffin ‘7 (Stephen Griffin, Rutledge C. Clement Professor in Constitutional Law, Tulane Law School, 2007, “Federalism Past,
Federalism Future,” 21 St. John's J.L. Comm. 527, ln)
Most of us have grown up in a world in which federal assistance in time of disaster is taken for granted. Consider the primary
conclusion of the House Select Committee: "Our investigation revealed that Katrina was a national failure, an abdication of the most
solemn obligation to provide for the common welfare." n44 This conclusion implies that the nation fell [*537] short on a key
constitutional commitment. But is this conclusion consistent with historic understandings of federalism? To put this in a more pointed
way, when did the national government formally commit itself to having primary responsibility for the welfare of the people of the
states? Of course, the Committee could not point to a constitutional amendment or a widely understood legal commitment
originating from the Preamble to the Constitution. / The Committee report is quite revealing on this score. As noted above, the
Committee argued that the federal government must respond "proactively" n45 to a disaster like Katrina. Yet when discussing the
military's role, the Committee made this general remark: "The Select Committee does not believe there is a simple answer to
improving state and federal integration. Local control and state sovereignty are important principles rooted in the nation's birth that
cannot be discarded merely to achieve more efficient joint military operations on American soil." n46 Thus, the Committee's report
points ultimately in two directions - both toward greater federal responsibility in time of national catastrophe and toward a continued
essential role for state and local governments. How could it be otherwise? The Committee could not by itself surmount the conflicts
inherent in American federalism. / Why was the Committee confused in this way? The answer lies in the process of constitutional
change. n47 When it criticized the national response, the Committee invoked a value system that was a product of informal twentieth
century constitutional change and was not implied by anything in the text of the Constitution. This kind of criticism would not have
occurred to anyone in the eighteenth or nineteenth centuries. During the twentieth century and especially during the New Deal, the
constitutional order changed in a somewhat helter-skelter unplanned fashion. Certainly no constitutional amendment was approved
that might have provided firm legitimacy and guidance to the federal government's new power. The formal structure of American
federalism remained intact. / [*538] And so it is still the case that when natural disasters strike, the divided power of the federal
structure presents a coordination problem. The kind of coordination that had to occur to avoid the Katrina disaster requires long-term
planning before the event. The American constitutional system makes taking intergovernmental action difficult and complex.
The process of coordinating governments can take years. In many ways, the government was just at the beginning of that process at
the time of Katrina, n48 although we are now four years distant from the terrorist attacks of September 11, 2001 that set the latest
round of disaster coordination in motion. / Suppose, however, that we don't have the luxury of taking the time to satisfy every official
with a veto. This is the key point of tension between what contemporary governance demands and what the Constitution permits. The
kind of limited change that occurred in 1927 can take us only so far. What Hurricane Katrina showed was that even after decades of
experience with natural disasters, the federal and state governments were still uncoordinated and unprepared. The reasons they were
unprepared go to the heart of the constitutional order.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
19/64
SOLVENCY – LEGAL SERVICES
Amendment solves legal services and right to council – we should follow Armenia’s lead in a universally representative
amendment
Parker ‘6 (Kyle Parker, Policy Advisor, United States Helsinki Commission [also popularly known as: Commission on Security and
Cooperation in Europe], 2006, “United States Mission to the OSCE,” http://osce.usmission.gov/media/pdfs/statements-athdim/hdim_sessions6and7_10_05_06.pdf)
The availability of legal assistance and timely and enforceable judgments are basic aspects of a society rooted in a respect for justice.
/ Although the right to legal counsel is a recognized fair trial guarantee found in the legislation of nearly all OSCE participating
States, the practical implementation of this right often falls short. In too many participating States competent and independent legal
counsel remains out of reach for those who need it most. This deficiency is further complicated by the reality that, in many cases,
judgments are unduly delayed and then only selectively enforced. Such shortcomings in the judicial process reflect poorly upon the
very systems that produce them and undermine the security that a law-based society can and should provide. / It is well known that
early access to legal advice in the course of criminal proceedings can help guard against illegal treatment and forced confessions –
abuses that, unfortunately, are systematic in Uzbekistan and Turkmenistan and persist in Belarus. / In Uzbekistan, for example, the
handling of the Andijon trials raises serious concerns about the Uzbekistani government’s failure to protect defendants’ rights. In
particular, we note ODIHR’s valid concerns regarding the lack of readiness of Uzbek authorities to ensure the defendants’ right to a
lawyer in pre-trial stages and the right to effective legal counsel. The United States notes the conclusions of the ODIHR trial
monitoring report and urges the Government of Uzbekistan to take immediate steps to redress these serious deficiencies. / The number
of political prisoners in Belarus increased over the past year. Its judiciary does not operate independently. Trials, including those of
political figures, are often closed to the public. As for Turkmenistan, we will address its abuses in a separate statement. / Despite
discouraging setbacks, however, the past year has seen achievements in the area of expanding access to legal assistance. An
illustration of this is Armenia’s November 2005 decision to adopt a constitutional amendment guaranteeing each citizen the right
to legal assistance. Additionally, this past June, a bill on state legal assistance was introduced in the Moldovan parliament and in the
same month the Ukrainian president approved an important concept paper on improving legal assistance. Albania and Bulgaria have
also made progress in making their criminal justice systems more accessible and efficient. These initiatives are steps in the right
direction, but in each case much hard work remains. / We acknowledge that the maintenance of the rule of law is an ongoing process
requiring constant vigilance. The United States, in fairness, also recognizes that no judicial system is perfect nor should there be a
“one size fits all” approach for 56 different countries. But that cannot be an excuse for complacency. / Indeed, it was only in the 1963
landmark case of Gideon v. Wainwright that our Supreme Court unanimously ruled that states are required by the Constitution to
provide attorneys in criminal cases for defendants unable to afford their own representation. This historic decision made our criminal
justice system more open and democratic. / Certainly, we must all strive to constantly improve our legal systems and in this effort,
the United States stands ready to share its experience and to continue to stand alongside those pursuing a more just society.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
20/64
SOLVENCY – HEALTH CARE
The right to health care should be a constitutional amendment.
Jackson in 8 <Jesse (Congressman, seven term Member of Congress serving on the Labor Health and Human Services
Appropriations subcommittee, co-author with Frank Watkins of A More Perfect Union, Advancing New American Right) The
Huffington Post, “Building a New Wall: The Fundamental Right to Healthcare,” November 26, 2008,
http://www.huffingtonpost.com/rep-jesse-jackson-jr/building-a-new-wall-the-f_b_146606.html>
Because our current economic crisis is forcing us to think outside the box, one topic worthy of renewed discussion is health care. What
if the Constitution said: "All citizens shall enjoy the right to health care of equal high quality and the Congress shall have the power to
implement this article by appropriate legislation?"
Beyond the obvious benefits of greater and better health care itself, imagine the economic consequences: thousands of doctors and
nurses being trained; new medical colleges established and older ones expanded; increased medical research; a massive preventive
health care industry springing up; new hospitals in needy urban and rural areas with the private sector, federal, state, county and local
governments all working cooperatively under the authority granted by the Constitution and Congress.
The absence of this human right as a health care constitutional amendment has major economic consequences as well. Preventive
medicine is almost entirely missing from our current health care system, which costs taxpayers billions.
Of course, even without an amendment, Congress can pass legislation granting universal and comprehensive health care to all
Americans. That's possible and candidate Barack Obama promised to do so in his first term in office. However, while high quality
health care for all Americans can be established without a constitutional amendment, it can't be sustained without such an amendment.
Future presidents and Congresses are under no legal obligation to continue past legislative programs. For the new wall of health care
to be built and sustained for as long as the nation exists it must have a constitutional foundation!
How can we afford such a system? Without a constitutional right to health care we already spend nearly twice as much as any other
developed nation in the world -- about $2.5 trillion or 16% of our GDP -- yet nearly fifty million Americans are without health
insurance and often receive their care in the most expensive manner possible, in the local hospital emergency room.
With a health care constitutional amendment, instead of plugging a hole in the dike, we would be building a wall with a strong and
solid foundation. Instead of spending money on more band-aids, a revised Constitution would give direction to a unique American
purpose and, over time, solve an historic problem. And with American innovation we could put millions of Americans to work
expanding a more balanced economic system on the solid foundation of health care for all. Health care would be a human right
protected by the American people in our Constitution.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
21/64
SOLVENCY – FULL EMPLOYMENT
Amendment solves full employment.
Quigley ‘3 (William Quigley, Janet Mary Riley Distinguished Professor of Law and Director of the Law Clinic and Gillis Long
Poverty Law Center @ Loyola University; Chair, Louisiana Advisory Committee, US Commission on Civil Rights, 2003, Ending
Poverty As We Know It, p. 137-141)
The Constitution enshrines the highest goals of this nation. This nation has always valued working to earn enough to secure a dignified
living. A constitutional amendment guaranteeing every person the right to work and to earn a living wage simply yet forcefully
elevates accepted American principles to protected rights. / It is very important to reaffirm that these two principles must be kept
together, for the right to a job without a right to a living wage is just as weak as the right to a living wage without a job. Both rights
must remain intact and linked together. / So how might such a constitutional amendment work? / Fortunately for us, our nation has
amended its Constitution on other occasions and this amendment would follow the same process. The exact meaning of these rights
would be decided by the same combination of constitutional bodies that decide the exact meaning and implementation of our other
constitutional rights: Congress, the executive branch, and the judiciary. Implementation of this amendment would operate in the same
way as other constitutional obligations, with considerable care, deference, and judgment. / The initial steps of implementation would
be the responsibility of the legislative process knows, it is a process that produces unpredictable outcomes. Those with interests in the
amendment would be expected to propose ways to make it come alive that would benefit their particular perspective. Some business
interests would likely try to get tax relief for their part in providing employment, while others will no doubt try to frustrate and delay
implementation and still others will come up with innovative ideas not yet considered. Employees, labor unions, and social welfare
organizations will certainly try to influence the legislation in accordance with their own agenda as well. Proposals will be made for
public employment, subsidized private employment, higher minimum-wage floors, and tax credits. As in all legislation, compromise
will result. / The executive branch will then be called upon to develop the details of administering the laws and to give oversight of
how the new laws are operating. Administration of the laws would likely be by the departments of Commerce, Labor, and the
Treasury. / The judiciary would carry out its traditional role of evaluating actions in purpose and practice to ensure they are consistent
with the Constitution. Even though judicial interpretation and enforcement of a constitutional right to work for a living wage would be
unprecedented, legal scholars point out that enforcing social rights requires the same degree of judicial action as enforcing civil rights.
/ As a part of the U.S. Constitution, the right to a job at a living wage would be a legally enforceable right for all citizens . What exactly
that means would depend on what Congress does, how the laws are implemented, and whether the courts are consider the laws constitutional. / Then, most likely, as
with all the rest of our constitutional rights, this entire process would start over again as experience demonstrates what works and what does not. Congress, the
executive branch, and the judiciary would have this constitutional right on their continuing agenda in the same way as other laws. How we as a nation reconcile our
constitutional principles with the changing realities occurs every day. For example, Congress, the president, and the judiciary are now grappling with how the First
Amendment applies to the internet. Obviously, when our nation enacted the First Amendment, the internet was not contemplated. But we will work out a
constitutionality acceptable approach. For the right of every person to a job at a living wage, there would be evolving realities as well: What is most cost effective and
what is the least. What is most politically palatable and what is less so. / As noted throughout this book, many wise people have already given consideration to a right to
a job at a living wage. / Rep. Jesse L. Jackson Jr. has advocated amending the U.S. Constitution to provide a right to a job at a living wage based largely on the excellent
analytical work of Gertrude Schaffner Goldberg and Shelia D. Collins and on the agenda of the National Jobs for All Coalition. The Labor Party has been advocating
for a constitutional amendment for a right to employment at a living wage of $10 an hour for years. / Professor Charles Black makes some telling observations in the
context of his arguments for a constitutional justice of livelihood based on the present Constitution: /I rather guess that my self-chosen task, for the rest of my years as a
constitutionalist, is going to be arguing, in all weathers, the case for the proposition that a constitutional justice of livelihood should be recognized, and should be felt by
the president and by Congress as laying upon, them serious constitutional duty. In the early phases of the work, I find I am most often asked the question, “How much?”
or “Where will you draw the line?” I think it well to try to suggest, at the beginning, that the establishment of a duty is one thing, while the specification of prudent
quantities and means is another—though it must be remembered as well that the decently eligible range of means and measures is one thing when you are under no duty
at all to act, and quite another when you are under a serious duty to act effectively. / Once we amend the Constitution, we are under a serious duty to act. / Ways
Congress Might Act / For Congress, the possible ways of enacting laws in support of this right to a job at a living wage ware limitless. / As several professors have
noted, this is more about the will than the way: / Many technical tools are already available to attain full employment and, with a will to do so,
others can be discovered. When U.S. elites wanted to send a human being to the moon or to develop high-tech weapons… major
research efforts were made; when medical scientist lack a cure for an epidemic disease, research funds are provided. But when faced
with unemployment, some economists, governments and the corporate interests that they often reflect proclaim it cannot be cured or
does not exist or it is “natural.” / A constitutional right will give us the will to explore the many technical tools that we can use to
achieve full employment./ There are dozens of resources on ideas about how our nation can increase employment and wages for the
millions of people who are working but still poor. These ideas range from public job creation to private job subsidies and involve all
combinations of raises in the minimum wage, refundable tax credits for the working poor, tax credits for hiring people by private
businesses, and wage subsidies for private employers. Full employment at good wages is entirely possible. It is not primarily an
economic issue but a political one. / These are thoughtful and creative ideas. But the critical need in America right now is not just for
ideas, which many talented people have provided, but for the will and the mechanism to implement these ideas. This constitutional
amendment will offer a way for our nation to firmly demonstrate its commitment to the principle that every person who wants to work
can, and every person who works full-time will earn enough to be self-supporting.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
22/64
*** ANSWERS TO ***
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
23/64
AT: PERM 1/2
1. Simultaneous action still links – the court would look like total fools by attacking a decision at the same time the constitution
was being amended. Thrusting awkwardly into the middle of ongoing national dialogue is exactly the cross-branch SOP
violation that triggers our perception link.
2. They’ve cited grounds that they rule on, which means that either the perm doesn’t shield the link because they’re stuck with
the overrule or the perm severs out of those grounds – voter – it’s infinitely regressive and makes the aff a moving target – we
can’t pin them down.
3. Mootness Doctrine
a. Perm breaks it
Watson ‘91
(Corey Watson, Associate @ Kirkland and Ellis LLP, 1991, “Mootness and the Constitution,” 86 Nw. U.L. Rev. 143, l/n)
A case becomes "moot" when "its factual or legal context changes in such a way that a justiciable question no longer is before the
court." n32 [*147] Defining mootness as the absence of a justiciable issue, however, merely raises the question of what is meant by
the term "justiciability." n33 The Supreme Court has distinguished a justiciable controversy "from one that is academic or moot." n34
Accordingly, a justiciable controversy is one that is "definite and concrete, touching the legal relations of parties having adverse legal
interests." n35 The controversy must be "real and substantial[,] . . . admitting of specific relief through a decree of a conclusive
character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." n36 The rule that a
court will not decide a moot case is recognized in virtually every American jurisdiction. n37
b. Links to the disad and dissolves the Constitution
Watson ‘91
(Corey Watson, Associate @ Kirkland and Ellis LLP, 1991, “Mootness and the Constitution,” 86 Nw. U.L. Rev. 143, l/n)
From this core meaning, according to the model, have sprung various interpretative doctrines which, when taken together, flesh out
the meaning of the case and controversy clause. These doctrines are incorporated under the broad label of "justiciability." The doctrine
of mootness, a species of justiciability, is umbilically attached to the case and controversy clause and is thus subservient to article III
of the Constitution. n113 Hence, the relationship between the mootness doctrine and the Constitution is symbiotic: the Constitution
gave birth to the doctrine of mootness while the doctrine itself illuminates the limitation of federal judicial power. Although
courts are permitted to entertain prudential considerations when deciding questions of jurisdiction, n114 the model forbids courts
from allowing prudential concerns to compromise the fundamental principles of article III. n115 Consequently, whether a case is
justiciable is a threshold question throughout the judicial proceeding which must be answered affirmatively for a court to assume
jurisdiction. n116 [*158] The textual constitutional model, therefore, contends that the language chosen to formulate the Constitution
has particular significance. Attempts to manipulate this language by superimposing specific value systems n117 or by tossing
prudential factors into the constitutional calculus n118 dissolve the integrity of the Constitution itself. The Constitution retains
flexibility by establishing procedures for its amendment, and judicial or scholarly glosses which essentially rewrite the Constitution
circumvent the amendment process. Such circumvention, the model asserts, is violent to democratic and representative ideals.
c. Constitutional violations are an absolute side-constraint – as a policymaker you cannot vote for the permutation
Levinson in 0 <Daryl Levinson, Associate Professor, University of Virginia, 2K, University of Chicago Law Review Spring 2000>
Extending a majority rule analysis of optimal deterrence to constitutional torts requires some explanation, for we do not usually think
of violations of constitutional rights in terms of cost-benefit analysis and efficiency. Quite the opposite, constitutional rights are most
commonly conceived as deontological side-constraints that trump even utility-maximizing government action. n69 Alternatively,
constitutional rights might be understood as serving rule-utilitarian purposes. If the disutility to victims of constitutional violations
often exceeds the social benefits derived from the rights-violating activity, or if rights violations create long-term costs that outweigh
short-term social benefits, then constitutional rights can be justified as tending to maximize global utility, even though this requires
local utility-decreasing steps. Both the deontological and rule-utilitarian descriptions imply that the optimal level of constitutional
violations is zero; that is, society would be better off, by whatever measure, if constitutional rights were never violated.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
24/64
AT: PERM 2/2
4. Courts ruling on an issue rather than upholding the amendment still hurts the democratic system of our government.
Worthen in 4 <Kevin J. (Professor of Law and Associate Dean, J. Reuben Clark Law School, Brigham Young University), BYO
Journal of Public Law, “Same-Sex Marriage Symposium Issue: Who Decides and What Difference Does It Make?: Defining Marriage
in “Our Democratic, Federal Republic,” 18 BYU J. Pub. L. 273, 2004, lexis>
[*306] As a practical matter, recent experience has demonstrated that state court judicial review of state statutes can too easily lead to
judicial resolution of the issue contrary to the will of the people and the legislature. n135 At least some state court judges appear to be
too eager to the resolve the issue for themselves, without a careful consideration of their proper role in the system. The risk of tyranny
of the judiciary is therefore somewhat high on such an impassioned issue. This, in turn, lessens the net benefit of a "double" judicial
security. More importantly, as a theoretical matter, in our system, the ultimate sovereign who must remain responsible for whatever
acts the government takes is the people. n136 While there are filters though which the people's judgment must pass before it is
properly implemented in our system, in the long run, it is their judgment, not that of the judiciary, which should control. If a state
constitutional amendment were adopted through the non-initiative process, the people's judgment would have passed through the
requisite filters, and federal judicial review would be available to further ensure that other more process-oriented norms were not
violated. Thus, while a proponent of "our democratic, federal, republican" form of government might be persuaded either way on the
matter, this particular proponent concludes that the optimum form of resolution of the same-sex marriage issue is to specifically
address the issue through a non-initiative generated state constitutional amendment.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
25/64
AT: PERM DO THE COUNTERPLAN
Its both textually and functionally severance- It textually severs “The US Supreme Court should” from the plan and it
functionally severs Court action
Severence is a reason to reject the team
a. Makes the aff a moving target- the affirmative can change any part of their plan to avoid any negative argument. This
skews fairness in that they could change their plan in the 2AR and we’d never be able to argue with them.
b. Infinitely regressive- allowing the aff to sever out of one part of their plan justifies them severing out of all but one
word of their plan text and claiming solvency from it. The neg would never win in such a world, which kills
competitive equity.
c. Education – we can’t have a meaningful and educational debate while the aff is running away from every good
negative argument.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
26/64
AT: CP LINKS TO LEGITIMACY
The counterplan preserves legitimacy—the plan cripples it
Vermeule ‘04
[Adrian, Prof @ Chicago Law, “Constitutional Amendments and the Constitutional Common Law,”
http://www.law.uchicago.edu/academics/publiclaw/index.html]
The “mutiny” metaphor here is Sullivan’s, and it is striking. What if the Supreme Court is Captain Bligh, and we are all Fletcher
Christian, to be condemned as mutineers no matter how grievous the provocation? Here is the argument behind the metaphor: We
have lasted two centuries with only twenty-seven amendments because the Supreme Court has been given enough interpretive latitude
to adapt the basic charter to changing times. Our high court enjoys a respect and legitimacy uncommon elsewhere in the world. The
legitimacy is salutary, for it enables the Court to settle or at least defuse society’s most ideologically charged disputes. 41 One of the
premises here is an argument about the supply and demand of constitutional change. Changing circumstances produce demand for
changing constitutional law. The supply of new constitutional law is limited; although many institutions participate in its creation, the
two most prominent sources are the amendment process, on the one hand, and judge-made constitutional law on the other. Those two
sources are at least partial substitutes: judicial updating reduces the demand for constitutional amendment, all else equal, just as the
Hughes Court’s switch in time may have pre-empted various New Deal reform proposals. The basic intuition about comparative
statics is sensible, and it is broadly confirmed by empirical work in political science. 42 But it does not at all support the conclusion
offered in the remainder of the passage. We may reconstruct the argument as follows: (i) judicial updating of the Constitution is at
least a partial substitute for formal amendments; (ii) formal amendments reduce judicial legitimacy; (iii) maximizing judicial
legitimacy is good for the polity as a whole. Of these, only (i) is explicit; and there is a further assumption, which I will not question,
that “legitimacy” is to be interpreted in a purely sociological sense—as something like the Supreme Court’s standing in opinion polls
over time. Even if (i) is correct, and I believe that it is, the current state of the evidence gives us little reason to subscribe to (ii). There
is no reason to assume, a priori, or to believe, empirically, that the use of the amendment process tends to undermine the judiciary’s
legitimacy. (I also bracket the large question raised in (iii), whether maximizing the Court’s legitimacy is good for the larger polity).
Premise (ii) embodies the nirvana illusion that afflicts generic arguments against amendment. Here the illusion takes the form of the
unjustified belief that the Court’s (sociological) legitimacy is necessarily at a maximum so long as no outside agitators produce
amendments that intrude upon judicially-managed change. On this assumption, the Court’s public standing is diminished whenever
the amendment process produces outcomes that differ from those the Court would independently choose—perhaps because the
amendment effects a visible public rebuke to the judiciary. Behind this assumption doubtless lurks some sort of picture in which
amendments enacted to overturn particular Supreme Court decisions (such as the 11 th and 16th ) reduce the Court’s public standing.
here is another side to the ledger, however. Premise (i) holds that the lower the rate of amendment, the more updating that the Court
must supply; and the need to update constitutional law can itself damage the Court’s public standing in straightforward ways.
Overrulings, switches in time, creative and novel interpretation, all the tools that judges use to change the course of constitutional
adjudication, themselves may draw down the Court’s political capital by fracturing the legalistic facade of constitutional
interpretation. An equally plausible causal hypothesis, then, is that increasing the rate of amendments might increase the Court’s
sociological legitimacy by reducing the need for judicial selfcorrection. In particular cases, legitimacy-granting publics might react
poorly to judicial flip-flops, while viewing formal amendments that overturn judicial decisions as the proper legal channel for
change—the very use of which assumes that the judges have done their job well, not poorly. This is rankly speculative, but the point
is that (ii) is rankly speculative as well. It is hard to know about any of this in the abstract; but we cannot simply assume (ii), in the
faith that a world without (nonjudicial) amendments is the best of all possible worlds to inhabit.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
27/64
AT: ROLLBACK
1. Fiat is durable – it’s the best model
a. Reciprocity- the Congress/executive/lower courts could just rollback the aff – vote neg on presumption
b. Education- ensures debate about should questions rather than would questions
c. Ground – key to best neg cp ground found in the lit
2. Rollback is highly unlikely – 1nc Vermuele is comparative evidence the plan is more likely to be challenged and interfered
with than the CP because the political costs of re-amendment are too great.
3. We cause legal and social change even if its rolled back
Siegal ‘06 [Reva B., Prof of Law and American Studies @ California, 94 Calif. L. Rev. 1323, ln]
For the first century of the Fourteenth Amendment's life, no court interpreted the Constitution to prohibit state action favoring men
over women. 1 In the 1970s, a mobilized feminist movement persuaded Congress to send an Equal Rights Amendment to the states for
ratification. With energetic countermobilization, the ERA was defeated. In this same period, the Court began to interpret the
Fourteenth Amendment in ways that were responsive to the amendment's proponents - so much so that scholars have begun to refer to
the resulting body of equal protection case law as a "de facto ERA." 2 When President Reagan proposed a nominee to the Supreme
Court who argued that the original understanding of the Fourteenth Amendment allowed government to discriminate between the
sexes, the Senate rejected his nomination. Instead of viewing Fourteenth Amendment cases influenced by the ERA as an
antidemocratic usurpation, the public viewed the authority of a nominee who questioned the sex discrimination case law as suspect. 3
Debate over whether to amend the Constitution changed the meaning of the Constitution - in the process forging modern
understandings of discrimination "on account of sex." 4 The ERA was not ratified, but the amendment's proposal and defeat played a
crucial role in enabling and shaping the modern law of sex discrimination. Yet constitutional law lacks tools to explain constitutional
change of this kind. No act of lawmaking produced the sex discrimination cases; and if the cases can be justified as legitimate judicial
interpretations of eighteenth-and nineteenth-century constitutional text, it is only by repressing their roots in popular mobilization for
and against an Article V amendment. Citizens regularly seek constitutional change through the arduous lawmaking procedures of
Article V as well as outside of them, and officials charged with enforcing the Constitution often act in response to their claims; yet
when these interactions do not conform to paradigms of lawmaking or adjudication, constitutional law discounts their role in
constitutional change.
4. Neither the courts nor executive can stop amendments
Chemerinsky ‘06 [Erwin, Prof of Law and PoliSci @ Duke, “The Assault on the Constitution: Executive Power and the War on
Terrorism,” lawreview.law.ucdavis.edu/articles/Vol40/Issue1/DavisVol40No1_Chemerinsky.pdf]
To be sure, there are some areas where the Constitution assigns power to only one branch, unchecked by any other. For example, the
President alone has the pardon power and there is no oversight of pardons by any other branch of government. 8 Congress may
impeach and remove the President, the Vice President, federal judges, and other officers of the United States. 9 Impeachment and
removal decisions are not reviewable by any other branch of government. 10 Congress’s choice to propose a constitutional
amendment is not reviewable by the courts or the executive branch. 11 However, even these areas of seemingly unilateral executive
authority must be understood as part of an overall system of checks and balances. For example, the President’s pardon power is a
final check to make sure that no one is incarcerated in violation of the Constitution and laws of the United States, and impeachment
acts as a check on abuses by the other branches of government. Impeachment has the added protection of requiring a two-thirds vote
of the Senate to remove a person from office. Constitutional amendments must be approved by three-fourths of the states.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
28/64
AT: COUNTERAMENDMENT
Durable fiat means no counter-amendmentsDouble bind, either
a. Their interp of fiat doesn’t change the opinion of the actors taking action, and the plan would be rolled back bc
the status quo proves the Court doesn’t want to overrule the _______ decisions, which means vote neg on
presumption OR
b.
Their interp of fiat does change the actors so they won’t rollback their own actions, which means our counterplan
doesn’t get rolled back by the majority that votes for our amendment.
All of these solvency deficits apply equally to the aff—every degree to which they win that the public wouldn’t like our
amendment and would vote to overrule it equally means the public would revolt from the plan, which means they don’t solve.
This deficit structurally gets them nowhere
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
29/64
AT: DELAY
1. Fiat is immediate and reciprocal—ensures fair division of ground between the aff and neg, their interpretation means all
counterplans would be delay, and the neg could never win.
2. Amendments can pass quickly
Jackson ’01 (Jesse L. Jackson, Jr., 2001, U.S. Representative, “A More Perfect Union: Advancing New American Rights”)
Some will say that amending the Constitution once, not to mention eight times, takes too long, requires too much energy, and
costs too much money – that it’s an inefficient stewardship of time and resources.
The answer to the first argument is that the Constitution has been amended twenty-seven times, including seventeen times since
the original Bill of Rights was passed. (The Bill of Rights itself required 811 days – from September 25, 1789, to December 15,
1791 – for ratification.) Following the initial, usually lengthy struggle to get an amendment through two-thirds of the House and
Senate, there is no time limit for ratifying it – that is, no seven-year limitation on ratifying amendments, as many people believe.
This schedule was arbitrarily placed on the Equal Rights Amendment (and later extended to ten years) and the D.C. Statehood
Amendment. Once a state legislature votes for an amendment, that affirmation remains in place, unless a later body reverses it.
How long it takes for my amendments to be passed by House and Senate, and ratified by three-quarters of the state legislatures,
will be determined by a combination of political leadership and the will of the American people. If Americans have a strong
desire for these rights – have a political fire burning in their bellies – such amendments can be shuttled through the House and
Senate and ratified relatively quickly after a legitimate national debate on their substance and implications.
3. Delay assumes conventions—congressional amendment is quick
Ishikawa 96 [Brendon Troy, Board of Legal Specialization, “Amending the Constitution: Just Not Every November,” 44 Clev. St. L.
Rev. 303, ln]
Further contributing to this lack of interest in the second procedure was the fact that Congress indeed proved to be the most efficient
way to generate amendments when it quickly proposed twelve amendments as Bill of Rights. 141 Since then, Congress has generated
every proposed amendment that has been submitted to the states for ratification. In the few instances in which calls for a particular
amendment have come close to the requisite two-thirds of states, Congress has acted to propose the amendment rather than allow a
special conventio n to take over the opportunity to debate and draft a proposal. 142 In light of Congress's ability to avert a called
convention, a number of scholars now declare the second procedure to be almost irrelevant. 143 Whatever the merits of such an
assertion, this latter procedure has remained unfruitful for [*333] purposes of amendment. 144 Nonetheless, it too shows the
elements that the Framers thought essential for constitutional amendment procedures.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
30/64
AT: NO ENFORCEMENT
1. Plan links
2. Publicity surrounding amendment raises political costs of non-enforcement—our ev is comparative.
Denning and Vile 02 [Brannon P., Prof of Law @ Samford, and John R., Dept. Chair of PoliSci @ MTSU, “The Relevance of
Constitutional Amendments: A Response to David Strauss,” 77 Tul. L. Rev. 247, ln]
The educative function of the debate aside, if proposed and ratified, a formal amendment undeniably changes the Constitution in one
significant respect: it adds language to the Constitution. Thus, to every person who bothers to look at a copy of the Constitution, the
change will be noticed. This textual referent, being available and apparent, enables more people to understand the fact that there has
been constitutional change and to take note of it than if the change comes informally, as the culmination of doctrinal evolution in the
Supreme Court or by accretions that harden into custom in the other branches. The publicity accompanying the change may, in fact,
increase public expectations that the change will be honored by the other branches, raising the costs of evasion or under-enforcement.
131
3. Amendments are perceived as having popular legitimacy—ensures enforcement
Denning and Vile 02 [Brannon P., Prof of Law @ Samford, and John R., Dept. Chair of PoliSci @ MTSU, “The Relevance of
Constitutional Amendments: A Response to David Strauss,” 77 Tul. L. Rev. 247, ln]
The Article V process is, as the Framers intended, rigorous. The supermajority provisions for both proposal and ratification almost
always guarantee that additions will not be made to the Constitution without both deep and broad support. Though some have
criticized the necessity of such supermajorities, 127 holding additions to the Constitution in abeyance until it is clear that support is
broad generally prevents populous regions from dominating less populous ones. This, in turn, allows the amendment to become part of
the Constitution with a near-conclusive presumption of legitimacy. This legitimacy, then, helps free the other branches (courts, for
example) to enforce it vigorously; indeed, such enforcement would likely be expected after an amendment makes it through Article
V's arduous process. And if, after popular expectations were raised through the debates over proposal and ratification, the amendment
is not enforced, institutions responsible for the foot-dragging may again face costs for evasion. This legitimization element is so
crucial that the examples Strauss cites of amendments that, he argues, did not do anything immediately (the Reconstruction
Amendments) or are not likely to have a significant effect despite their eventual ratification (the Twenty-Seventh Amendment), 128
could be cited as proof of what [*279] happens when attempts are made to short-circuit (or play games with) Article V's procedural
requirements. 129
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
31/64
AT: CLARITY
Counterplan solves legal clarity best – it provides a stable environment for investments
Vermeule ’04 (Adrian, Prof of Law @ The University of Chicago, “Constitutional Amendments and the Constitutional Common
Law” September http://www.law.uchicago.edu/academics/publiclaw/index.html)
It follows from these considerations that common-law constitutionalism performs poorly where the benefits of rigid
constitutional commitments are high, and the benefits of flexibility in future periods are low; and vice-versa. Where it is
desirable that new constitutional rules be tentative and reversible, because of a rapidly changing environment or because
mistaken rules will have very high costs, common-law constitutionalism shows to advantage. Where it is desirable that new
constitutional rules be irreversible or very costly to reverse, the amendment process is superior, just because amendments are
much harder to destabilize in future periods. This is the case where, for example, the entrenchment of constitutional property
rights serves as a costly signal that encourages investment,86 or where it is desirable to commit ex ante to political ground rules
that will have important and contentious distributive effects when applied ex post. An example in the latter category involves the
presidential succession rules, adjusted most recently by the 25th Amendment.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
32/64
AT: HAVE TO HAVE A SOLVENCY ADVOACTE
1. Links to the aff – they don’t have a card that matches their plan, just a card that talks about the general idea of overruling
the ________ decision. It proves there is no bright line for their interpretation.
2. Counter-interp – counterplans must have a solvency advocate for the mechanism of their implementation.
3. We meet – Schaffner is comparative between the courts and constitutional amendments
4. Solves Aff ground– they can generate offense via the mechanism of our amendment, which ensures disads and solvency
deficits.
5. Our interp allows for negative creativity, which promotes critical and strategic legal thinking. Debate should be the search
for the best policy option & all the best debates involve reasoned synthesis of different scholars ideas.
6. Reject the CP not the team.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
33/64
AT: MULTIPLE ACTOR FIAT BAD
1. Our interpretation- the neg gets one counterplan that includes federal action and state support of that federal action.
2. Fiat is relative to the aff – to rule on that nature is radically difficult – you change the minds of judges – fiats changing the
court to make sure it votes your way, clean up the court, appoint new judges where needed – proves no brightline to their
interpretation.
3. It solves their offense—the part of our counterplan that has the states act has them act in unison, which is functionally the
same as one actor, and they just act to affirm Congressional action.
4. They destroy neg counterplan ground – all counterplans implicitly fiat that State governments comply with federal action,
which means either their interp excludes all viable counterplans or abuse is not unique.
5. Neg ground outweighs—the aff gets infinite prep, to speak first and last, and can read an infinite number of addons.
Counterplans are our only defense.
6. Increases aff ground—every additional actor we add gives them ground to read disads against.
7. Our counterplan is predictable and good for debate.
Forsythe and Presser ‘06 [Clarke D. Director of the Project in Law & Bioethics @ American United for Life and Stephen B., Prof of
Legal History @ Northwestern U School of Law, 10 Tex. Rev. Law & Pol. 301, ln]
Our constitutional system provides only two ways to overturn a Supreme Court holding interpreting the Constitution: an overruling
decision by the Court itself or a constitutional amendment. Obviously, constitutional amendments are among the most difficult
political goals to achieve in our constitutional system. This article is unique in its explanation of the legal effect and implications of a
federalism amendment on abortion. Because no previous legal analysis of this kind exists, this article is limited to evaluating the legal
impact of a federalism [*341] amendment. It is beyond the scope of this article to evaluate fully the political obstacles or implications
involved in the passage of such an amendment. For those who believe, as we do, that Roe has poisoned our political and judicial
discourse, the political obstacles facing such an amendment ought to be weighed against the political obstacles to changing the Court's
membership in the coming years to accomplish the same goal. Given that these political obstacles have resulted in a situation where
there are only two publicly-declared Justices remaining on the Supreme Court who advocate the overturning of Roe thirty-three years
after Roe, the obstacles to a constitutional amendment, while severe, may be less formidable than attempting to overrule Roe by
changing the membership of the Court. Even if an amendment is impossible to accomplish, we do believe that legal and strategic
dialogue and debate on abortion is healthy for its own sake. It is also possible that the arguments, public education, and political
support involved in advocating a federalism amendment, even if Congress fails to consider an amendment, might move future Justices
closer to the point of finally overturning this tragic decision.
8. Reject the counterplan not the team.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
34/64
AT: CAN’T FIAT STATES RATIFY
Their interpretation destroys neg counterplan ground. This is akin to saying the Aff could have Congress propose topical
legislation but they have to read cards saying it would pass. The ENTIRE point of fiat was to sidestep should/would debates in
pursuit of the best policy. You should vote against them for even introducing such stupidity.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
35/64
AT: STATES DA
1. Doesn’t link the president and the governors did nothing, it was just the legislators.
2. Fiat takes out the link – as soon as an amendment is brought, special sessions to ratify it are automatically called – no one
has to support it or anything, they just vote.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
36/64
AT: AMENDMENTS BAD (GENERIC)
All of their arguments link to the plan
Vermeule 4—professor of law at the University of Chicago (LAW SCHOOL, THE UNIVERSITY OF CHICAGO, “CONSTITUTIONAL AMENDMENTS AND
THE CONSTITUTIONAL COMMON LAW,” September 4, http://ssrn.com/abstract_id=590341, CJ)
I conclude that the generic case against constitutional amendment fails. There is no basis for global or presumptive skepticism of the
amendment process as a means of constitutional change. The standard attempts to identify deficiencies in the amendment process fail
to compare the institutional alternatives: they identify features that are common to both the amendment process and the alternative
institutional process of constitutional common law.
Amendments aren’t bad - The CP is only ONE AMENDMENT and doesn’t change the way law is enforced – the plan risks
similar abuses by the judicial branch.
Vermeule ’04 (Adrian, Prof of Law @ The University of Chicago, “Constitutional Amendments and the Constitutional Common
Law” September http://www.law.uchicago.edu/academics/publiclaw/index.html)
In Part II, the core of the paper, I argue that the generic case against constitutional amendment fails. The generic case rests on a
nirvana fallacy that implicitly contrasts a jaundiced view of the amendment process with a romanticized view of constitutional
common law. The real alternative to constitutional amendment is flexible judicial interpretation that updates the Constitution
over time—a practice that can also be seen as tampering with or trivializing the Constitution, that is at least as polarizing or
divisive as constitutional amendment, that equally risks bad unintended consequences, and so on. Moreover, a public norm of the
kind embodied in the generic case against amendment would produce either a suboptimal rate of constitutional amendments, or
an optimal rate at excessive cost. The generic case can be reconstructed as a weak presumption, but in that form it loses its
distinctive force.
Not responsive – the alternative of judicial re-interpretation is WORSE for constitutional stability
Vermeule ’04 (Adrian, Prof of Law @ The University of Chicago, “Constitutional Amendments and the Constitutional Common
Law” September http://www.law.uchicago.edu/academics/publiclaw/index.html)
This argument is the clearest statement of a view that I take to be widespread both within and without the legal academy.33 In
the academic and popular commentaries that track Sullivan’s argument, the verbal formulas vary—sometimes the injunction is
against “tampering” with the Constitution, sometimes the emphasis is on the “divisiveness” of constitutional amendments,
sometimes the core point is that only “structural” amendments or amendments expanding “individual rights” are permissible—
but the common intellectual premise is something like Sullivan’s idea: there is a generic class of reasons to believe that the
amendment process is systematically or presumptively suspect. I will claim, however, that the generic case against amendment
rests on the nirvana fallacy: generic arguments typically fail to compare amendments with the institutional alternatives for
producing constitutional change, principally constitutional common law. The alternative to constitutional amendment is not, as
generic arguments often imply, a stable subconstitutional order; the alternative is continual judicial updating of the Constitution
through flexible common-law constitutionalism. That practice fares no better, and in many cases worse, on the margins of
institutional performance the generic case takes to be valuable.
Judicial review is worse – no constitutional basis
Denning ’97 (Brannon P, Research Associate & Senior Fellow, Yale Law School JD; 65 Tenn. L. Rev. 155 ln)
Though change effected through custom and usage can be quite momentous, it is often more subtle and more incremental than
change wrought by judicial interpretation. Moreover, judicial interpretation has received the lion's share of attention, both
positive and negative, as a vehicle for non-Article V change. When it comes to the Constitution, of course, the only court that is
able to effect change is the Supreme Court. The Supreme Court may uphold, and thus validate, a constitutional change effected
through custom and usage, n368 although the Court generally sidesteps disputes among the various branches of government.
Conversely, the Court may invalidate such an expansion, arguing that the branch in question has overstepped the limitations
placed on it by the Constitution. Further, the Court may interpret the Constitution to vindicate a claim of individual liberty
against federal or state laws, perhaps expanding the scope of a provision of the Constitution to cover a new situation. [*216]
Finally, the Court may alter constitutional understanding by overruling a case that it previously decided. The problem with
constitutional change via judicial interpretation is usually described by Alexander Bickel's classic phrase, "the
countermajoritarian difficulty." n373 That is, the Court's power of judicial review is nowhere explicitly granted in the text of the
Constitution, yet it is a power the Court claimed for itself early on (another example of custom and usage) and that it has
continued to exercise. n374 Moreover, judicial review is a power that is seen as not entirely consistent with modern notions of
democracy. n375 Interestingly enough, the Court's exercise of that power has generally been accepted, and though many have
criticized particular exercises of that power, no one has seriously suggested that the Court's decisions should simply be ignored.
Therefore, various theories have been suggested over the years to legitimize judicial review, or at least to insulate the Court to
some extent from charges that it has no basis for the exercise of that power.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
37/64
AT: AMENDMENTS BAD (SPECIFIC INTERPRETATIONS)
1. Plan links – they create a specific interpretation.
2. Specific interpretations of Constitutional law are inevitable – incorporating them into the Constitution is key to stable
application in a complex world
Vermeule ’04 (Adrian, Prof of Law @ The University of Chicago, “Constitutional Amendments and the Constitutional Common
Law” September http://www.law.uchicago.edu/academics/publiclaw/index.html)
Another idea is that amendments, at least detailed as opposed to general amendments, are objectionable because they “clutter up”
the Constitution with highly specific rules—causing the Constitution, in John Marshall’s words, to “partake of the prolixity of a
legal code.” Here again the nirvana illusion is at work. The real alternative to a prolix formal constitutional code promulgated by
the amendment process is a prolix informal constitutional code promulgated by judges. Whatever may be said about the value of
the latter, it is not “the intelligible Constitution”36 of general principles that the objection seems to contemplate. Consider the
notoriously intricate and code-like character of judicially-developed free speech law, or the tangled underbrush of Fourth
Amendment search-and-seizure law. Part of the reason these bodies of law are so highly reticulated is that the underlying texts
(“the freedom of speech,” “unreasonable searches and seizures”) are so skimpy. The judges have had to fill in their content, but
would not have had to do so had those texts been more expansive and detailed, as other amendments are. A complex society will
produce complex constitutional law; the only real question is whether it is good to outsource constitutional complexity from the
amendment process to the adjudicative process.
3. Specific amendments generate broader new principles
Vermeule 04 [Adrian, Prof @ Chicago Law, “Constitutional Amendments and the Constitutional Common Law,”
http://www.law.uchicago.edu/academics/publiclaw/index.html]
Here the nirvana illusion is twofold; the argument underestimates the capacity of specific positive enactments to generate broader principles in
the future, and overestimates the principled, as opposed to specific, character of the background free speech doctrine, and constitutional doctrine
generally. As to the first point, an argument emphasized by James Landis in the statutory setting, as against defenders of the commonlaw status quo, was that new
statutes may themselves generate new principles when interpreted over time, in part by judges sympathetic to the aims of the new enactment. 48 So
too in the constitutional setting. It is easy to imagine future courts generalizing new principles from a flag desecration amendment, principles
emphasizing the authority—the right, if you will—of enduring majorities to mark out as fundamental a limited class of symbols or ideals or aspirations, and to grant
those symbols immunity from the ordinary hurly-burly of free speech in an open society. The precise contour of such principles is not now apparent, but that is also
true whenever courts embark on the development of new lines of constitutional doctrine. In both cases, coherentists should expect a process of mutual
adjustment to occur, as new principles elbow their way into the constitutional arena and force old principles to reconcile themselves to a
new, narrowed scope.
4. Specificity is vacuous anyway
Vermeule 04 [Adrian, Prof @ Chicago Law, “Constitutional Amendments and the Constitutional Common Law,”
http://www.law.uchicago.edu/academics/publiclaw/index.html]
The idea that “social policies” should not be encoded in the Constitution, and the accompanying prohibition analogy, are in my view both largely
vacuous. What produces such widespread agreement on the injunction against constitutionalizing “mere” social policy is that no one ever seeks to violate it. No
serious constitutional movement ever describes itself as seeking to encode a mere social policy in the Constitution, as opposed to a
structural or rights-protecting or otherwise more fundamental sort of policy or legal rule. Any constitutional movement that becomes nationally prominent
features at least a core of leaders and activists who describe themselves as engaged in structural or fundamental reform. Thus Stephen Presser can say, quite rightly in
my view, that the “social policy” criticism of the flag desecration amendment missed the main argument of the amendment’s proponents: [O]ne person’s
narrowness is another person’s entirety, at least where constitutional amendments are concerned. Most academics and intellectuals regard the
flag as a mere piece of colored cloth, but the eighty percent of Americans who favor the amendment regard it as a unique symbol and physical expression of the selfsacrifice of loved ones who served their country. They believe that protecting the flag from desecration—as the Supreme Court no longer permits—is fundamental to
national honor, and that a nation in which nothing is officially sacred is a nation in danger of moral collapse. 56 Those who approved of the flag desecration
amendment should find Presser’s argument devastating as against the social policy objection. Those who opposed the amendment will think that Presser’s argument
rests on a category mistake. Abolition was fundamental, the civil rights movement was fundamental, reproductive choice is fundamental, but protecting the flag from
desecration is not. Given their shared major premise and different minor premises, both sides are right; the debate is purely over the application of a principle held in
common by all concerned. It is not that anyone disputes the injunction against constitutionalizing mere social policy; it is that no one takes their cherished amendment
to violate the principle. I said that the injunction against encoding social policies in the Constitution was largely vacuous, not wholly so. The injunction might rule out a
small class of low-level policies; let us have no amendments to constitutionalize the earned income tax credit! The point, however, is that there are no serious or
influential constitutional movements organized for the purpose of putting policies like that in the Constitution anyway. The prohibitionists, of course, did not
see themselves as advocating a constitutionalized social policy, in the disparaging sense. They saw temperance as the token of an essential moral
and spiritual and socially progressive crusade. If we now see things differently, that gives us no help at all for the future, because we cannot
now guess which of our own crusades that we now cherish as fundamental will be dismissed as akratic frenzies in the hindsight of later generations. The owl of
Minerva flies at dusk, which means that the injunction against encoding social policies bites only where and when it is not needed. When it is
needed, it does not bite.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
38/64
AT: AMENDMENTS BAD (POLITICIZING)
1. Plan does the same thing – they still create a based off of evidence written by politically biased authors
2. No impact to politicizing the Constitution. It’s already politicized and frequent judicial interpretation falls trap to the same
logic
Vermeule ’04 (Adrian, Prof of Law @ The University of Chicago, “Constitutional Amendments and the Constitutional Common
Law” September http://www.law.uchicago.edu/academics/publiclaw/index.html)
An initial reaction is that any slogan of this sort is puzzling in the extreme. In any sense that “political” might be given here, the
Constitution is already political, or politicized, and it always has been. As a constitution, what else could it possibly be?
Whatever else it does, the Constitution sets ground rules that govern a political association, that are politically determined, and
that have political consequences. The picture that animates this argument is a distinction between law, the sphere of
constitutional rules, and politics, the sphere of action within the constitutional rules. On this picture, “[l]osers in the short run
yield to the winners out of respect for the constitutional framework set up for the long run. This makes the peaceful conduct of
ordinary politics possible.”35 But this is illusory, a false alternative. The alternative to formal constitutional amendment is not
the placid subconstitutional state of affairs implicitly presupposed here—perhaps the jousting of interest groups for legislative
benefits. The concrete alternative to constitutional amendment is judicially-developed constitutional law, which itself changes
over time in response to political, social and cultural shifts, and which itself produces constitutional winners and losers (not
merely losers and winners of the “ordinary” sort). During the decades-long political struggle over the content of constitutional
abortion law that has succeeded Roe v. Wade, a struggle waged simultaneously in legislatures, agencies and courts, and at all
levels of government, proposals have been advanced at various points to amend the Constitution’s text to enforce one or another
view of the matter. Whatever else might be said about such proposals, it is hard to see anything meaningful in the injunction not
to “politicize” the Constitution by enacting them, given the background of constitutional politics—emphatically including
judicial politics—against which the proposals have arisen.
3. Amendments aren’t polarizing—judicial policy is just as bad – its inevitable
Vermeule 4—professor of law at the University of Chicago (LAW SCHOOL, THE UNIVERSITY OF CHICAGO,
“CONSTITUTIONAL AMENDMENTS AND THE CONSTITUTIONAL COMMON LAW,” September 4,
http://ssrn.com/abstract_id=590341, CJ)
This is among the most popular of popular arguments against amendment; and it has gained new prominence in the debate over samesex marriage.37 Most charitably construed, the objection here is not to amendment proposals that are actually enacted. Article V’s
stringent supermajority requirements ensure that successful amendments tend to embody a broad consensus—far more so than many
judicial decisions that change Although I cannot fully defend the claim here, I believe as a general matter that injunctions not to put
“polarizing” or “divisive” issues on the public agenda have repressive political and social effects.38 They are typically deployed by
winners, or insiders, or those privileged by the status quo, to exclude from the public agenda claims of injustice on the part of the
disadvantaged. This is a broad assertion, but consider that labor movements and civil rights movements and feminist movements have
often been met with similar arguments.39 Here the injunction not to “divide” or “polarize” shades into the injunction not to
“politicize.” Losers or outsiders, relative to some status quo ante, want precisely to politicize, to bring political decisionmaking to bear
in order to disrupt preexisting political and legal allocations that would remain entrenched absent public action, and that are (at least in
the outsiders’ view) unjust.40 In the setting of constitutional amendments, this picture re-emphasizes the point I made above about the
generic claim that amendments “politicize” the Constitution. To say that losers or outsiders in the constitutional status quo ante,
meaning the status quo established by judge-made constitutional law, should not propose “divisive” or “polarizing” amendments, is to
choke off the one of the principal avenues of constitutional change. Formal amendment is not the only such channel, of course. Status
quo losers can participate in presidential or senatorial politics, with the hope of influencing the selection of judges, in order to overturn
the judge-made status quo. But that course of action will itself lead to charges of politicization, or polarization, or divisiveness.
Shifting the forum in which the constitutional status quo is challenged does not eliminate the fact of the challenge itself. So the
nirvana illusion here is the same as in (1) above. Judge-made constitutional law is itself inherently and inescapably divisive or
polarizing; and it remains so whether the status quo losers attempt to change it ex post, through litigation seeking a change of course,
or ex ante, through influence over judicial selection (that may subsequently produce overrulings). When judges decided that there was
a constitutional right to burn the American flag, or to own slaves, the decisions sharply divided Americans who believed the courts
were right from those who believed them wrong. A proposal by the latter group to amend the Constitution, over the objections of the
former group, adds no additional divisiveness.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
39/64
AT: AMENDMENTS BAD (INCOHERENCE)
Incoherence isn’t always bad—constitutional amendments win the race to the middle and judicial reinterpretation is worse
Vermeule 4—professor of law at the University of Chicago (LAW SCHOOL, THE UNIVERSITY OF CHICAGO,
“CONSTITUTIONAL AMENDMENTS AND THE CONSTITUTIONAL COMMON LAW,” September 4,
http://ssrn.com/abstract_id=590341, CJ)
I shall not question (iii) here, although there is much to be said in praise of incoherence in law, especially in constitutional law. Good
coherence is better than incoherence, but bad coherence is worse than incoherence; coherence raises the stakes of constitutional
decisionmaking by propagating either good or bad decisions through the legal system. Nor shall I question the dubious historical
premise of the argument—that the framers designed a coherent constitutional scheme, as opposed to aggregating competing values
and preferences, through horse-trading, into a patchwork document. Those issues aside, the rationale offered in (ii) exemplifies the
nirvana illusion that underpins the generic case against amendments. The comparison between the framers’ globally coherent design,
on the one hand, and piecemeal amendment on the other is not the right comparison to make. The principal substitute for formal
amendment is not formal constitutional conventions, but judicial updating of constitutional law through flexible interpretation. The
question, then, is whether piecemeal amendment produces greater incoherence than piecemeal judicial updating, carried out in
particular litigated cases, by judicial institutions whose agenda is partly set by outside actors. There is little reason to believe the latter
process more conducive to coherence than the former, and much evidence to suggest that judicial decisionmaking produces a great
deal of doctrinal incoherence. We should disavow any implicit picture of judge- made constitutional law as an intricately crafted web
of principles whose extension and weight has been reciprocally adjusted. Precisely because judicial updating requires overrulings,
reinterpretations, and other breaks in the web of prior doctrine, a system that relies on judicial updating to supply constitutional
change—the system that the generic case tends to produce—generates internal pressures towards incoherent doctrine. Constitutional
adjudication in America, let us recall, has produced both Plessy v. Ferguson and Brown v. Board, both Lochner v. New York and
West Coast Hotel v. Parrish, both Myers v. United States and Humphrey’s Executor, both Dennis v. United States and Brandenburg v.
Ohio, both Wickard v. Filburn and Lopez v. United States, both Bowers v. Hardwick and Lawrence v. Texas. Whatever else can be
said about this judicial work-product, and whatever other justifications can be given for judge-made constitutional law, deep inner
coherence does not seem either a plausible description of the terrain or even a plausible regulative ideal for the system. The collective
authorship of “Great and Extraordinary Occasions,” a set of “Guidelines for Constitutional Change,”45 advance a related argument
from coherence. The argument is best illustrated with the example of the proposed amendment that would have stripped free speech
protection from the act of burning the American flag. The guideline authors object that the amendment would have been
“[in]consistent with related constitutional doctrine that the amendment leaves intact.”46 The problem arises “when framers of
amendments focus narrowly on specific outcomes without also thinking more broadly about general legal principles.”47 The Court’s
decision to label flag burning protected speech was derived from established background principles of judge-made free speech law,
while a flag desecration amendment would merely have overturned a particular judicial outcome.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
40/64
AT: AMENDMENTS BAD (DILUTE CONSTITUTION)
1. Plan links – flip flopping around interpretations of the constitution kills stability – no one knows which way the court will
rule
2. Empirically denied—the constitution has been amended many times, and the prohibition amendments disprove their
specificity links. The constitution and our democracy has way too much structural integrity to fall apart from one amendment.
Denning 97 [Brannon P., Prof of Law @ Samford, “MEANS TO AMEND: THEORIES OF CONSTITUTIONAL CHANGE,” 65
Tenn. L. Rev. 155 ln]
Formal changes to the fundamental law were taken as seriously by Madison and the other Framers as was the framing of the
fundamental law itself. In many ways, therefore, Article V can be seen as the Constitution writ small. 162 It affirms the right of the
people to alter or abolish their government; but it establishes a framework within which those formal changes should take place, to
ensure that future alterations procede in an orderly manner, and that future conventions do not have to count upon crisis to force
citizens to put away selfish interests for the good of the country. The institutional procedures and the supermajority requirements help
guarantee that reason and not passion guide the sovereign people. In his view of Article V's theory, historian David Kyvig aptly
concludes that "[t]he federal compromise of the 1787 Constitution could be found in no [*179] more pure a form." 163 As we shall
see, Madison succeeded, possibly better than he hoped, by infusing American citizens with feelings of veneration for their
Constitution-so much so, that since the passage of the first ten amendments in 1791, we have averaged less than one amendment every
twenty years.
3. Specific Amendments overruling Court decisions cause more caution and moderation—ensures stability
Gonzalez 02 [Jose Julian Alvarez, Prof @ U Puerto Rico Law, 71 Rev. Jur. U.P.R. 1 ln]
It also has been suggested that it is not wise to use the constitutional amendment process to overrule judicial interpretations, since that
would require language of considerable specificity, which is not desirable. 79 While I agree with the general idea that constitutional
language, particularly that referring to individual rights, should not be framed in terms of excessive specificity, I would not carry that
objection as far as to disable the sovereign from manifesting its disapproval of specific constitutional decisions. The use of the
constitutional amendment process in these situations not only has the effect of overriding a particular judicial decision. It has the more
important effect of reminding the [*25] ultimate interpreters of the constitution that their interpretations are in fact reviewable, which
may lead them to exercise greater caution in future interpretations.
4. Disregard their general theoretical cards—comparative evidence proves their fears are unfounded in practice
Vermeule 04 [Adrian, Prof @ Chicago Law, “Constitutional Amendments and the Constitutional Common Law,”
http://www.law.uchicago.edu/academics/publiclaw/index.html]
Yet the nirvana illusion occurs on this more general level as well. Here the illusion takes two related forms. The first is the belief that
constitutional amendments represent risky action, while the steady-state of judge-made constitutional doctrine represents safe
inaction. This is a trivial mistake, akin to the crudest defenses of the so-called “precautionary principle” in environmental law, or of
the Hippocratic injunction to “do no harm.” Inaction may produce the medically worst outcome of all, and the status quo may itself
contain dangerous environmental risks. Likewise, a persistent judicial refusal to update obsolete constitutional law can itself produce
large political, social and economic harms; this is a possible account of the mistakes of the Lochner Court. In a second version, the
alternative to formal amendment is not judicial “inaction,” but affirmative judicial action to update obsolete doctrine. Here the nirvana
illusion is the failure to recognize that judicial updating, as a substitute for formal amendment, can itself produce bad and unforeseen
structural consequences. To the extent, for example, that Morrison v. Olson rested on a decision to adapt the law of executive power
to the era of the imperial presidency, the decision is widely thought to have tampered with the deep structure of government in
disastrous ways—although this may not strictly count as an unforeseen consequence, given Justice Scalia’s dissent. I conclude that
there is no way to leverage a concern for disrupting coherence, or a broader concern for unforeseen consequences more generally, into
a generic caution about constitutional amendment. Anything that people or institutions do or fail to do may result in bad unforeseen
consequences. Statutes may produce them, but so may the failure to enact statutory reforms; judicial decisions may produce them, but
so may judicial “inaction”; and so too for constitutional amendments. The worry about perverse consequences suggests nothing in
particular; it yields paralysis, not safety.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
41/64
AT: AMENDMENTS BAD (CONSTITUTIONAL CLUTTER)
Not unique and no link – judicial policy “clutters the constitution” with highly specific rules just as much
Vermeule 4—professor of law at the University of Chicago (LAW SCHOOL, THE UNIVERSITY OF CHICAGO,
“CONSTITUTIONAL AMENDMENTS AND THE CONSTITUTIONAL COMMON LAW,” September 4,
http://ssrn.com/abstract_id=590341, CJ)
Another idea is that amendments, at least detailed as opposed to general amendments, are objectionable because they “clutter up” the
Constitution with highly specific rules— causing the Constitution, in John Marshall’s words, to “partake of the prolixity of a legal
code.” Here again the nirvana illusion is at work. The real alternative to a prolix formal constitutional code promulgated by the
amendment process is a prolix informal constitutional code promulgated by judges. Whatever may be said about the value of the latter,
it is not “the intelligible Constitution” of general principles that the objection seems to contemplate. Consider the notoriously intricate
and code-like character of judicially-developed free speech law, or the tangled underbrush of Fourth Amendment search-and-seizure
law. Part of the reason these bodies of law are so highly reticulated is that the underlying texts (“the freedom of speech,”
“unreasonable searches and seizures”) are so skimpy. The judges have had to fill in their content, but would not have had to do so had
those texts been more expansive and detailed, as other amendments are. A complex society will produce complex constitutional law;
the only real question is whether it is good to outsource constitutional complexity from the amendment process to the adjudicative
process.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
42/64
AT: AMENDMENTS BAD (LEGAL CERTAINTY)
Turn – Amendments keep certainty to the Constitution while Judicial rulings destroy it
Vermeule 04
(Adrian Vermeule - graduate of Harvard College and Harvard Law School, has been Professor of Law at Harvard Law School since
2006 and was named John H. Watson Professor of Law in 2008, “CONSTITUTIONAL AMENDMENTS AND THE
CONSTITUTIONAL COMMON LAW”, THE LAW SCHOOL THE UNIVERSITY OF CHICAGO, September 2004,
http://papers.ssrn.com/sol3/papers.cfm?abstractid=590341)
Below I take up the separate idea that “short-term policy goals” should not be written into the Constitution. Here I shall focus on the
other main features of the argument in the passage above: (i) the concern with bad and unintended structural consequences, a concern
that is underwritten by (ii) a concern that amendments produce piecemeal and incoherent, as opposed to globally coherent,
constitutional law, and by (iii) an assumption that legal coherence is always or generally desirable. I shall not question (iii) here,
although there is much to be said in praise of incoherence in law, especially in constitutional law. Good coherence is better than
incoherence, but bad coherence is worse than incoherence; coherence raises the stakes of constitutional decisionmaking by
propagating either good or bad decisions through the legal system. Nor shall I question the dubious historical premise of the
argument—that the framers designed a coherent constitutional scheme, as opposed to aggregating competing values and preferences,
through horse-trading, into a patchwork document. Those issues aside, the rationale offered in (ii) exemplifies the nirvana illusion that
underpins the generic case against amendments. The comparison between the framers’ globally coherent design, on the one hand, and
piecemeal amendment on the other is not the right comparison to make. The principal substitute for formal amendment is not formal
constitutional conventions, but judicial updating of constitutional law through flexible interpretation. The question, then, is whether
piecemeal amendment produces greater incoherence than piecemeal judicial updating, carried out in particular litigated cases, by
judicial institutions whose agenda is partly set by outside actors. There is little reason to believe the latter process more conducive to
coherence than the former, and much evidence to suggest that judicial decisionmaking produces a great deal of doctrinal
incoherence. We should disavow any implicit picture of judge-made constitutional law as an intricately crafted web of principles
whose extension and weight has been reciprocally adjusted. Precisely because judicial updating requires overrulings, reinterpretations,
and other breaks in the web of prior doctrine, a system that relies on judicial updating to supply constitutional change—the system that
the generic case tends to produce—generates internal pressures towards incoherent doctrine. Constitutional adjudication in America,
let us recall, has produced both Plessy v. Ferguson and Brown v. Board, both Lochner v. New York and West Coast Hotel v. Parrish,
both Myers v. United States and Humphrey’s Executor, both Dennis v. United States and Brandenburg v. Ohio, both Wickard v.
Filburn and Lopez v. United States, both Bowers v. Hardwick and Lawrence v. Texas. Whatever else can be said about this judicial
work-product, and whatever other justifications can be given for judge-made constitutional law, deep inner coherence does not seem
either a plausible description of the terrain or even a plausible regulative ideal for the system.
Legal incoherence is inevitable – anything people do may result in uncertainty
Vermeule 04
(Adrian Vermeule - graduate of Harvard College and Harvard Law School, has been Professor of Law at Harvard Law School since
2006 and was named John H. Watson Professor of Law in 2008, “CONSTITUTIONAL AMENDMENTS AND THE
CONSTITUTIONAL COMMON LAW”, THE LAW SCHOOL THE UNIVERSITY OF CHICAGO, September 2004,
http://papers.ssrn.com/sol3/papers.cfm?abstractid=590341)
I conclude that there is no way to leverage a concern for disrupting coherence, or a broader concern for unforeseen consequences more
generally, into a generic caution about constitutional amendment. Anything that people or institutions do or fail to do may result in
bad unforeseen consequences. Statutes may produce them, but so may the failure to enact statutory reforms; judicial decisions may
produce them, but so may judicial “inaction”; and so too for constitutional amendments. The worry about perverse consequences
suggests nothing in particular; it yields paralysis, not safety
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
43/64
AT: AMENDMENTS BAD (DEMOCRACY)
Democratic amendments overruling bad judicial decisions preserve democracy—unaccountable judicial amendments are
frequent and worse
Taylor 06 [Arthur H., CFO of American HealthNet, “Fear of an Article V Convention,” 20 BYU J. Pub. L. 407, ln]
Those who advocate opposition to all democratic amendments in the face of judicial amendments defy reason. Even if it is believed
that the Constitution should never be amended, if it is amended, one would expect a desire to change it back. Most judicial
amendments can only be changed, if ever, by a democratic amendment. The second, democratic amendment simply reverses the effect
of the judicial amendment - actually drawing closer to the position desired by those who initially reject all amendments. Opposing
democratic amendments, including those from an Article V convention, in the face of regular and ongoing judicial amendments,
comports with no rationally consistent set of beliefs. It simply defies all reasoning.
Amendments maintain democratic balance—crucial to overall stability
Katz 96 [Elai, Editor-in-Chief of Columbia journal of Law and Social Problems, 29 Colum. J.L. & Soc. Probs. 251, ln]
Constitutionalist systems, such as the American system, often pi t the values of popular sovereignty against the values of limited
government. 9 The amending process helps maintain the delicate balance between democracy and limited government. Most of the
limits on democratic action enumerated by the various constitutions of the world can be changed by resorting to the amending process.
10 While the amending power makes important rights alienable, it also allows for constitutions to evolve as political values change. If
it is too difficult to change the constitution, the people may become frustrated and resort to extra-legal behavior. If, however, it is too
easy to change, the constitution's [*255] status may merely equal that of any simple statute and the constitution's values will not rise
above other more ephemeral political decisions. Thus, the particulars of the amending clause of any given constitution affect the
stability and durability of that constitution and of constitutionalism in that society.
No one models the US democratic structure anymore—and certainly not our judiciary or amendment processes
Arato 2000 [Andrew, Dorothy Hart Hirshon Profof Political and Social Theory @ New School, “The New Democracies and
American Constitutional Design,” Constellations 7.3, BlackwellSynergy]
When it comes to institutional design, we find a very different picture. A few countries, mostly semi-democratic offshoots of the
collapsing federations of the Soviet Union and Yugoslavia, did move towards strong, directly elected presidencies. Yet not a single
new, unambiguously democratic regime formally adopted the US version of the separation of powers system, with its fusion of the
head of state and head of government, dual democratic legitimacy, and a rigid electoral calendar. With the exception of the Polish
Senate, born in a partially democratic bargain, and the Croatian and initially Serbian legislatures, first-past-the-post, single-member
district electoral rules favoring a two party system found little support. In spite of the preference of outgoing ruling parties for
majoritarian formulas, proportional representation or mixed electoral systems with a large component of PR were chosen. The
preferred form of constitutional review has not been the judicial model associated with John Marshall, but the Austrian type invented
by Hans Kelsen, establishing a centralized tribunal outside the regular court system, with legal standing for many public law
institutions. Only Russia moved toward a version of US-style federalism, with its bias for extreme provincial autonomy, US-style
bicameralism, involving a federal chamber nearly as strong as the popular one, as well as extremely inflexible, US-style constitutional
revision. But even here, at least on paper, local autonomy is weaker, the popular legislative chamber is relatively stronger, and the
amendment role is more flexible than in the US.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
44/64
AT: AMENDMENTS BAD (FEDERALISM)
1. We solve – both the federal government and the states ratify, which means the states have power – at worst counterplan is
federalism neutral
2. Plan links harder
Vermeule 4—professor of law at the University of Chicago (LAW SCHOOL, THE UNIVERSITY OF CHICAGO,
“CONSTITUTIONAL AMENDMENTS AND THE CONSTITUTIONAL COMMON LAW,” September 4,
http://ssrn.com/abstract_id=590341, CJ)
Here the nirvana illusion is the failure to recognize that federalism arguments apply to federal constitutional decisions by judges just
as much as they do to amendments. Every Supreme Court decision that puts some forms of government action off-limits to all states,
and perhaps to the federal government as well, nationalizes the relevant question. When the flag desecration amendment was proposed
it would have been silly to say that amendments should not nationalize questions best left to the states; the Court’s flag- burning
decisions had already done that. The only question was whether those decisions should be left undisturbed, or whether the issue should
be remitted to the discretion of states and the federal government. Although the federal government might in turn have prohibited flagburning nationwide, as it had previously tried to do, that shows only that federal statutes are yet another instrument that might be
objectionable on the ground that they commit questions to the wrong level of government.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
45/64
AT: AMENDMENTS BAD (RUNAWAY AMENDMENTS)
1. No risk of runaway amendments – procedural requirements make frequent amendment impossible
Dinan 97 [John, Wake Forest, “State Government Influence in the National Policy Process,” Publius: The Journal of Federalism 27.2,
Jstor]
Any evaluation of the effectiveness of this strategy must be advanced tentatively, because the State’s Federalism Summit, rather than
actually proposing the adoption of these amendments, chose to refer them back to the sponsoring organizations for debate and action.
The difficulty in securing the enactment of any of these proposals makes it unlikely, however, that the amendment process will yield
many benefits for the states. Article V of the U.S. Constitution, with its super-majority requirements for proposing and ratifying
amendments, is designed to frustrate all types of constitutional change. These requirements make it particularly difficult, however, to
enact amendments that would advance state interests. Although the Congress can propose amendments by securing a two-thirds vote
in both houses, which has been achieved infrequently, the states can only propose an amendment upon the application of two-thirds of
the state legislatures, at which point Congress is to call a constitutional convention. This has never taken place.
2. This is actually a disad to the aff—judicial changes in the constitution entail all the risks of amendments without any of the
benefits
Taylor 06 [Arthur H., CFO of American HealthNet, “Fear of an Article V Convention,” 20 BYU J. Pub. L. 407, ln]
In both cases one would probably conclude that the current risk of an adverse judicial amendment is much higher than the risk of an
adverse democratic amendment, even with a runaway convention that filters no amendments of any kind. Of course, if the convention
did filter some amendments - if it was not a runaway convention - then the comparative risk of an adverse judicial amendment would
be even greater. The whole point is that the significance of a runaway convention, assuming that one should ever occur, has been
vastly overstated. Practically speaking, a runaway convention means at the extreme that one of two filters is eliminated, and that the
risk of an adverse democratic amendment has increased - at the very most - to equal the risk that the States would ratify such an
amendment. This risk in the current political climate is - depending on one's political view and definition of an adverse amendment still, by comparison, substantially lower than the risk of an adverse judicial amendment. Furthermore, because [*415] amendments
"proposed" through the judiciary have the same characteristics of a runaway convention (i.e., any and all amendments may be
proposed) the convening of a modern-day convention will do little more to put the Constitution at risk than the advent of modern-day
judicial activism has already done. Said another way, through judicial activism we already have all the risks of a convention but
none of the benefits. Only if one believes it is more likely that three-fourths of the states will ratify an adverse democratic amendment
than it is that five justices will approve an identical adverse judicial amendment should there exist a fear of a convention.
3. The slippery slope argument is wrong—the threshold for amendments will remain high
Presser 06 [Stephen B., Raoul Berger Professor of Legal History, Northwestern Law, "Why the United States Congress Has a Duty to
Pass the Flag Amendment,” http://www.cfa-inc.org/]
The objections to such an amendment that have been raised over the years by many senators and some representatives, objections that
will be heard again this summer, have never been persuasive but deserve some mention in order to rebut them. Some members of
Congress believe the flag ought to be protected, but that a statute could do it and no constitutional amendment is necessary.
Unfortunately, this experiment was tried the year after Texas v. Johnson, but the Supreme Court simply reiterated that it meant what it
said: any statute seeking to prevent flag desecration runs afoul of the First Amendment. Only a constitutional amendment, then, can
clarify that flag desecration is not speech but a harmful act. Some have also argued that if the flag amendment passes it will open the
floodgates to constitutional amendments, making it inevitable that our noble and succinct Constitution will be inundated with partisan
amendments. This slippery-slope argument is incorrect, however, as the barriers to constitutional amendments remain considerable,
and only an overwhelmingly popular amendment such as this one stands a chance of passage. Indeed that is the way it should be.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
46/64
AT: AMENDMENTS BAD (BALANCED BUDGET AMENDMENT)
1. Balanced budget amendment won’t pass – and even if it did, loopholes would make it unenforceable
Boudreaux and Pritchard 93 [Donald J., Prof of Legal Studies @ Clemson, and A. C., Office of the Solicitor General of the US,
“Rewriting the Constitution: An Economic Analysis of the Constitutional Amendment Process,” 62 Fordham L. Rev. 111, ln]
Similar obstacles face the balanced-budget amendment. 243 Running a budget deficit year after year allows politicians to transfer
wealth from unrepresented future generations to currently effective interest groups. 244 Over time, interest payments on the
accumulating debt requires a greater percentage of the budget and the creditworthiness of the government correspondingly declines.
245 The nation as a whole bears these costs, however, and members of Congress are not held individually responsible for the
continually growing national debt. Members of Congress find themselves in a Prisoner's Dilemma in acting as agents for their
constituents: securing pork for their districts continues to produce votes and contributions, while voting to limit spending or raise taxes
is certain to impair their ability to be reelected. 246 As members of Congress will always retain some ability to impose externalities on
currently unrepresented future generations, they will continue to resist the precommitment that a balanced budget amendment would
impose. 247 Instead of precommitment, [*160] when provisions are proposed that would limit spending (such as Gramm-RudmanHollings), 248 Congress provides enough loopholes and exceptions to make those provisions unenforceable. 249 A similar fate
would likely befall any constitutional amendment that made it through Congress. The term-limits amendment and the balanced-budget
amendment face an insurmountable obstacle in Congress' control over the agenda of the constitutional amendment process. Our
analysis of the successful amendments shows that Congress has used its agenda control over the constitutional amendment process to
expand its own influence and power, with a corresponding increase in the opportunities for rent-seeking at the federal level. Both
precommitment strategies and the reduction of agency costs require that the majoritarian Congress be controlled through the
Constitution. Our positive theory of constitutional amendment and the history of Article V, demonstrate however, that Congress is
unlikely to impose restrictions on itself that would impair its members' ability to extract money and votes.
2. Evidence which suggests a BBA would pass is just political posturing – its got no hope
Staudt 98 [Nancy C., Prof of Law @ SUNY Buffalo, “Constitutional Politics and Balanced Budgets, 1998 U. Ill. L. Rev. 1105, ln]
Part IV explores why many legislators have demonstrated an abiding commitment to the proposed budget amendment when it does
not appear to advance their own self-interested ends. 24 This part considers the symbolic value of the budget amendment in popular
and political culture and argues that politicians who support the proposal appear fiscally responsible and committed to reduced federal
taxation. Accordingly, by advocating a balanced budget amendment without ever actually adopting it (or perhaps adopting one
riddled with loopholes and exceptions), legislators seem to advance the greater social good while actually maintaining the status
quo. The political and social meaning of the balanced budget amendment, therefore, has enabled opportunistic legislators to gain
politically, even as they stand opposed to constitutional limitations on the budgeting process.
3. It won’t be enforced anyway
Staudt 98 [Nancy C., Prof of Law @ SUNY Buffalo, “Constitutional Politics and Balanced Budgets, 1998 U. Ill. L. Rev. 1105, ln]
Enforcement problems will also arise because federal courts, "the traditional guarantors of the constitutional order," are unlikely to
play a significant role in ensuring adherence to the balanced budget mandate. 295 First, the Supreme Court has refused to oversee
taxing and spending legislation since the turn of the century. 296 Second, even if the court were inclined to play an institutional role
ensuring Congress [*1164] satisfies a constitutional obligation to balance the budget, the task would be extremely difficult given the
financial complexities involved. As an illustration of these complexities, consider the problems that can arise with regard to the
accounting method used to balance the budget. Under the "cash method" of accounting, income is recorded when received and
expenses are recorded when paid. 297 Under the "accrual method," financial transactions are reported based on the substance of the
entity's activities and commitments. Income is reported when earned (rather than when received) and expenses are reported when
incurred (rather than made). 298 Both methods raise serious enforcement problems.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
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47/64
AT: AMENDMENTS BAD (FLAG BURNING)
The flag amendment is key to protect our most vital national symbol—it doesn’t hurt free speech
Feinstein 06 [Dianne, US Senator from Cali, “Flag needs protection,” USA Today, 6-19,
http://www.usatoday.com/news/opinion/editorials/2006-06-19-oppose-flag_x.htm?csp=34&POE=click-refer]
Today, our flag remains a vibrant symbol of our democracy, our shared values, our commitment to justice, and our eternal memory of
those who have sacrificed to defend these principles. It is because of all that our flag embodies that I have co-sponsored the Flag
Protection Amendment. Throughout our nation's history, the flag has been protected by law. In 1989, 48 of our 50 states had statutes
restricting flag desecration. In 1974, Supreme Court Justice Byron White wrote that: "(T)here would seem to be little question about
the power of Congress to forbid the mutilation of the Lincoln Memorial or to prevent overlaying it with words or other objects. The
flag is itself a monument, subject to similar protection." I agree with Justice White — the American flag is our monument in cloth.
But its protection ended in 1989, when the U.S. Supreme Court struck down a Texas law prohibiting flag desecration. Congress
responded by passing the Flag Protection Act of 1989, but the Supreme Court struck down that law as well. The only way to restore
protection to the flag is to amend the Constitution. Otherwise, any legislation passed by Congress would be struck down. The Flag
Protection Amendment would not prohibit flag burning. Rather, the Amendment would simply return to Congress the ability to protect
the flag as it has been protected throughout most of this nation's history. Some opponents of the Flag Protection Amendment argue
that we must choose between trampling on the flag and trampling on the First Amendment. I strongly disagree. There is no idea or
thought expressed by the burning of the American flag that cannot be expressed equally well in another manner. This Amendment
would leave both the flag and free speech safe.
Failure to punish flag-burning traitors results in the destruction of all American values—it threatens the very survival of our
democracy
Shapiro 06 [Ben, Political Analyst, “The Case for the Flag-Protection Amendment,” June 28,
www.townhall.com/columnists/BenShapiro/2006/06/28/the_case_for_the_flag-protection_amendment]
Not all expression or speech contributes to the political debate. That is why the First Amendment does not protect flag burning, just as
it does not protect lap dances, sodomy, public nudity or child pornography. All of these may be labeled "expressive speech." All of
them would land you in jail for most of our history. For nearly two centuries, states prosecuted flag burners. And for nearly 200 years,
the federal courts recognized that the First Amendment did not prohibit states from such prosecution. In 1989, the Supreme Court
suddenly decided that 200 years of legal interpretation were dead wrong. "The way to preserve the flag's special role is not to punish
those who feel differently about these matters," wrote Justice Brennan. "It is to persuade them that they are wrong. We can imagine no
more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting
the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according
its remains a respectful burial." This is idiocy, and dangerous idiocy at that. The American flag represents our nation; it represents
American values; it represents the blood of those who have died and continue to die on battlefields across the world to protect our
freedoms. The American flag does not represent the nonexistent right of traitors to desecrate the stars and bars. When the American
flag is burned, it represents a denial of the most fundamental notion of citizenship. Those who burn the flag are no less traitors
than those who renounce their citizenship to fight with our enemies. To state that burning the flag is a legitimate form of expression
and that we should respond by waving a flag of our own, is to turn political debate from cogent argument to slogan-screaming. If
America is to survive, we must recognize that all parties in political debate have a common ground: belief in America as a nation.
The flag represents that belief. Once that common ground is burned, our republic becomes nothing more than an agglomeration of
selfish interest groups fighting over scraps of meat.
For every action there is an equal and opposite government program – Bob Wells
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48/64
AT: AMENDMENTS BAD (HAMESATH)
No nuclear war impact – Hemesath is talking about the status quo
Hemesath 2k [Paul A., JD @ Georgetown, 88 Geo. L.J. 2473, ln]
Although these positions would make for fascinating oral argument before the Supreme Court in times of peace, they constitute a
harrowing threat to the legitimacy of the decision if conducted in the throes of a nuclear crisis. One would predict that in such a
scenario the Congress, for lack of an effective remedy, 182 would go to the courts to seek enforcement of an arguable, but well
[*2499] supported, constitutional prerogative. Under the status quo, the results of such a venture into the lower judiciary would be
unpredictable and, based on the lack of controlling precedent or constitutional authority, subject to extreme controversy. In the case of
an offensive nuclear attack, the importance of a coherent and legitimate decision cannot be overestimated. Even with the force of a
congressional declaration of war, Harry Truman still faced critics that questioned the sagacity of his atomic decision in World War II.
183 Although the wisdom of any nuclear use may always remain open to criticism, the legality of such a decision should be beyond
reproach. As previously noted, the potentially "unlimited costs" of a nuclear war are extremely difficult to fathom, both physically and
politically. 184 A legitimate decision to utilize a nuclear weapon thus requires a high level of legality and consensus--two qualities
that cannot be attained with a Congress plausibly asserting the nonexistence of the Executive's very constitutional authority to carry
out the act. V. AN APPROPRIATE RESPONSE TO THIS PROBLEM Finding a resolution to nuclear war powers uncertainty is not
an obvious endeavor. However, the harms associated with an unprepared and contentious "on-the-fly" decisionmaking process are
serious enough to demand a principled solution based on the Constitution and not on improvised convenience. To reach such a
solution, Congress must cohere in an attempt to draft an unambiguous War Powers Act and proceed to pursue remedies in the courts
well in advance of a nuclear crisis. In return, the courts must either deign to decide the issue on its merits, or provide a definitive
jurisdictional holding upon which the courts and the President may come to rely.
For every action there is an equal and opposite government program – Bob Wells
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49/64
AT: AMENDMENTS BAD (CIVIL WAR)
A second civil war is impossible
Matthew Dysart, BA Tufts University, Tufts Daily, 10-19-2004
(http://www.tuftsdaily.com/media/storage/paper856/news/2004/10/19/Viewpoints/The-Second.Civil.War.Is.Coming1489096.shtml?norewrite200609201502&sourcedomain=www.tuftsdaily.com)
Scared yet? Well, don't be. In truth, "CW2" is incredibly unlikely now, because most of our states no longer have the "critical mass"
needed to ferment a revolt. Kentucky, a "slave state," couldn't secede from the Union during the Civil War because its population was
too politically diverse. Today's bitter divisions are best understood not as Red vs. Blue States, but Red vs. Blue Counties. Nearly every
state's party loyalties are closely split, with one party generally gaining the advantage by less than twenty percent. States like Utah,
Texas and Georgia are outliers for the Republicans, as are New York, Rhode Island and Massachusetts for the Democrats.
**Note -- CW2 = Civil War 2
Amendments prevent civil war by creating a legitimate and peaceful way to change the constitution
Denning and Vile 02 [Brannon P., Prof of Law @ Samford, and John R., Dept. Chair of PoliSci @ MTSU, “The Relevance of
Constitutional Amendments: A Response to David Strauss,” 77 Tul. L. Rev. 247, ln]
Though Strauss derides the idea of fundamental change enacted by "We the People," assuming our sovereign prerogative as romantic
piffle that the United States, as a "mature [democratic] republic," should have outgrown, 123 it is clear that the Framers saw the
Article V amendment process as a way to domesticate revolution. 124 At the Constitutional Convention, Virginia's George Mason
noted: "The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments
therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance
and violence." 125 Recognizing the potential power of amendments and the potential for frequent changes to undermine respect for
the Constitution, the American Founders generally counseled great restraint in its use. 126 But despite the fact that it has never been
used, [*278] the way for a reprise of the 1787 Convention is clearly marked by Article V. This allows a method for "We the People"
to enact our own version of the Founding, while providing continuity with the past by using mechanisms in the old Constitution to
midwife a new political order. Article V respects the right of the present to correct mistakes, while allowing us to precommit future
generations to a present generation's version of the good life. The amending process, moreover, ensures that large-C-Constitutional
changes enacted through Article V will come into being with a presumption of legitimacy, as we discuss in the next Part.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
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AT: WATSON (HOWARD LAW REVIEW)
Their ev assumes an amendment that stop judicial enforcement of rights, not an amendment that expands rights
Howard Law Review 83 [“The Helms-Johnston Amendment: A Congressional Effort to Curb the Jurisdiction of Federal Courts and
to Restrict Busing as a Remedy in School Desegregation Cases,” 26 How. L.J. 1661, ln]
The Helms-Johnston Amendment is intended to restrict the jurisdiction of the federal courts to protect the constitutional rights of
citizens in school desegregation cases. The Johnston portion of the Amendment provides limits on the extent to which federal courts
may order transportation of school children to schools other than those nearest their homes. 1 The Helms portion of the Amendment
prohibits the United States Justice Department from maintaining any action to require transportation of students other than to the
school nearest their homes. 2
For every action there is an equal and opposite government program – Bob Wells
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AT: CONVENTION CHANGES AMENDMENT PROCEDURES
No chance—only Congress could change Amendment procedure
Taylor 06 [Arthur H., CFO of American HealthNet, “Fear of an Article V Convention,” 20 BYU J. Pub. L. 407, ln]
The only fear not already considered or measured is the fear that a convention, despite the clear language of Article V, might change
the ratification requirements, thus rendering the above analysis incomplete. 17 [*422] Even these fears, however, when examined
with greater scrutiny, reveal their weak underpinning. There are several reasons why. First, the suggestion that the founding
convention changed the ratification requirements is unwarranted. It would be more accurate to say that they proposed that Congress
change the ratification requirements. 18 There is nothing in the action of the convention which presumed to unilaterally, without
Congressional action, alter the ratification requirement of the Articles of Confederation from unanimous approval by the thirteen states
to require only nine. It is not that Article VII of the drafted constitution didn't make a change - it did. It's that in doing so, the
Convention fully recognized that only Congress could, with authority, present the change in ratification to the States. In his final
speech to the Convention, Benjamin Franklin plainly referred to the fact that their action was subject both to congressional approval
and ratification by the states. 19 The subsequent debate in Congress evidenced the same view as well. 20 [*423] So the Convention
didn't change the ratification requirement, it simply proposed a change to Congress, who authorized consideration of the change to the
States 21 where nine states ultimately agreed. 22 So the scope of the fear based on precedence should not be that a convention itself
might change the ratification requirements, but that Congress might endorse a proposed change in such requirements. Furthermore,
Article V retains Congressional control over the ratification procedure itself. Again it is typically suggested that Congress chooses the
mode of ratification, whether it be by state legislature or by state convention. This also is inaccurate - or at least incomplete - since
Article V states, in relevant part, that, The Congress ... shall propose amendments to this Constitution, or ... shall call a convention for
proposing amendments, which, in either case, shall be valid ... when ratified by the legislatures of three fourths of the several states, or
by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress ... . 23 The
authority given Congress is not only to specify whether state legislatures or state conventions ratify an amendment, but whether
"legislatures of three fourths of the several states" or "conventions in three fourths thereof" shall perform the ratification. Congress not
only specifies the body to ratify, but the required level of ratification as well - set at three fourths. There is no judicial precedent to
suggest that the States, already bound by constitutional agreement one to another, have the authority to abrogate that agreement by
their own action without the consent of the Congress. Congress consented then, and it would have to consent now, to [*424] any
future change. In fact, Congress could choose to withhold specification of the means of ratification until after an Article V convention
actually proposes an amendment. While they must specify a means, there is no requirement that they do so in advance, nor have they
done so in advance of proposing amendments themselves. By withholding specification of the ratification method until after an
amendment is proposed, they thus retain the authority, granted by the language of Article V to reject fully any change in the
ratification process. The fear, if any, should then rightfully be directed towards Congress, which, given the significant loss of
exclusive power to propose democratic amendments, is unlikely to appease generously any such change proposed by the States. The
fear that a convention would change the ratification requirements thus neglects the evidence of history, defies the express language of
Article V, and is based on an un-cited and unprecedented view of common law convention authority never before exercised in our
nation's history.
Congress won’t change ratification requirements
Taylor 06 [Arthur H., CFO of American HealthNet, “Fear of an Article V Convention,” 20 BYU J. Pub. L. 407, ln]
The likelihood of a change in ratification requirements today is quite remote given the gap in interests between the States and
Congress and the Supreme Court which would, by precedent, be the necessary determiners of the question. Furthermore, Congress can
simply veto the submission to the States of an amendment with a purported change in ratification standards under existing Article V
language. The legal and political barriers to such a change today are thus formidable.
For every action there is an equal and opposite government program – Bob Wells
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AT: STRAUS
Specificity ensures solvency
Strauss 01 [David A., not David P. but Prof of Law @ Chicago, 114 Harv. L. Rev. 1457, ln]
Finally, for an amendment to matter, it must be unusually difficult to evade. An amendment that specifies a precise rule, for example,
is more likely to have an effect than one that establishes only a relatively vague norm. If its text is at all imprecise, an amendment that
is adopted at the high-water mark of public sentiment will be prone to narrow construction or outright evasion once public sentiment
recedes, as the Fourteenth and Fifteenth Amendments were.
Strauss is wrong
Denning and Vile 02 [Brannon P., Prof of Law @ Samford, and John R., Dept. Chair of PoliSci @ MTSU, “The Relevance of
Constitutional Amendments: A Response to David Strauss,” 77 Tul. L. Rev. 247, ln]
But let us concede, for the sake of argument, that informal channels for constitutional change would have developed. 28 We are then
faced with another of Strauss's troubling assumptions: that constitutional change advances, uninterrupted, toward whatever
progressive norms that we have heretofore relied on amendments to install in the Constitution - racial equality, full political
participation for women and eighteen-year-olds, and the elimination of barriers to [*256] full enfranchisement for the poor and other
minorities. 29 In Strauss's world, there is no reaction, no backlash that forestalls future gains (perhaps placing them out of reach), and
no backsliding by courts or legislatures. Again and again, he assures us that whatever gains were secured by amendment were already
secured in large part or would have been in due time, amendment or not. 30 But often these assertions are made on his own
authority, and he does not entertain the possibility that circumstances would have intervened that slowed change, or reversed its
direction. Even in the case of a failed amendment, one might argue that by putting the change sought on the Nation's political
agenda, the amendment's proponents acted as a catalyst for that change, which, in the absence of an amending mechanism, would
not have otherwise progressed in the same way. 31 Strauss also ignores the inherently unstable nature of informal change.
Congress may pass laws, but those laws are subject to repeal (or presidential veto). Executive orders may be rescinded. Court
decisions may be overruled, distinguished, or ignored. And so on. Consider the New Deal. David Kyvig contrasts Reconstruction with
the New Deal by noting the absence of any trace left by the latter in [*257] the text of the Constitution. 32 If Strauss's theory is
correct, one would have expected that the Supreme Court's federalism decisions during the 1990s (and early 2000s) would have
encountered more resistance from a public that had demanded substantial changes to the small-c-constitution effected after 1937. 33
Yet it is precisely because the New Deal did not enshrine its changes in the Constitution that change was provisional and subject to
yet more change in the future. 34
Strauss’s arguments against amendments destroy respect for the constitution
Denning and Vile 02 [Brannon P., Prof of Law @ Samford, and John R., Dept. Chair of PoliSci @ MTSU, “The Relevance of
Constitutional Amendments: A Response to David Strauss,” 77 Tul. L. Rev. 247, ln]
Despite Strauss's iconoclastic title and sweeping statements about the worthlessness of constitutional amendments, we think that
Strauss's argument can be recast in two parts, both of which we affirm. First, Article V amendments are neither the alpha nor omega of
constitutional change in America; change occurs in a variety of informal ways with effects that can be just as momentous as a formal
amendment. Second, a formal amendment is neither a necessary nor a sufficient condition for effecting constitutional change. These
points are true. But neither point proves amendments' irrelevance, nor proves that constitutional changes wrought through the
amendment process would have come about even in the absence of a formal amendment process. Moreover, we argue that Strauss
unnecessarily downplays the values of formal amendments that he identifies - the settling and suppression functions - and ignores or
does not consider other, valuable functions that the Article V amendment process and written constitutions serve in general.
Furthermore, Strauss's thesis has troubling implications for the rest of the Constitution. Its logic does not seem easily confined to
constitutional amendments. If the amendments are not important, then what about the rest of the Constitution? Written constitutions in
general? Strauss might say that, eventually, institutions would develop on their own, and that taking the trouble to write a constitution
is either superfluous (since everyone would agree anyway) or futile (since, if everyone does not agree, they will just find ways around
the inconvenient parts). If so, then Strauss's vision for our political future is much more radical than he lets on. For if formal changes
are irrelevant and unimportant, then why should the rest of the document (including the Bill of Rights) warrant any respect from
citizens or their governmental agents? 136 [*282] If he is constructing a brief for the "unwritten constitution," like Great Britain's, it is
perhaps interesting to note that "mature democracies" like Britain are, at the dawn of the twenty-first century, opting for more and
more written-ness by adopting bills of rights. 137 In any case, the suggestion that constitutional amendments are worthless may carry
with it an element of the self-fulfilling prophesy, as well as the germ of an idea that is alien to the United States' primary contribution
to modern political theory, the written constitution.
For every action there is an equal and opposite government program – Bob Wells
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*** JUDICIAL INTERPRETATION NET BENEFIT ***
For every action there is an equal and opposite government program – Bob Wells
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EXT – AMENDMENTS KEY TO POLITICAL ENGAGEMENT
Supreme Court decisions about important values of the republic screws the political process and the issue in question.
Worthen in 4 <Kevin J. (Professor of Law and Associate Dean, J. Reuben Clark Law School, Brigham Young University), BYO Journal of Public Law, “Same-Sex
Marriage Symposium Issue: Who Decides and What Difference Does It Make?: Defining Marriage in “Our Democratic, Federal Republic,” 18 BYU J. Pub. L. 273,
2004, lexis>
[*292] An equal protection decision would arguably be consistent with all the premises of "our" system of government. While such a decision would clearly be based
on a substantive value -- equality -- that value finds express mention in a constitutional amendment ratified by a sufficient number of states to largely satisfy both the
democratic and federal features of "our" system of government. n76 Moreover, equality is a value norm which arguably is an essential feature of both
the relatively valuefree classic liberalism philosophy n77 and the more value-shaping philosophy of classic republicanism. n78 The main
objection to such a ruling would, therefore, be that it might not comport with the democratic component of "our" system because, while the people clearly inserted the
general concept of equality into the constitution, in the absence of an amendment specifically addressing its application to same-sex marriage, it is less clear that they
would want the equal protection clause applied in any particular manner on that issue. n79
On the other hand, a decision resolving the issue (likely in favor of same-sex marriage) on privacy grounds -- which after Lawrence v. Texas, n80 seems like the most
likely alternative candidate -- would arguably violate the democratic principle of "our" system of government . Non-textual substantive value judgments
made by governmental actors who are not elected representatives of the sovereign people run the risk of creating one kind of tyranny
"our" system was designed to prevent -- extraneous creation and imposition of values.
More importantly, a non-textual privacy based decision would potentially violate the classic republican feature of "our" system by
alienating [*293] from that system those who oppose the decision. Such alienation can well lead to withdrawal from the political
process, or worse, to efforts to resolve the issue outside that process, as demonstrated by a similar nontextual, value-based Supreme
Court decision on the abortion issue. n81 The impact on the classic republican features of our system could be especially harmful were
the Court to base its decision on the assertion in Lawrence that a state cannot regulate a practice merely because "a governing majority in [the] State has
traditionally viewed [it] as immoral," n82 a statement seemingly at odds with the central premise of civic republicanism that government has a
role to play in shaping and implementing shared moral principles.
The alienation that could result from such a decision might adversely impact not only our system of government, but also the viability
of the proposed resolution of the dispute itself. As the long-running post-Roe v. Wade n83 controversy concerning abortion indicates, judicial
resolution of value disputes at a national level may cause an issue to be more, not less, contentious in the long run. n84
For every action there is an equal and opposite government program – Bob Wells
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EXT – AMENDMENTS KEY TO POLITICAL ENGAGEMENT
Non-Article V constitutional change sets dangerous precedents and kills discussions of issues
Denning ’97 (Brannon P, Research Associate & Senior Fellow, Yale Law School JD; 65 Tenn. L. Rev. 155 ln)
Non-Article V change can produce the same sort of "quick decision" as an amendment through direct democracy, which I earlier
criticized. In such cases, there is often a rush to address subjects that evoke highly emotional responses and on which there is not
even an emerging consensus. Moreover, custom and usage changes are often reactions to specific situations, and not long-term
solutions. These constitutional quick fixes at best produce unintended or unanticipated results; at worst, they can furnish
dangerous precedents for future political actors. The constitutional decadence to which I alluded above has an atrophying effect
on our constitutional discourse as a whole. By "ratifying" change outside Article V, we are encouraged to assume less
responsibility for the change we desire. As a result, we become incapable of sustaining a national discussion on important
constitutional issues.
The Amendment process is key to publicizing the issue and sparking debate
Denning & Vile ’02 (Brannon P, Assistant Prof of Law, Southern Illinois University School of Law; John R, Chair, Dept of Political
Science @ Middle Tennessee State University; November, 77 Tul. L. Rev. 247 ln)
Proposals for constitutional amendment inevitably attract publicity. The debates in Congress publicize the change and allow a
forum for proponents and opponents of the change to make their case both to members of Congress and to those who will
eventually be called upon to ratify the amendment, if passed. Even amendments that Strauss would characterize as "do-nothing"
amendments (the Twenty-Seventh Amendment, for example) received the attention of Congress and the press n130 that only the
most dramatic informal constitutional changes do. The educative function of the debate aside, if proposed and ratified, a formal
amendment undeniably changes the Constitution in one significant respect: it adds language to the Constitution. Thus, to every
person who bothers to look at a copy of the Constitution, the change will be noticed. This textual referent, being available and
apparent, enables more people to understand the fact that there has been constitutional change and to take note of it than if the
change comes informally, as the culmination of doctrinal evolution in the Supreme Court or by accretions that harden into
custom in the other branches. The publicity accompanying the change may, in fact, increase public expectations that the change
will be honored by the other branches, raising the costs of evasion or under-enforcement. n131 [*280] One might as well argue
against a written constitution as against amendments; neither are sure guarantees. There is reason to believe, however, that the
American Founders, drawing in part from the Protestant heritage that stressed the authority of written scriptures, were not
completely mistaken in believing that written words available for inspection by all may often have a force that words not reduced
to writing may not. Not for nothing did Washington's farewell speech refer to constitutional change through explicit, as well as
authentic acts. n132 It might be worth remembering that the correspondence between Jefferson and Madison in many ways
echoed the debates that had taken place when America separated from England. Students of comparative government know that
Great Britain does not have a written constitution. n133 Perhaps more accurately, while parts of the British constitution are
written and parts are unwritten, the "constitution" is not perceived - like the American Constitution - to be superior law
unchangeable by ordinary legislative means. Although believing that natural law should regulate the conduct of lawmakers, De
Lolme argued that the Parliament had the power to do anything but change a woman into a man or a man into a woman - that is,
anything other than that which was then considered beyond the realm of human action. n134
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EXT – POLITICAL ENGAGEMENT KEY TO LIBERTY
Reduction of political resistance leads to unchecked infringement on liberty
Twight 2K (Charlotte Twight, Research Fellow at The Independent Institute, Professor of Economics at Boise State University, 10-12K “Constitutional Counterrevolution” http://www.independent.org/publications/article.asp?id=277)
Mr. Madison, we are losing the liberty for which your generation committed their “Lives . . . Fortunes, and . . . sacred Honor” in
part because government officials have perfected techniques for reducing effective resistance to liberty’s erosion. Those
techniques characteristically have entailed government manipulation of political transaction costs. Today, no matter how many
angry citizens call radio talk shows, few take serious political action to oppose government’s expanded role, in part because of
the artificially increased personal costs of so doing. Federal officeholders, in turn, continue to find the strategy appealing because
it frequently enables them to obtain results they want without resort to overt coercion, relying instead on changing people’s
individual incentives to resist. No conspiracy underlies these developments. Rather, they reflect personal incentives (political,
economic, and ideological) impelling self-interested federal legislators, Supreme Court justices, bureaucrats, and other executive
branch officials to create transaction-cost barriers for people who hold different political views. Mr. Madison, a constitutional
counter-revolution has occurred, without a shot being fired, and with barely a whimper from an increasingly ill-educated
populace. Unfortunately, the longer it endures, the less the likelihood of liberty’s restoration, owing to the ideological changes
that accompany long-standing exercise of expanded government power. As the twentieth century ends, let us hope that
government-spawned transaction-cost barriers to liberty-restoring change have not permanently tipped the scales against the
freedom that we both hold so dear.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
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Amendment Counterplan
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2NC DEMOCRACY IMPACT
Court interpreting the constitution kills democracy- the people can’t chose to change the Constitution.
Presser in 0 <Stephen B. (Raoul Berger Professor of Legal History, Northwestern University School of Law, and Professor of
Business law, Kellogg Graduate School of Management and Strategy, Northwestern University), Texas Review of Law & Politics,
“Constitutional Amendments: Dangerous Threat or Democracy in Action?” Fall 2000, lexis>
[*218] If there is one hallmark of constitutional jurisprudence in the last thirty years it is that the Supreme Court has sought to
simultaneously expand the category of individual rights protected by the Constitution while restricting the ambit that state and local
governments have to implement the desires of the community. n38 No doubt this has pleased some libertarians, but it ought to give
pause to those committed to popular sovereignty. There is reason to wonder whether the Supreme Court is sufficiently committed to
this first principle of constitutional governance. The authors of the Guidelines nod in the direction of making our system more
"democratic," or "more politically responsive." n39 They are certainly aware that "there is an obvious tension between the twin
[Constitutional] goals of majority rule and protection for individuals." n40 Still, included as an appendix to Great and Extraordinary
Occasions is Professor Kathleen M. Sullivan's warning of a "mutiny against the authority of the Supreme Court." n41 Ms. Sullivan
praises the fact that "the Supreme Court has been given enough interpretive latitude to adapt the basic charter to changing times" and
claims that "our high court enjoys a respect and legitimacy uncommon elsewhere in the world. That legitimacy is salutary, for it
enables the Court to settle or at least defuse society's most ideologically charged disputes." n42 Not only can one question Ms.
Sullivan's conclusion that the Supreme Court is able to "settle or at least defuse society's most ideologically charged disputes," but one
is also given pause by her clear suggestion that if the Constitution is to be altered, it is the Court, rather than the people, that should
alter it.
Democracy solves war.
Washington Times in 2 <The Washington Times, “Peaceful democracies; Supporting freedom abroad will reduce conflicts,” June 13,
2002, lexis>
One of the biggest reasons, if not the biggest, for supporting democratic nations like Israel and Taiwan against their enemies is not
merely because they are democracies but, equally important, that history shows that democracies do not fight each other regardless of
cultural, political and economic differences between them. In other words, the more democracies in the world, the greater assurance of
world peace. Modern wars have either been between dictatorships, theocratic or secular, or between a democracy and a nondemocracy.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
58/64
*** CONCON ***
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
59/64
AMENDMENT COUNTERPLAN 1NC 1/3
Counterplan Text: Two thirds of the states should call a limited constitutional convention establishing that ________________
____________________________________________________________________________________________________________
_______________________________________________________ and three fourths of the states should ratify that amendment.
Contention 1 is Competition: Counterplan competes through the court disad net benefits, and they chose grounds to rule on,
means perm links to overrule.
Contention 2 is Solvency:
Amendments can overturn the Supreme Court
Schaffner 2005, American University Law Review, Associate Professor of Law, George Washington University Law School
Because the judicial branch has the ultimate authority over constitutional interpretation and construction, the only "check" on
judicial power of constitutional interpretation is the constitutional amendment process. The amendment process should be
used to overturn the Court only when it acts beyond its powers or inconsistently with constitutional principles. Otherwise, the
careful balance of powers among the branches is compromised. The history of amending the Constitution to overrule Supreme
Court decisions is consistent with this view and is particularly relevant here. While the U.S. Supreme Court is not being
overturned by the FMA, the Massachusetts Supreme Judicial Court's Goodridge decision is in jeopardy. Goodridge was the
catalyst for the fervor behind the proposed marriage amendment. Moreover, the FMA will forever prevent the U.S. Supreme
Court from addressing the issue. Only four constitutional amendments have been adopted to overrule the Supreme Court.
n186 They are: (1) the Eleventh Amendment, which overruled Chisolm v. Georgia; n187 (2) the Thirteenth Amendment and,
most specifically, the first sentence of the [*1519] Fourteenth Amendment, n188 which overruled Dred Scott v. Sanford; n189
(3) the Sixteenth Amendment, which overruled Pollack v. Farmer's Loan & Trust Co.; n190 and (4) the Twenty-Sixth
Amendment, which overruled Oregon v. Mitchell. n191 As we will see, each amendment was in harmony with the basic
principles that underlie the Constitution - individual rights, separation of powers, and federalism. Moreover, in the cases
where fundamental liberty interests were at stake, the amendment reestablished individual rights in light of the Court's
limited interpretation of those rights. Without analyzing the propriety of the individual Supreme Court decisions, the
following will demonstrate that, unlike the FMA, the use of the amendment power to overrule these cases was proper and
consistent with basic democratic principles.
And the amendment won’t be challenged or rolled back
Vermeule ‘04 [Adrian, Prof @ Chicago Law, “Constitutional Amendments and the Constitutional Common Law,”
http://www.law.uchicago.edu/academics/publiclaw/index.html]
A benefit of formal amendments, then, is to more effectively discourage subsequent efforts by constitutional losers to overturn
adverse constitutional change. Precisely because the formal amendment process is more costly to invoke, formal amendments are
more enduring than are judicial decisions that update constitutional rules; so losers in the amendment process will less frequently
attempt to overturn or destabilize the new rules, in subsequent periods, than will losers in the process of common-law
constitutionalism. This point does not necessarily suppose that dissenters from a given amendment come to agree with the enacting
supermajority’s judgment, only that they accept the new equilibrium faute de mieux. Obviously more work might be done to specify
these intuitions, but it is at least plausible to think that the simplest view, on which formal amendments incur decisionmaking costs
that exceed their other benefits, is untenably crude. The overall picture, rather, is a tradeoff along the following lines. Relative to
common-law constitutionalism, the Article V process requires a higher initial investment to secure constitutional change. If Mueller is
right, however, constitutional settlements produced by the Article V process will tend to be more enduring over time than is
judicial updating, which can be unsettled and refought at lower cost in subsequent periods.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
60/64
CLEARING UP THAT WE CAN DO THIS
John A. Eidsmoe (Professor of Law, Thomas Goode Jones School of Law, Faulkner University) 1992: A New Constitutional
Convention? Critical Look at Questions Answered, and Not Answered, by Article Five of the United States Constitution. Lexis
As noted earlier, Article V provides two means by which the Constitution may be amended: by two-thirds of both houses of Congress
(the Congress route), or by [*49] convention called by the legislatures of two-thirds of the states (the convention route). Since 1789
the people of this nation have amended our Constitution twenty-six times using the Congress route. The convention route has been
tried many times but never successfully, though on several occasions proponents came close to success.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
61/64
AT: FED KEY
Concon isn’t the vehicle – it simply focuses attention on the issue, and then congress passes the amendment
John A. Eidsmoe (Professor of Law, Thomas Goode Jones School of Law, Faulkner University) 1992: A New Constitutional
Convention? Critical Look at Questions Answered, and Not Answered, by Article Five of the United States Constitution. Lexis
Concon proponents insist that the prospect of a new constitutional convention actually taking place is really very remote. Rather, it is
much more likely that if thirty-four states call for a convention, Congress will simply pass the balanced budget amendment, and the
need for a convention will thereby be eliminated. The reason they are calling for a Concon, they say, is to force a reluctant Congress to
act. James Clark, a founder of the National Taxpayers' Union and leading Concon proponent, puts it this way: "This is just a way of
getting attention -- something akin to batting a mule with a board." 16
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
62/64
AT: RUNAWAY AMENDMENTS TURN
Our text has the word “limited” – fiats out of the turn. And, that’s statutorily possible – expert consensus
Eidsmoe ‘92
(John Eidsmoe, Professor of Law, Faulkner University; Constitutional Attorney; Lieutenant Colonel, United States Air Force Reserve,
“A New Constitutional Convention?” 3 USAFA J. Leg. Stud. 35, l/n)
CAN THE SCOPE OF A CONVENTION BE LIMITED? Concon opponents raise the spectre of a runaway convention. Thirty-four
states, sincerely concerned about Congress's fiscal irresponsibility, call for a convention to consider a balanced budget amendment.
But the convention doesn't stop there. It goes on to consider right to life amendments, school prayer amendments, equal rights
amendments, limitation of congressional terms amendments, gun control [*45] amendments, flag desecration amendments, and even
considers entirely new constitutions. Concon proponents answer that these fears are totally unfounded. States may limit the
convention to a single issue by calling for a convention for that limited purpose. Likewise, Congress, in calling the convention, may in
its statutory call limit the convention's authority and purposes. The late Senator Everett Dirksen (R-Ill) believed a convention could be
limited: I apprehend that when the applications are for a stated purpose or amendment . . . then in effect the state legislatures, which
alone possess the initiative in convening a convention, have by their own action taken the first step toward limiting the scope of the
convention. It would then remain for the Congress to implement this attempt to limit the convention by making appropriate provision
in its call. n22 The late Senator Sam Ervin (D-NC), regarded as one of the leading constitutional experts ever to serve in the U.S.
Senate, also believed the states and Congress can limit the scope of a convention. n23 The American Bar Association conducted a
detailed study of the issue and reached the same conclusion in 1973. n24
Historical support – empirically denied over 200 times and also by the very existence of Congress
Eidsmoe ‘92 [quals added]
(John Eidsmoe, Professor of Law, Faulkner University; Constitutional Attorney; Lieutenant Colonel, United States Air Force Reserve,
“A New Constitutional Convention?” 3 USAFA J. Leg. Stud. 35, l/n)
Lewis K. Uhler [founder and President of the National Tax Limitation Committee] dismisses the notion of a runaway convention,
noting that well over two hundred state constitutional conventions have taken place in our nation's history. "A recent study," he
says, "reveals that over our entire history, only three or four conventions have sought to exceed the scope of their call, and they were
disciplined by the convening authority or the court." n29 Furthermore, he says, Congress has the authority to pass constitutional
amendments (subject to state ratification) whenever it chooses; Congress is, he says, a continuing "general constitutional convention."
n30
Ratification checks – the people won’t ratify runaways which also deters it from happening
Eidsmoe ‘92
(John Eidsmoe, Professor of Law, Faulkner University; Constitutional Attorney; Lieutenant Colonel, United States Air Force Reserve,
“A New Constitutional Convention?” 3 USAFA J. Leg. Stud. 35, l/n)
Proponents of a new constitutional convention insist that a runaway convention is not a realistic threat to our system of government,
because nothing proposed by the convention can have force and effect unless and until it is ratified by three-fourths of the states. The
delegates themselves must realize that there is little point in proposing anything that the people won't accept. The ratification
requirement should keep conventions from exceeding their authority, or if they do exceed their authority, the ratification requirement
will prevent any lasting harm to the nation.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
63/64
AT: ECON TURN
1. Assumes blank slate for regulation in a total concon – the counterplan text limits it to just the aff –
2. And, that solves any risk of runaway
Eidsmoe ‘92
(John Eidsmoe, Professor of Law, Faulkner University; Constitutional Attorney; Lieutenant Colonel, United States Air Force Reserve,
“A New Constitutional Convention?” 3 USAFA J. Leg. Stud. 35, l/n)
CAN THE SCOPE OF A CONVENTION BE LIMITED? Concon opponents raise the spectre of a runaway convention. Thirty-four
states, sincerely concerned about Congress's fiscal irresponsibility, call for a convention to consider a balanced budget amendment.
But the convention doesn't stop there. It goes on to consider right to life amendments, school prayer amendments, equal rights
amendments, limitation of congressional terms amendments, gun control [*45] amendments, flag desecration amendments, and even
considers entirely new constitutions. Concon proponents answer that these fears are totally unfounded. States may limit the
convention to a single issue by calling for a convention for that limited purpose. Likewise, Congress, in calling the convention, may in
its statutory call limit the convention's authority and purposes. The late Senator Everett Dirksen (R-Ill) believed a convention could be
limited: I apprehend that when the applications are for a stated purpose or amendment . . . then in effect the state legislatures, which
alone possess the initiative in convening a convention, have by their own action taken the first step toward limiting the scope of the
convention. It would then remain for the Congress to implement this attempt to limit the convention by making appropriate provision
in its call. n22 The late Senator Sam Ervin (D-NC), regarded as one of the leading constitutional experts ever to serve in the U.S.
Senate, also believed the states and Congress can limit the scope of a convention. n23 The American Bar Association conducted a
detailed study of the issue and reached the same conclusion in 1973. n24
3. Terminally non-unique – confidence just tanked and will predictively decline
Bloomberg News 7/15
(http://www.bloomberg.com/apps/news?pid=20601087&sid=aEbMC4dJFEWk)
Investor sentiment for U.S. stocks fell to the lowest level since March and confidence in equities around the world declined as
prospects for the global economy worsened in June, according to a survey of Bloomberg users. / The Bloomberg Professional
Confidence Survey’s measure for the Standard & Poor’s 500 Index fell 14 percent to 39.59 in July, its second consecutive drop.
Readings below 50 show participants expect equity prices will decrease in the next six months. The 2,088 respondents also said the
outlook has worsened for stocks in Brazil, Japan, Spain, Switzerland and the U.K., the broadest sentiment slump in four months. / The
MSCI World Index of 23 developed nations declined 4.7 percent after it became the most expensive compared with profits since 2004
and the World Bank said June 22 that the recession will be deeper than previously forecast. In the U.S., the jobless rate reached a 26year high and consumer optimism unexpectedly fell.
4. Fortunately, the SEC will prevent it from tilting into a full-blown Great Depression
Amadeo ‘7
(Kimberly Amadeo, Market Research, the Arizona Republic, “the U.S. Securities and Exchange Commission,”
http://useconomy.about.com/od /governmentagencies/p/SEC.htm)
The SEC increases transparency and trust in the U.S. stock market, which makes it the most sophisticated and popular stock
exchange in the world. This attracts much business to U.S. financial institutions, including banks, investment banks, and legal firms. /
It also makes it easier for companies to “go public”, when they have grown large enough to need to sell stock to finance their next
phase of development. The ease of going public helps U.S. companies grow larger and faster than those of other countries with less
developed markets. / How the SEC Affects You: / The SEC affects you by making it safer for you to buy stocks, bonds and mutual
funds. In addition, by helping the U.S. economy, the SEC contributes to the high standard of living we enjoy today. Not to sound like
a commercial, but thanks to the SEC, there is little chance that we will again experience a Great Depression.
For every action there is an equal and opposite government program – Bob Wells
Tampa Prep 2009-2010
Gonzo and Lison
Amendment Counterplan
64/64
AT: CONCON ILLIGIT
1.) Counter-interpretation – we can only read ConCon when we have a solvency advocate.
2.) Solves predictability – proves they should have found it while doing aff research. Existence of neg lit logically proves
existence of responsive aff lit.
3.) Link turns topic-specific education – discussion by academic scholars proves it’s a nexus question of the mechanism for this
topic. And, literature-grounded education outweighs fairness – it’s the only lasting impact of the activity.
4.) Key to limit infinite courts affs – changing levels of scrutiny for infinite substantive and procedural due process cases
means affs could walk into each tournament overruling a different case. The question of precedent means ConCon is the only
counterplan with a chance.
5.) The role of the ballot for this counterplan is to evaluate policies from the perspective of an external analyst at a thinktank.
This is key to portable benefit to debate – most of us won’t become policymakers.
6.) Err neg – massive Obama government spending now makes disad uniqueness hard. They speak first and last, have infinite
prep, and choose the area of debate.
7.) Worst-case reject the argument not the team. [We’re not extending T – cross-apply their reasonability argument.]
For every action there is an equal and opposite government program – Bob Wells