Legalizing the States Counterplan
This article was originally published in December 2009 in the Rostrum.
In April, a series of respected debate figures published their disgust with the States Counterplan on eDebate1 . Much of this frustration relies on two assumptions—that uniform state action is unrealistic, and that no one spends time drafting or proposing uniform state laws.
Regardless of your final take on the States CP, these core assumptions are inaccurate.
Almost all law governing the United States economy is uniform state law (the Uniform Commercial Code). Most penal law is also uniform state law (Model Penal Code). There’s the Uniform Probate Code, Uniform Trust Code, Uniform Transfers to Minors Act, Uniform Enforcement of Foreign Judgments Act, Uniform Arbitration Act, Uniform Child Custody Jurisdiction and Enforcement Act, and Uniform Interstate family Support Act. In fact, the list could continue for more than 250 laws, not even counting new proposals like the uniform law for sharing health care information.2
Sure, not every single part of these uniform laws was implemented completely, 100% uniformly. But each one of these uniform model laws is analogous to dozens, if not hundreds, of specific plans—the vast majority of which have identical texts in each state’s books. This is why most of our daily lives are regulated by the same laws even though we live in fifty different states. When I buy a hot dog from a vendor, that action creates a contract because the same relevant language on contract formation was enacted in every state at more or less the same time.
No literature? The drafters of the bills above had 288 boxes of reports, memos, commentaries and the like3 .
So why is it so hard to find states answers? Because of the weirdness of fiat in general, not the states CP in particular. No politician chooses their normative stance on a law by completely ignoring political feasibility; democracy itself depends on the structural assumption that governments should adopt laws through the lens of political compromise. Debate ignores this aspect of policy desirability by fiat. The reason the literature doesn’t write an answer to the states CP within these arbitrary constraints is because a lot of affs have no answers to the states CP within these arbitrary constraints. The only reason the states CP seems more unpredictable is because it’s more politically difficult when it hasn’t already been done. Politically uncontroversial plans that should be done by uniform state fiat have mostly been accomplished already.
Can’t we just accept that bad affs are bad? When there are states answers, people write them: they say the federal government would preempt the states, or that the states wouldn’t uphold the international signal, etc. But when there aren’t states answers, it’s usually because there really aren’t any reasons the states shouldn’t do the plan—EXCEPT reasons that assume that political feasibility is relevant to policy desirability. Yet the aff was the team that (1) said political feasibility is irrelevant, and (2) chose an aff whose only answer to the states CP depends on political feasibility being relevant! There’s no evil negative conspiracy; the aff hijacked itself.
Two more points:
1. Solvency advocates are overrated. If the states have adopted uniform policies before, why not do it for the plan? I don’t need a card to advance this as a relevant argument anymore than the aff needs a card to make a logical analytical attack on a disad. The idea that debaters can’t make arguments—of any sort—unless they have a card making it for them seems paternalistic, anti-educational and anti-fun.
2. “But no logical policymaker can choose between the plan and CP” is a similarly overrated argument. No one controls both the Supreme Court and Congress, or both the White House and Congress, or both the Senate or the House, or even both Senators Reid and Baucus. That means no logical policymaker can even choose the plan, unless we define logical policymaker to mean some crazy mutant combination of everyone in the federal government. But even more importantly, the need for a logical policymaker is totally made up. I can decide whether it would be better for the states or federal government to pay teachers, much the same way I can decide whether I would prefer for Joe or Jane to pay for the restaurant tab: “Joe should pay. No, Jane should pay instead.” It doesn’t matter if I have no influence over who pays; I can still compare the consequences of each or both paying. At the end of the day, I don’t know for sure whether the states CP is net good or bad for debate. But it seems stubborn to act like most law that governs our lives on a day to day basis came about via a totally unpredictable and utopian process. What makes the States CP powerful—the idea of uniformity—is more than just in the literature; it’s already a huge chunk of United States law.
David Marks, JD, received his degree from Columbia Law School. He doublemajored in Government and Geography at Dartmouth College, and currently serves as the Director of Policy Debate at the Bronx High School of Science.
Notes
1 http://www.ndtceda.com/ pipermail/edebate/2009-April/date.html
2 http://www.nccusl.org/Update/DesktopDefault.aspx?tabindex=5&tabid=61