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Topicality
Our interpretation is that the affirmative must be responsible for defending the
desirability of topical action---winning the United States federal government
should not establish national health insurance should always be a sufficient
condition for voting negative.
something ought to occur . What you agree to do, then, when you accept the affirmative side in such a debate is to offer sufficient
and compelling reasons for an audience to perform the future action that you propose.
Vote neg for predictable limits---allowing the affirmative to pick any grounds for
the debate makes negative engagement impossible, by skirting a predictable
starting point and making our preparation and research useless. Abdicating
debates about the resolution makes all limits impossible---topic relevance isn’t
enough to ensure effective clash
Steinberg and Freeley 13, David, Lecturer in Communication studies and rhetoric, advisor to
Miami Urban Debate League, Director of Debate at U Miami, former President of CEDA, and
Austin, attorney who focuses on criminal, personal injury and civil rights law, JD, Suffolk
University, Argumentation and Debate: Critical Thinking for Reasoned Decision Making, 121-4
Debate is a means of settling differences, so there must be a controversy, a difference of opinion or a
conflict of interest before there can be a debate. If everyone is in agreement on a feet or value or policy,
there is no need or opportunity for debate; the matter can be settled by unanimous consent. Thus, for example, it would
be pointless to attempt to debate "Resolved: That two plus two equals four,” because there is simply no controversy about this statement. Controversy is
an essential prerequisite of debate. Where there is no clash of ideas, proposals, interests, or expressed positions of issues, there is no debate.
Controversy invites decisive choice between competing positions. Debate cannot produce effective decisions without clear identification of a question or
questions to be answered. For example, general argument may occur about the broad topic of illegal immigration. How many illegal immigrants live in
the United States? What is the impact of illegal immigration and immigrants on our economy? What is their impact on our communities? Do they
commit crimes? Do they take jobs from American workers? Do they pay taxes? Do they require social services? Is it a problem that some do not speak
English? Is it the responsibility of employers to discourage illegal immigration by not hiring undocumented workers? Should they have the opportunity
to gain citizenship? Does illegal immigration pose a security threat to our country? Do illegal immigrants do work that American workers are unwilling
to do? Are their rights as workers and as human beings at risk due to their status? Are they abused by employers, law enforcement, housing, and
businesses? How are their families impacted by their status? What is the moral and philosophical obligation of a nation state to maintain its borders?
Should we build a wall on the Mexican border, establish a national identification card, or enforce existing laws against employers? Should we invite
immigrants to become U.S. citizens? Surely you
can think of many more concerns to be addressed by a
conversation about the topic area of illegal immigration. Participation in this “debate” is likely to
be emotional and intense. However, it is not likely to be productive or useful without focus on a
particular question and identification of a line demarcating sides in the controversy. To be
discussed and resolved effectively, controversies are best understood when seated clearly such that all parties to the debate share an understanding
about the objective of the debate. This
enables focus on substantive and objectively identifiable issues
facilitating comparison of competing argumentation leading to effective decisions.
Vague understanding results in unfocused deliberation and poor decisions , general feelings
of tension without opportunity for resolution, frustration, and emotional distress, as evidenced by the
failure of the U.S. Congress to make substantial progress on the immigration debate. Of course,
arguments may be presented without disagreement. For example, claims are presented and supported within speeches,
editorials, and advertisements even without opposing or refutational response. Argumentation occurs in a range of settings from informal to formal,
and may not call upon an audience or judge to make a forced choice among competing claims. Informal discourse occurs as conversation or panel
discussion without demanding a decision about a dichotomous or yes/no question. However, by definition, debate requires "reasoned judgment on a
proposition. The proposition is a statement about which competing advocates will offer alternative (pro or con) argumentation calling upon their
audience or adjudicator to decide. The proposition provides focus for the discourse and guides the decision process. Even when a decision will be made
through a process of compromise, it is important to identify the beginning positions of competing advocates
to begin negotiation and movement toward a center, or consensus position. It is frustrating and usually
unproductive to attempt to make a decision when deciders are unclear as to what the decision is
about. The proposition may be implicit in some applied debates (“Vote for me!”); however, when a vote or consequential decision is called for (as in
the courtroom or in applied parliamentary debate) it is essential that the proposition be explicitly expressed (“the
defendant is guilty!”). In academic debate, the proposition provides essential guidance for the
preparation of the debaters prior to the debate, the case building and discourse presented
during the debate, and the decision to be made by the debate judge after the debate. Someone
disturbed by the problem of a growing underclass of poorly educated, socially disenfranchised youths might observe,
“Public schools are doing a terrible job! They' are overcrowded, and many teachers are poorly qualified in their subject areas.
Even the best teachers can do little more than struggle to maintain order in their classrooms." That same concerned citizen, facing a
complex range of issues, might arrive at an unhelpful decision, such as "We ought to do some-
thing about this” or, worse, “It’s too complicated a problem to deal with." Groups of concerned citizens
worried about the state of public education could join together to express their frustrations , anger, disillusionment,
and emotions regarding the schools, but without a focus for their discussions , they could easily agree
about the sorry state of education without finding points of clarity or potential
solutions. A gripe session would follow. But if a precise question is posed—such as “What can
be done to improve public education?”—then a more profitable area of discussion is opened up
simply by placing a focus on the search for a concrete solution step. One or more judgments can be phrased in the form
of debate propositions, motions for parliamentary debate, or bills for legislative assemblies, The statements "Resolved: That the federal
government should implement a program of charter schools in at-risk communities” and “Resolved; That the state of Florida should adopt a school
voucher program" more clearly identify specific ways of dealing with educational problems in a manageable form, suitable for debate. They provide
specific policies to be investigated and aid discussants in identifying points of difference. This focus contributes to better and more informed decision
making with the potential for better results. In academic debate, it provides better depth of argumentation and enhanced opportunity for reaping the
educational benefits of participation. In the next section, we will consider the challenge of framing the proposition for debate, and its role in the debate.
To have a productive debate, which facilitates effective decision making by directing and placing limits on the decision to be made, the basis for
argument should be clearly defined. If we merely talk about a topic, such as ‘"homelessness,” or “abortion,” Or “crime,” or “global warming,” we are
likely to have an interesting discussion but not to establish a profitable basis for argument. For example, the statement “Resolved: That the pen is
mightier than the sword” is debatable, yet by itself fails to provide much basis for dear argumentation. If we take this statement to mean Iliad the
written word is more effective than physical force for some purposes, we can identify a problem area: the comparative effectiveness of writing or
physical force for a specific purpose, perhaps promoting positive social change. (Note that “loose” propositions, such as the example above, may be
defined by their advocates in such a way as to facilitate a clear contrast of competing sides; through definitions and debate they “become” clearly
understood statements even though they may not begin as such. There are formats for debate that often begin with this sort of proposition. However,
in any debate, at some point, effective and meaningful discussion relies on identification of a
clearly stated or understood proposition.) Back to the example of the written word versus physical force. Although we
now have a general subject, we have not yet stated a problem. It is still too broad , too loosely worded to promote well-
organized argument. What sort of writing are we concerned with—poems, novels, government documents, website development, advertising, cyber-
warfare, disinformation, or what? What does it mean to be “mightier" in this context? What kind of physical force is being compared—fists, dueling
swords, bazookas, nuclear weapons, or what? A more specific question might be, “Would a mutual defense treaty or a visit by our fleet be more effective
in assuring Laurania of our support in a certain crisis?” The basis for argument could be phrased in a debate proposition such as “Resolved: That the
United States should enter into a mutual defense treaty with Laurania.” Negative advocates might oppose this proposition by arguing that fleet
maneuvers would be a better solution. This
is not to say that debates should completely avoid creative
interpretation of the controversy by advocates, or that good debates cannot occur over competing
interpretations of the controversy; in fact, these sorts of debates may be very engaging. The
point is that debate is best facilitated by the guidance provided by focus on a particular
point of difference , which will be outlined in the following discussion.
First is fairness:
A predictable limit is the only way to give the neg a chance to win---radical aff
choice shifts the grounds for the debate and puts the aff far ahead. Pre-
tournament negative preparation is structured around topical plans as points of
offense, which means anything other than a topical plan structurally favors the
affirmative.
Fairness also comes before substance---deciding any other argument in this debate
cannot be disentangled from our inability to prepare for it---any argument you
think they’re winning is a link, not a reason to vote for them, because it’s just as
likely that they’re winning it because we weren’t able to effectively prepare to
defeat it.
A well-defined resolution is critical to allow the neg to refute the aff in an in-depth
fashion---this process of negation produces iterative testing and improvement,
where we learn to improve our arguments based on our opponents’ arguments.
This process does not proscribe particular styles or forms of argument, but does
require a common point of disagreement around which arguments can be
organized.
Ralf Poscher 16, director of the Institute for Staatswissenschaft & Philosophy of Law, Professor
of Public Law and Legal Philosophy, “Why We Argue About the Law: An Agonistic Account of
Legal Disagreement,” in Metaphilosophy of Law, ed. Gizbert-Studnicki, Dyrda, Banas, 2/19/16,
SSRN
This also holds where we seem to be in agreement. Agreement without exposure to disagreement can be
deceptive in various ways. The first phenomenon Postema draws attention to is the group polarization effect. When a
group of like‐minded people deliberates an issue, informational and reputational cascades
produce more extreme views in the process of their deliberations.105 The polarization and biases that are
well documented for such groups 106 can be countered at least in some settings by the inclusion of dissenting
voices . In these scenarios, disagreement can be a cure for dysfunctional deliberative polarization and biases.107 A second
deliberative dysfunction mitigated by disagreement is superficial agreement, which can even be manipulatively used in the sense of a
“presumptuous ‘We’”108. Disagreement can help to police such distortions of deliberative processes by challenging superficial
agreements. Disagreements may thus signal that a deliberative process is not contaminated with dysfunctional agreements
stemming from polarization or superficiality. Protecting our discourse against such contaminations is valuable even if we do not
come to terms. Each of the opposing positions will profit from the catharsis it received “by looking
the negative in the face and tarrying with it”.
These advantages of disagreement in collective deliberations are mirrored on the individual level. Even if the probability of
reaching a consensus with our opponents is very low from the beginning, as might be the case in deeply
entrenched conflicts, entering into an exchange of arguments can still serve to test and improve
our position . We have to do the “labor of the negative” for ourselves. Even if we cannot come up with a line of argument that
coheres well with everybody else’s beliefs, attitudes and dispositions, we can still come up with a line of argument that achieves this
goal for our own personal beliefs, attitudes and dispositions. To provide ourselves with the most coherent system of our own beliefs,
attitudes and dispositions is – at least in important issues – an aspect of personal integrity – to borrow one of Dworkin’s favorite
expressions for a less aspirational idea.
In hard cases we must – in some way – lay out the argument for ourselves to figure out what we believe
to be the right answer. We might not know what we believe ourselves in questions of abortion, the death
penalty, torture, and stem cell research, until we have developed a line of argument against the background
of our subjective beliefs, attitudes and dispositions. In these cases it might be rational to discuss the issue with
someone unlikely to share some of our more fundamental convictions or who opposes the view towards which we lean. This might
even be the most helpful way of corroborating a view, because we know that our adversary is much more motivated
to find a potential flaw in our argument than someone with whom we know we are in
agreement. It might be more helpful to discuss a liberal position with Scalia than with Breyer if we want to make sure that we
have not overlooked some counter‐argument to our case.
It would be too narrow an understanding of our practice of legal disagreement and argumentation if we restricted its purpose to
persuading an adversary in the case at hand and inferred from this narrow understanding the irrationality of argumentation in hard
cases, in which we know beforehand that we will not be able to persuade. Rational argumentation is a much more complex practice
in a more complex social framework. Argumentation with an adversary can have purposes beyond
persuading him: to test one’s own convictions, to engage our opponent in inferential
commitments and to persuade third parties are only some of these; to rally our troops or express our convictions might be
others. To make our peace with Kant we could say that “there must be a hope of coming to terms” with someone though not
necessarily with our opponent, but maybe only a third party or even just ourselves and not necessarily only on the issue at hand, but
maybe through inferential commitments in a different arena.
f) The Advantage Over Non‐Argumentative Alternatives
It goes without saying that in real world legal disagreements, all of the reasons listed above usually play in concert and will typically
hold true to different degrees relative to different participants in the debate: There will be some participants for whom our hope of
coming to terms might still be justified and others for whom only some of the other reasons hold and some for whom it is a mixture
of all of the reasons in shifting degrees as our disagreements evolve. It is also apparent that, with the exception of the first reason,
the rationality of our disagreements is of a secondary nature. The
rational does not lie in the discovery of a
single right answer to the topic of debate, since in hard cases there are no single right
answers. Instead, our disagreements are instrumental to rationales which lie beyond the topic at
hand, like the exploration of our communalities or of our inferential commitments. Since these reasons are
of this secondary nature, they must stand up to alternative ways of settling irreconcilable disagreements that have other secondary
reasons in their favor – like swiftness of decision making or using fewer resources. Why does our legal practice require lengthy
arguments and discursive efforts even in appellate or supreme court cases of irreconcilable legal disagreements? The closure has to
come by some non‐argumentative mean and courts have always relied on them. For the medieval courts of the Germanic tradition it
is bequeathed that judges had to fight it out literally if they disagreed on a question of law – though the king allowed them to pick
surrogate fighters.109 It is understandable that the process of civilization has led us to non‐violent non‐ argumentative means to
determine the law. But what was wrong with District Judge Currin of Umatilla County in Oregon, who – in his late days – decided
inconclusive traffic violations by publicly flipping a coin?110 If we are counting heads at the end of our lengthy argumentative
proceedings anyway, why not decide hard cases by gut voting at the outset and spare everybody the cost of developing elaborate
arguments on questions, where there is not fact of the matter to be discovered?
One reason lies in the mixed nature of our reasons in actual legal disagreements. The different second order reasons can be held
apart analytically, but not in real life cases. The hope of coming to terms will often play a role at least for some time relative to some
participants in the debate. A second reason is that the objectives listed above could not be achieved by a
non‐argumentative procedure. Flipping a coin, throwing dice or taking a gut vote would not help us to
explore our communalities or our inferential commitments nor help to scrutinize the positions
in play. A third reason is the overall rational aspiration of the law that Dworkin relates to in his integrity account111. In a
justificatory sense112 the law aspires to give a coherent account of itself – even if it is not the only right one – required by equal
respect under conditions of normative disagreement.113 Combining legal argumentation with the non‐argumentative decision‐
making procedure of counting reasoned opinions serves the coherence aspiration of the law in at least two ways: First, the labor
of the negative reduces the chances that constructions of the law that have major flaws or
inconsistencies built into the arguments supporting them will prevail. Second, since every position must be
a reasoned one within the given framework of the law, it must be one that somehow fits into the overall structure of the law along
coherent lines. It thus protects against incoherent “checkerboard” treatments114 of hard cases. It is the combination of reasoned
disagreement and the non‐rational decision‐making mechanism of counting reasoned opinions that provides for both in hard cases:
a decision and one – of multiple possible – coherent constructions of the law. Pure non‐rational procedures – like flipping a coin –
would only provide for the decision part. Pure
argumentative procedures – which are not geared towards a
decision procedure – would undercut the incentive structure of our agonistic
disagreements.115 In the face of unresolvable disagreements endless debates would seem an idle enterprise. That the
debates are about winning or losing helps to keep the participants engaged. That the decision
depends on counting reasoned opinions guarantees that the engagement focuses on rational argumentation. No plain non‐
argumentative procedure would achieve this result. If the judges were to flip a coin at the end of the trial in hard cases, there would
be little incentive to engage in an exchange of arguments. It is specifically the count of reasoned opinions which provides for rational
scrutiny in our legal disagreements and thus contributes to the rationales discussed above.
2. The Semantics of Agonistic Disagreements
The agonistic account does not presuppose a fact of the matter, it is not accompanied by an
ontological commitment, and the question of how the fact of the matter could be known to
us is not even raised. Thus the agonistic account of legal disagreement is not confronted with the
metaphysical or epistemological questions that plague one‐right‐answer theories in particular. However, it must still
come up with a semantics that explains in what sense we disagree about the same issue and are not just talking at cross purposes.
In a series of articles David Plunkett and Tim Sundell have reconstructed legal disagreements in semantic terms as metalinguistic
negotiations on the usage of a term that at the center of a hard case like “cruel and unusual punishment” in a death‐penalty case.116
Even though the different sides in the debate define the term differently, they are not talking past each other, since they are engaged
in a metalinguistic negotiation on the use of the same term. The metalinguistic negotiation on the use of the term serves as a
semantic anchor for a disagreement on the substantive issues connected with the term because of its functional role in the law. The
“cruel and unusual punishment”‐clause thus serves to argue about the permissibility of the death penalty. This account, however
only provides a very superficial semantic commonality. But the commonality between the participants of a legal disagreement go
deeper than a discussion whether the term “bank” should in future only to be used for financial institutions, which fulfills every
criteria for semantic negotiations that Plunkett and Sundell propose. Unlike in mere semantic negotiations, like the on the
disambiguation of the term “bank”, there is also some kind of identity of the substantive issues at
stake in legal disagreements.
A promising route to capture this aspect of legal disagreements might be offered by recent semantic approaches that try to
accommodate the externalist challenges of realist semantics,117 which inspire one‐right‐answer theorists like Moore or David Brink.
Neo‐ descriptivist and two‐valued semantics provide for the theoretical or interpretive element of realist semantics without having to
commit to the ontological positions of traditional externalism. In a sense they offer externalist semantics with no ontological strings
attached.
The less controversial aspect of the externalist picture of meaning developed in neo‐ descriptivist and two‐valued semantics can be
found in the deferential structure that our meaning‐providing intentions often encompass.118 In the case of natural kinds, speakers
defer to the expertise of chemists when they employ natural kind terms like gold or water. If a speaker orders someone to buy $
10,000 worth of gold as a safe investment, he might not know the exact atomic structure of the chemical element 79. In cases of
doubt, though, he would insist that he meant to buy only stuff that chemical experts – or the markets for that matter – qualify as
gold. The deferential element in the speaker’s intentions provides for the specific externalist element of the semantics.
In the case of the law, the meaning‐providing intentions connected to the provisions of the law can be understood to defer in a
similar manner to the best overall theory or interpretation of the legal materials. Against the background of such a semantic
framework the conceptual unity of a linguistic practice is not ratified by the existence of a single
best answer, but by the unity of the interpretive effort that extends to legal materials and legal
practices that have sufficient overlap119 – be it only in a historical perspective120. The fulcrum of
disagreement that Dworkin sees in the existence of a single right answer121 does not lie in its
existence, but in the communality of the effort – if only on the basis of an overlapping
common ground of legal materials, accepted practices, experiences and dispositions. As two
athletes are engaged in the same contest when they follow the same rules, share the same concept of
winning and losing and act in the same context, but follow very different styles of e.g. wrestling, boxing, swimming etc. They are in
the same contest, even if there is no single best style in which to wrestle, box or swim. Each, however, is
engaged in developing the best style to win against their opponent, just as two lawyers try to develop the
best argument to convince a bench of judges.122 Within such a semantic framework even people with radically
opposing views about the application of an expression can still share a concept , in that they
are engaged in the same process of theorizing over roughly the same legal materials and practices.
Semantic frameworks along these lines allow for adamant disagreements without abandoning the idea
that people are talking about the same concept. An agonistic account of legal disagreement can build on such a
semantic framework, which can explain in what sense lawyers, judges and scholars engaged in agonistic disagreements are not
talking past each other. They are engaged in developing the best interpretation of roughly the same legal materials, albeit against the
background of diverging beliefs, attitudes and dispositions that lead them to divergent conclusions in hard cases. Despite the
divergent conclusions, semantic
unity is provided by the largely overlapping legal materials that
form the basis for their disagreement. Such a semantic collapses only when we lack a
sufficient overlap in the materials. To use an example of Michael Moore’s: If we wanted to debate whether a certain
work of art was “just”, we share neither paradigms nor a tradition of applying the concept of justice to art such as to engage in an
intelligible controversy.
They can’t get offense---we don’t have the power to impose a norm, only to
persuade you that their arguments should be rejected---every debate requires a
winner and loser, so voting negative doesn’t reject them from debate, it just says
they should make a better argument next time
Amanda Anderson 6, Andrew W. Mellon Professor of Humanities and English at Brown
University, Spring 2006, “Reply to My Critic(s),” Criticism, Vol. 48, No. 2, p. 281-290
Lets first examine the claim that my book is "unwittingly" inviting a resurrection of the "Enlightenment-equals-totalitarianism
position." How, one wonders, could a book promoting argument and debate, and promoting reason-
giving practices as a kind of common ground that should prevail over assertions of cultural
authenticity, somehow come to be seen as a dangerous resurgence of bad Enlightenment?
Robbins tells us why: I want "argument on my own terms"-that is, I want to impose reason on
people , which is a form of power and oppression. But what can this possibly mean? Arguments
stand or fall based on whether they are successful and persuasive , even an argument in favor of
argument . It simply is not the case that an argument in favor of the importance of reasoned
debate to liberal democracy is tantamount to oppressive power . To assume so is to assume, in the manner of
Theodor Adorno and Max Horkheimer, that reason is itself violent, inherently, and that it will always mask power and enforce
exclusions. But to assume this is to assume the very view of Enlightenment reason that Robbins claims we are "thankfully" well rid
of. (I leave to the side the idea that any individual can proclaim that a debate is over, thankfully or not.) But perhaps Robbins
will say, "I am not imagining that your argument is directly oppressive, but that what you argue
for would be, if it were enforced ." Yet my book doesn't imagine or suggest it is enforceable; I simply
argue in favor of, I promote , an ethos of argument within a liberal democratic and proceduralist
framework. As much as Robbins would like to think so, neither I nor the books I write can be cast as an arm
of the police .
Robbins wants to imagine a far more direct line of influence from criticism to political reality,
however, and this is why it can be such a bad thing to suggest norms of argument. Watch as the gloves
come off:
Faced with the prospect of submitting to her version of argument roughly, Habermass version-and of being thus authorized to
disagree only about other, smaller things, some may feel that there will have been an end to argument, or an end to the arguments
they find most interesting. With current events in mind, I would be surprised if there were no recourse to the metaphor of a regular
army facing a guerilla insurrection, hinting that Anderson wants to force her opponents to dress in uniform, reside in well-
demarcated camps and capitals that can be bombed, fight by the rules of states (whether the states themselves abide by these rules
or not), and so on-in short, that she wants to get the battle onto a terrain where her side will be assured of having the upper hand.
Lets leave to the side the fact that this is a disowned hypothetical criticism. (As in, "Well, okay, yes, those are my gloves, but those
are somebody elses hands they will have come off of.") Because far more interesting, actually, is the sudden elevation of
stakes. It is a symptom of the sorry state of affairs in our profession that it plays out repeatedly
this tragicomic tendency to give a grandiose political meaning to every object it analyzes or
confronts. We have evidence of how desperate the situation is when we see it in a critic as thoughtful as Bruce Robbins, where it
emerges as the need to allegorize a point about an argument in such a way that it gets cast as the equivalent of war
atrocities. It is especially ironic in light of the fact that to the extent that I do give examples of
the importance of liberal democratic proceduralism, I invoke the disregard of the protocols of
international adjudication in the days leading up to the invasion of Iraq; I also speak about concerns with
voting transparency. It is hard for me to see how my argument about proceduralism can be associated
with the policies of the Bush administration when that administration has exhibited a flagrant
disregard of democratic procedure and the rule of law. I happen to think that a renewed focus on
proceduralism is a timely venture, which is why I spend so much time discussing it in my final chapter. But I hasten to
add that I am not interested in imagining that proceduralism is the sole political response to the needs
of cultural criticism in our time: my goal in the book is to argue for a liberal democratic culture of
argument , and to suggest ways in which argument is not served by trumping appeals to identity
and charismatic authority. I fully admit that my examples are less political events than academic debates; for those uninterested in
the shape of intellectual arguments, and eager for more direct and sustained discussion of contemporary politics, the approach will
disappoint. Moreover, there will always be a tendency for a proceduralist to under-specify substance, and that is partly a principled
decision, since the point is that agreements, compromises, and policies get worked out through the communicative and political
process. My book is mainly concentrated on evaluating forms of arguments and appeals to ethos, both those that count as a form of
trump card or distortion, and those that flesh out an understanding of argument as a universalist practice. There is an intermittent
appeal to larger concerns in the political democratic culture, and that is because I see connections between the ideal of argument and
the ideal of deliberative democracy. But there is clearly, and indeed necessarily, significant room for further elaboration here.
There is a way to make Robbins’s point more narrowly which would run something like this:
Anderson has a very restricted notion of how argument should play out, or appear, within academic
culture, given the heavy emphasis on logical consistency and normative coherence and
explicitness. This conception of argument is too narrow (and hence authoritarian). To this I
would reply simply that logical consistency and normative coherence and explicitness do not
exhaust the possible forms, modes, and strategies of argumentation . There is a distinction to be
made between the identification of moves that stultify or disarm argument , and an insistence on
some sort of single manner of reasoned argument . The former I am entirely committed to; the
latter not at all , despite the fact that I obviously favor a certain style of argument, and even despite the
fact that I am philosophically committed to the claims of the theory of communicative reason. I do address the issue of diverse forms
and modes of argument in the first and last chapters of the book (as I discuss above), but it seems that a more direct reflection on the
books own mode of argumentation might have provided the occasion for a fuller treatment of the issues that trouble Robbins.
Different genres within academe have different conventions, of course, and we can and do make
decisions all the time about what rises to the level of cogency within specific academic venues,
and what doesn't. Some of those judgments have to do with protocols of argument. The book review,
for example, is judged according to whether the reviewer responsibly represents the scholarship under
discussion, seems to have a good grasp of the body of scholarship it belongs to, and convincingly and fairly points out
strengths and weaknesses. The book forum is a bit looser-one expects responsible representation of the scholarship under
discussion, but it can be more selectively focused on a key set of issues. And one expects a bit of provocation, in order to make the
exchange readable and dramatic. But of course in a forum exchange there is an implicit norm of argument, a
tendency to judge whether a particular participant is making a strong or a weak case in light of
the competing claims at play. Much of our time in the profession is taken with judging the quality of
all manner of academic performance, and much of it has to do with norms of argument, however
much Robbins may worry about their potentially coercive nature.
From time to time I myself have wondered whether my book is too influenced by the modes of academe. But when I read a piece of
writing like the one that Elspeth Probyn produced, I find myself feeling a renewed commitment to the evaluative
norms of responsible scholarship, and to the idea that clearly agreed-upon genres and
protocols of fair scholarship benefit from explicit affirmation at times. Probyn's piece does not
conform at all to the conventions of the forum response. She may herself be quite delighted that it does not. Robbins may find
himself delighted that she represents a viewpoint that does not agree on my (totalitarian)
fundamentals of forum responses. But I would simply say that here we do not have fair or reasoned
argument, which is one of the enabling procedures of forum exchanges. Indeed, I hear a
different genre altogether: the venting phone call to a friend or intimate. In this genre, which I think we are all
familiar with, one is not expected or required to give reasons or evidence, as one is in academic argument. Here's how the phone call
might go: "Ugh. I have to write a response to this awful book. I agreed to this because I thought the book had an interesting title; it's
called The Way We Argue Now. But I can't get through it; it isn't at all what I expected. I find myself alternately bored and irritated.
It's so from the center—totally American parochial, and I just hate the style: polemical in a slam-bam-thank-you-ma'am way—really
quite mean-spirited. She's so arrogant. And you wouldn't believe the so-called critique of Foucault. I don't know, I think I'm just sick
of abstract theory—I mean, aren't we past this? It's so stultifying. I wish there were some way to get out of the commitment. I don't
know how I'm ever going to get to it anyway, with all my journalism deadlines." The friend: "That sounds awful. But just use the
occasion to write about something else, something you think is important. Write about yourself. Direct attention to a book that you
do like. Whatever you do, don't spend too much time on it. And definitely call her out on the American centrism."
1NC
The 1AC represents a performance of powerlessness---contemporary left politics
has become defined by performances of moral virtue that protest existing
structures but provide no mechanism for building political programs to change the
allocation of material power. Voting aff endorses the idea that the sole criteria for
the success of a political act is the individual strength by which it expressed its
values, rather than how well it created tangible means by which power can be
retaken---that’s fatal for any concrete political struggle.
Peter Dorman 16, faculty member in political economy at the Evergreen State College, 5/16/16,
“The Climate Movement Needs to Get Radical, but What Does that Mean?,”
http://nonsite.org/editorial/the-climate-movement-needs-to-get-radical-but-what-does-that-
mean
2. The cultural turn has gone too far. Of course, the deciphering of discourses has much to
recommend it; all social action takes place in a context of meanings—shared, contested or both. It’s
remarkable, however, that a high profile book that claims to be about radical social change, and
which has won widespread approval across the leftward half of the political spectrum, could sidestep any sustained
consideration of wealth and power altogether.
Why have governments failed to act to counter the threat of catastrophic climate change? Is it solely because of faulty thinking, or
there exists a gross imbalance of power in every modern capitalist country, such that
could it be that
business interests are firmly in control? What institutions wield this power and what
methods do they use? Crucially, how can those who struggle for democratic collective action
contest this power? What types of organizations can be effective? What structural changes
should be prioritized to rebalance power and enable rational solutions to overriding problems like
climate change? I wouldn’t fault Klein for failing to provide answers—who has? What is astonishing, however, is
that the questions are never posed , not even in passing. What does it mean to espouse radical
politics and never take up the issue of power?
But a second absence is even more telling. At various points Klein refers to the need for a price to be placed on carbon; it clearly is
not her main interest, since she devotes no space at all to the political struggle required to achieve this, but she recognizes it is an
important part of the story. What’s missing, however, is any serious consideration of how much money this will be, out of whose
pockets it will be extracted and to whose pockets it will be transferred. I cannot emphasize how extraordinary it is for a book to be
ostensibly about capitalism but pay so little attention to money.
The reality is that carbon revenues will be immense. If even approximately sufficient global action is undertaken, the sums will be in
the trillions of dollars. And despite Klein’s moral calculus, the actual, real-life operation of carbon pricing will guarantee that it is the
public at large—everyone who purchases a good or service with a carbon energy component—that will pay it. This is visible in
gasoline taxes today, which consumers pay at the pump; a carbon price, whether it is engineered by a tax or a cap on permits, will be
the same sort of tax writ very, very large. Such a tax will be regressive, and lower income people will effectively be taxed at a higher
rate.
This is potentially catastrophic on multiple levels. It is intolerable from a social justice perspective in an age of rampaging inequality.
It would also be impossible to disguise from voters, making it difficult to impossible to get majority support for a stiff carbon price.
Klein blithely recommends using this new source of revenue to finance green investments, but she doesn’t inquire whose money is
being spent, nor does she consider that, in practice, governments will simply shift a lot of the investments they would have made
anyway over to this new revenue spigot, freeing up more money for their other pet projects. The one word that sums up Klein’s
attitude toward this trillion-dollar question is uninterested.
Of course, there are ways to turn around the economics of carbon pricing. The money can be returned to the public on an equal per
capita basis, which would have the effect of turning an otherwise regressive transfer system into a progressive, inequality-reducing
one. Given the amount of money at stake, this will require a massive political mobilization, but it is worth fighting for. To repeat,
however, the purpose of bringing up this issue is not to proselytize for a different system of carbon pricing, but simply to point out
the glaring incongruity of an ostensibly radical, anti-capitalist book (a rather long one at that) which ignores the single most
important principle for how things work in a capitalist society: follow the money!
3. Theleft has adapted to powerlessness . This Changes Everything practically exudes triumphalism, especially
in the final hundred pages or so. Vibrant, righteous movements are springing up everywhere, we are told,
and through their proliferation they will change the world.
Except, of course, they won’t . They do not have the means to change the world to
something different, only to obstruct the bits of the existing world they can get their bodies in
front of. That is important to do, and it can play a crucial role in a larger movement to contest power—if that movement can come
into existence. If
no larger movement arises, the local fires will be put out one by one . A radical
political vision cannot abjure politics, and it is politics which is missing from Klein.
Here it is necessary to step back and consider the historical context. In the English-speaking world, and to a lesser extent in other
wealthy, capitalist countries, the past several decades have seen profound defeat and demobilization on
the left. In no country is there a mass political party with a program to transform the existing
political economic order into something else. Unions, where they have any clout at all, have been fighting a
rearguard struggle to retain as many of the gains of former times as they can. Of course, there have also been
substantial victories for racial, gender and other social equalities and a general drift toward less
authoritarian cultural norms. But the core institutions of wealth and power are more firmly entrenched
now than they have been in generations, and the left as a political force is hardly noticeable.
How have those who still identify with the left coped with this epoch of powerlessness? There are
many answers, but all of them express some form of disengagement . For instance, redefining
politics as the performance of moral virtue rather than the contest for
power can provide consolation when political avenues appear to be blocked. Activities of
this sort are evaluated according to how expressive they are — how good they
make us feel —rather than any objective criterion of effectiveness in achieving concrete goals
or altering the balance of political forces. This is how I would interpret Blockadia, for instance, in the absence of a
broader movement that includes both direct action and political contestation: Klein can devote page after page to how righteous
these activists are without any attention to whether they have had or have any prospect of having an impact on carbon emissions.
Their very activism constitutes its own victory, which is convenient if the more conventional sort of victory is believed to be out of
reach. (It is bad form to even bring this up: why, some will ask, am I dwelling on the negative with so much positive energy to
celebrate?)
Another response is to collapse social change into personal choices over lifestyle and
philosophy . If you believe that the threat of climate change can be defeated by a shift to more modest
consumption habits and rejection of the false intellectual gods of globalization and economic growth,
one individual at a time, then each moment of conversion constitutes its own little
victory . The reader of Klein’s book, feeling a sense of unity with that consciousness and its program to downshift consumption,
can experience this victory first hand. This is very gratifying, and it reinforces the message that powerlessness in
conventional terms is irrelevant, since the change we are part of is at a deeper level than
governments and their laws or corporations and their assets. After all, what can be more subversive than
thinking new thoughts?
One of Klein’s favorite adaptations is the conflation of wishes and operative political
programs . Again and again she holds up statements of intent —protect Mother Earth, treat all people
equally, respect all cultures, live simple, natural, local lives— as if they were proposals whose
implementation would have these outcomes . It’s all ends and no means . This is a
double convenience: first it eliminates the need to be factual and analytical about programs, since
announcing the goal is sufficient unto itself, and second, it evades the disconcerting
problem of how to deal with the daunting political challenge of getting such programs
(if they even exist) enacted and enforced . I believe the treatment of goals as if they were programs is
the underlying reason for the sloppiness of this book on matters of economics and law. Klein can say we should finance
a large green investment program by taxing fossil fuel profits, or we should simultaneously shrink the economy and increase the
number of jobs, because in the end it doesn’t matter whether these or other recommendations could
actually prove functional in the real world. The truth lies in the rightness of the demand, not the
means of fulfilling it. But this too is an adaptation to powerlessness.
To close, I wish to emphasize that this critique is ultimately not directed at a single individual. On the contrary,
even if we consider only this one book, it is clear that its writing was a team effort; the long acknowledgments section identifies both
paid assistants and an army of internal reviewers. But what I find diagnostic is the warm reception it received from virtually every
media outlet on the English-speaking left. This suggests that Klein is moving with the political tide and not against it, and that the
problems that seemed obvious to me were either invisible to her reviewers or regarded as too insignificant to bring up. The view
that capitalism is a style of thinking, progress is a myth, and political contestation is
irrelevant to “true” social change belongs not just to this one book but to all the commentators who
found nothing to criticize. That’s the real problem .
Their arg assumes aggression is intractable --- that’s wrong – we’re not overly
optimistic, but rather think it’s important to hold individuals accountable
Lear 2000 Jonathan Lear, Philosophy Professor at the University of Chicago, 2000 Happiness, Death, and the Remainder of
Life, Page 131-132
By 1920 Freud is ready to break up what he has come to see as a fantasized unity of mental functioning. The mind can no longer be
understood in terms of the pleasure principle, but instead of living with the gap, he posits a “beyond.” It is in this way that Freud
takes himself to be explaining aggression. Aggression is now interpreted as the death drive diverted
outward. It is precisely this move which locks us into an inescapably negative teleogy. Let us
just assume (for the sake of argument, though I think it true) that humans are aggressive animals, and that dealing with human
aggression is a serious psychological and social problem. The question remains: how might one deal with it? But if, as
Freud does, one interprets aggression as the most obvious manifestation of one of the two
primordial forces in the universe, the answer would seem to be: there is no successful way. My first inclination
is to say that this leads to a pessimistic view of the human condition; but this isn’t really the issue. My second
inclination is to say it leads to a limited view of the human condition; but even this doesn’t get to the heart of the
problem. The point here is not to endorse an ontic optimism – that if we didn’t adopt this view, we
could shape life in nonaggressive ways – but to confront an ontological insight: that Freud’s
interpretation is an instance of bad faith. The metaphysical basicness of the death drive implies
a kind of metaphysical intractability to the phenomenon of human aggression. As a matter of empirical
fact, humans may be aggressive animals – and the fact of human aggression may be difficult to deal with. It may be experienced as
intractable.
But to raise this purported intractability to a metaphysical principle is to obliterate the
question of responsibility. And it is to cover over – by precluding – what might turn out to be a
significant empirical possibilities.
There’s no duality between future and past---you can endorse action that
understands the past and the status quo but also understands the responsibility
towards the future
Berber Bevernage 15 , Assistant Professor, History, University of Ghent, October 2015, The Past is
Evil/Evil is Past: On Retrospective Politics, Philosophy of History, and Temporal Manichaeism, History
and Theory Volume 54, Issue 3, pages 333–352
Torpey is certainly not the only intellectual expressing these worries. According to historian
Pieter Lagrou, “our contemporary societies, for lack of future projects, shrink into a ‘passeist’
culture.”12 In European public discourse, he argues, the focus on crimes of the distant past has
become so strong that it tends to marginalize claims of victims of contemporary crimes and
human rights violations. Therefore, Lagrou argues, “a commemorative discourse of victimhood
is very much the opposite of a constructive and dynamic engagement with the present, but
rather a paralyzing regression of democratic debate.”13 Lagrou's argument closely resembles
many others that turn against retrospective politics and “victim culture” such as Ian Buruma's
warning about the peril of minorities defining themselves exclusively as historical victims and
engaging in an “Olympics of suffering”14 and Charles Maier's claims about a “surfeit of
memory.”15
These warnings about the perils of a retrospective politics outweighing or even banning politics
directed at contemporary injustices or striving for a more just future should be taken seriously.
Yet the alternative of an exclusively present- or future-oriented politics disregarding all historical injustice is not desirable either.
Contemporary injustice often manifests itself in the form of structural repetition or continuity of
injustices with a long history. Moreover, totalitarian versions of progressivist politics have frequently abused the idea of a
struggle for a more just future in order to justify past and present suffering. It could even be argued that the rise of dominant
restrospective politics has been initiated partly on the basis of disillusionment with the exculpatory mechanisms of progressivist
ideology.16 Some indeed claim that much of present-day retrospective politics and the “setting straight” of historical injustices
would be unnecessary had totalitarian progressivist politics focused less exclusively on the bright future and shown more sensitivity
to the contemporary suffering of its day. This claim certainly makes sense if one thinks of extreme examples such as Stalin's five-year
plans and Mao's Great Leap Forward. Yet, as Matthias Frisch rightly argues, the risk of the justification of past and present suffering
lurks around the corner wherever progressive logics of history or promises of bright and just futures are not counterbalanced by
reflective forms of remembrance.17¶ Therefore, we should resist dualist thinking that forces us to choose
between restitution for historical injustices and struggle for justice in the present or the future.
Rather, we should look for types of retrospective politics that do not oppose but complement or
reinforce the emancipatory and utopian elements in present- and future-directed politics—and
the other way around: present- and future-oriented politics that do not forget about
historical injustices.¶ In this paper I want to contribute to this goal by focusing on the issue of retrospective politics and
by analyzing how one can differentiate emancipatory or even utopian types of retrospective politics from retrospective politics that I
classify here as anti-utopian. I argue that the currently dominant strands of retrospective politics indeed do
tend to be anti-utopian and have a very limited emancipatory potential. Moreover, I claim that currently
dominant retrospective politics do not radically break with several of the exculpatory intellectual mechanisms that are typically
associated with progressivist politics but actually modify and sometimes even radicalize them. In that restricted sense, and only in
this sense, it can be argued that currently dominant retrospective politics do not represent a
fundamentally new way of dealing with historical evil and the ethics of responsibility.
Political engagement isn’t just queer assimilation – it radically changes the terms
of the political itself. The social order is NOT inevitably exclusive to queers –
working through the political process can and does produce not just a better but a
different social order for queers.
John Brenkman 2, Distinguished Professor of English and Comparative Literature at the
CUNY Graduate Center and Baruch College, 2002, Narrative, Vol. 10, No. 2, p. 188-189
Innovation is a crucial concept for understanding the gay and lesbian movement, which emerged
from within civil society as citizens who were stigmatized and often criminalized for their sexual
lives created new forms of association, transformed their own lifeworld, and organized a political
offensive on behalf of political and social reforms. There was an innovation of rights and freedoms,
and what I have called innovations in sociality. Contrary to the liberal interpretation of liberal
rights and freedoms, I do not think that gays and lesbians have merely sought their place at the
table. Their struggle has radically altered the scope and meaning of the liberal rights and freedoms
they sought, first and foremost by making them include sexuality, sexual practices, and the
shape of household and family. Where the movement has succeeded in changing the laws of the
state, it has also opened up new possibilities within civil society. To take an obvious example,
wherever it becomes unlawful to deny housing to individuals because they are gay, there is set in
motion a transformation of the everyday life of neighborhoods, including the lives of heterosexuals
and their children. [End Page 188] Within civil society, this is a work of enlightenment, however
uneven and fraught and frequently dangerous. It is not a reaffirmation of the symbolic and
structural underpinnings of homophobia; on the contrary, it is a challenge to homophobia and a
volatilizing of social relations within the nonpolitical realm.
Legal control over subjectivity is inevitable but so are strategic demands on the
law—radical queer anti-statist politics are possible within the law
Peter Campbell 13, faculty member in the Program in Composition, Literacy, Pedagogy, and
Rhetoric at the University of Pittsburgh, JUDICIAL RHETORIC AND RADICAL POLITICS:
SEXUALITY, RACE, AND THE FOURTEENTH AMENDMENT,
https://www.ideals.illinois.edu/bitstream/handle/2142/45352/Peter_Campbell.pdf?sequence=
1
But—following Matsuda—I think that Butler seems to miss an important point. Given the material force of the
fantasy of legal sovereignty in the margins, “‘at the point[s]’” where power is “‘completely
invested in its real and effective practices,’” 31 I argue that resistance to the idea of legal
sovereignty must not preclude what Cathy Cohen might call a “practical”32 understanding of the presently
inevitable reality of the sovereign rhetorical operations of the law. The political
project of resistance to the performative sovereignty of judicial rhetoric in the United States
must not deny (as Matsuda and Richard Delgado said in 1987 to the “crits” of Critical Legal Studies) the need to
construct strategically informed and tactically sound responses to those “formal”
structures of law that already act as and with the material power of sovereign
authority ––authority over the constraints that legal forms of subjectivity already
impose on personhood.33 As Butler herself acknowledges in 2004,34 the absolute critique of legal
sovereign performatives does not adequately consider how the effects of the fantasy of
legal sovereignty are most often (and most often most terribly) felt by “those who
have” actually “seen and felt the falsity of the liberal promise”35 of the U.S. judiciary as a shield
against domination.¶ My experience of the law has occurred through my own participation in and observation of judicial sovereignty––both
from a majoritarian perspective. I teach argumentation in a prison, a setting that emphasizes the paradoxical and simultaneous vitality and uselessness
of rhetorical and argumentative interaction with those persons charged with enforcing the reasoned justification of judicial decision through coercive
violence. In our present democratic state of laws, the production of legitimacy for judicial sovereignty through argument, and the production of
legitimacy through force, work together in explicit and mutually supportive fashion. More happily, I was recently invited by two friends to officiate their
wedding, at a ceremony in Rehoboth, Massachusetts. I agreed, and asked whether I should purchase an ordination online, so that I could legally
perform the ceremony. There was no need— Massachusetts is unusual among U.S. states in maintaining a category of officiant called a “solemnizer.”
Any person, with little qualification, can apply to be a solemnizer. The dichotomy between the “republican style”36 of the application process, and the
quotidian ease with which I was granted the certificate made me think about the “sovereign performative”37 that I would stage in Rehoboth. The “I do”
statement in a marriage ceremony is one of Austin’s core examples38 of an “illocutionary” performative, an utterance which “has a certain force” in the
“saying” of it,39 but this example itself performs an interesting elision of the role of a state representative in a civil marriage ceremony. In Rehoboth,
my friends would not be married until I pronounced them so publicly. That pronouncement would of course require other performative statements (“I
do”) from my friends as a pre-requisite to its validity.40 But on the date and in the location specified by the solemnization certificate, I had, as a feature
of the designation “solemnizer” bestowed on me by the Commonwealth of Massachusetts, absolute power over whether they would be married or not—
on that date and in that location. In the narrow context of the two possible realities of my friends becoming married or not on that day and in that
location, my role was to exercise the sovereign performative power of the Commonwealth as its judge-like representative. ¶ But in that exercise, I would
also be performing two arguments: one for the sovereign legitimacy (and successful performativity)41 of my utterances and the illegitimacy of any
others; and one for the value and significance of “married” as a position of legal subjectivity in Massachusetts and the United States. I bring up this
example to emphasize the specifically illocutionary power of the judicial rhetorical constitution of subjects before law. Austin describes illocution as “‘in
saying x I was doing y’ or ‘I did y,’”42 but judicial illocution might more accurately be described as “in saying x I did x.” When I said that these people
were married, I made them married. The statement and the doing were one and the same.
If a judge sentences a person to death,
she does not depress the needle; the pronouncement of sentence is an illocutionary act in the
first sense (x and y). But in pronouncing the sentence, the judge does redefine the convicted (of
a death-eligible crime) person’s subjectivity before law from “convicted” and/or “criminal” and/or “felon”
and/or “murderer” and/or “traitor” to, more primarily, “condemned.” This is an illocutionary act in the second sense (x and
x).¶ If a judge rules that it is unconstitutional to require a trans* person’s passport to list their
gender contrary to that person’s “self-understanding,”43 this is a “perlocutionary” act (where the
utterance effectively causes something to happen)44 in that the ruling enables the person who is
trans* to change the official designation of their gender. But it is also an x and x illocutionary act in the context
of the petitioner’s subjectivity before law—the utterance of the ruling has changed their self-
understanding of their own identity from “not real” to “real” in the eyes of the law. This would be even
more evident if the ruling did not merely realize the truth of a trans* person’s self-understanding as male or female, but went so far as to create, in the
moment of the utterance itself, a legally recognized trans* identity category. ¶ All of these examples are performatives enabled by the fantasy of the
sovereign location of power in law. When asked, I considered (given my own views on marriage as an institution) declining to perform the ceremony—
even in Massachusetts, whose marriage laws mean that the sexual orientation identity of the two people I married cannot be discerned from this story. I
understood that my performative and the discourse of the ceremony surrounding it would contribute in a small way to the sovereign power of the state
over human relational and sexual legitimacy. But this refusal would not have made the present sovereignty of the state over the determination of legally
Petitions to the law are inevitable; they will be
legitimate and illegitimate forms of relation any less inevitable.¶
made, often by people with no other recourse to save their life, or to preserve their
life's basic quality. As Butler demonstrates, any such petition will have performative effect. I do not
offer this brief critique of Butler’s theory of “sovereign performatives” to dispute the facticity of her arguments. I begin this project with the stipulation
that politics of resistance to the “sovereign performative” must include actions of resistance to
statist law itself—that is, the specific articulation of opposition, within progressive social
movements, to strategies that privilege appeals for help from judges . But these politics
must also acknowledge that those who undertake such strategies do not always do so without
knowledge of the sovereign performative function of their actions—“recourse to the law” does
not always or even usually “imagine” the law “as neutral.”45 These radical politics must also be undertaken with
knowledge of the effects of the petitions to law-as-sovereign that will inevitably be made —and particularly
with knowledge of the effects that flow from the (also performative and also inevitable) judicial rhetorical
responses to these inevitable petitions. ¶ Austin teaches us that it is in the nature of performatives to not always work, and to
produce effects in excess of their explicit ones. The judicial rhetorical constitution of subject and abject forms of being-in-relation to law operates
through legal performatives that contain the possibilities for their own future “infelicity.”46 My project is an attempt to explore some future
possibilities for the counter-sovereign articulation of subjectivity before U.S. law—possibilities that are both foreclosed and engendered in the
argumentative justifications for judicial decisions. Specifically, I examine some key Supreme Court cases relating to sexual practice, race in education
policy, and marriage. I perform a legal rhetorical criticism of critic-constructed “meta”-texts47 that form argumentative frameworks through which
judges apply various legal doctrines to questions of sexual, racial, educational, and relational freedom. ¶ Following Perelman, I understand judicial
argument to be the explanatory justifications offered for judges’ authoritative interpretive application of legal doctrine to problems of public concern––
problems that have been framed as legal, either by jurists themselves, petitioners to the courts, or both. In
the United States, judicial
arguments about constitutional interpretation have the privileged function of delimiting the
grounds on which the authority of all other statist legal argument is based. Given the
overwhelming salience of constitutional legal discourse in U.S. everyday life ,48 this
means that the judicial rhetoric of constitutional law plays a significant role in delimiting the
grounds on which a person can base their claim—literally49–– to existence and legitimacy in
the U.S. polity. 50 Jurists’ arguments from and about the Due Process and Equal Protection
Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution in particular perform a final arbitration
function in the ongoing and generally contentious process of the statist determination of what
forms of racialized queer identity and relation will be eligible for recognized and
legitimated status in U.S. public life. ¶ In this dissertation, I focus on the Fourteenth Amendment—due process and equal
protection—rhetoric of U.S. Supreme Court Justice Anthony M. Kennedy. I read this rhetoric in terms of “genealogies of precedent,” or the
argumentative possibilities for queer subjectivity before law that are brought into being by the
doctrinal frameworks Kennedy and other judicial rhetors use in a given opinion. Each chapter offers a case study of
opinions in several Federal and Supreme Court cases that are foundational to Kennedy’s development of a new constitutional jurisprudence of
substantive due process and equality. I demonstrate that this jurisprudence is both productive of and violent to possibilities for practical and strategic
sexually “progressive”51 interactions with U.S. constitutional law. These
interactions, despite their practical or
strategic formulation, can be undertaken and/or framed in terms of anti-statist and institutional
radical queer political goals . Possibilities for the success of such radical framing of practical interaction are partially delimited
in the argumentative choice of U.S. judicial opinions.
2NC
Trump is an argument for us---the election demonstrates the necessity of leftist
academics and intellectuals actively building the skills of responding to arguments
of well-prepared opponents that don’t share our political views---only our
framework creates political actors who can change the minds of Trump voters---
their approach to debate worsens and locks in societal cleavages
Charles C. Camosy 16, Associate Professor of Theology at Fordham University, 11/9/16,
“Trump won because college-educated Americans are out of touch,”
https://www.washingtonpost.com/posteverything/wp/2016/11/09/trump-won-because-
college-educated-americans-are-out-of-touch/
As the reality of President-elect Donald Trump settled in very early Wednesday morning, MSNBC’s Chris Hayes summed up an
explanation common to many on the left: The Republican nominee pulled ahead thanks to old-
fashioned American racism .
But the attempt to make Trump’s victory about racism appears to be at odds with what
actually happened on Election Day. Consider the following facts.
Twenty-nine percent of Latinos voted for Trump, per exit polls. Remarkably, despite the near-ubiquitous narrative
that Trump would have deep problems with this demographic given his comments and position on immigration, this was a higher
percentage of those who voted for GOP nominee Mitt Romney in 2012. Meanwhile, African Americans did not turn out
to vote against Trump. In fact, Trump received a higher percentage of African American
votes than Romney did.
And while many white voters deeply disliked Trump, they disliked Democrat Hillary Clinton even more. Of those who had negative
feelings about both Trump and Clinton, Trump got their votes by a margin of 2 to 1. Votes for Trump seemed to signal a rejection of
the norms and values for which Clinton stood more than an outright embrace of Trump. He was viewed unfavorably, for instance, by
61 percent of Wisconsinites, but 1 in 5 in that group voted for him anyway.
The most important divide in this election was not between whites and non-whites. It was
between those who are often referred to as “ educated ” voters and those who are described as “ working class”
voters.
The reality is that six in 10 Americans do not have a college degree, and they elected Donald Trump.
College-educated people didn’t just fail to see this coming — they have struggled to display even a
rudimentary understanding of the worldviews of those who voted for Trump. This is an
indictment of the monolithic, insulated political culture in the vast majority our colleges and
universities.
As a college professor, I know that there are many ways in which college graduates simply know more about the world than those
who do not have such degrees. This is especially true — with some exceptions, of course — when it comes to “hard facts” learned in
science, history and sociology courses.
But I also know that that those with college degrees — again, with some significant exceptions — don’t necessarily know
philosophy or theology. And they have especially
paltry knowledge about the foundational role that
different philosophical or theological claims play in public thought compared with what is
common to college campuses . In my experience, many professors and college students don’t even realize that their
views on political issues rely on a particular philosophical or theological stance.
Higher education in the United States, after all, is woefully monolithic in its range of worldviews. In
2014, some 60 percent of college professors identified as either “liberal” or “far-left,” an increase from 42
percent identifying as such in 1990. And while liberal college professors outnumber conservatives 5-to-1,
conservatives are considerably more common within the general public . The world of
academia is, therefore, different in terms of political temperature than the rest of society, and what is
common knowledge and conventional wisdom among America’s campus dwellers can’t be taken
for granted outside the campus gates.
While some of the political differences between educated and working-class voters is based on a dispute over hard facts, the much
broader and more foundational disagreements are about norms and values. They turn on first principles grounded in the very
different intuitions and stories which animate very different political cultures. Such disagreements cannot be explained by the fact
that college-educated voters know some facts which non-college educated voters do not. They are about something far more
fundamental.
Think about the sets of issues that are often at the core of the identity of the working-class folks who
elected Trump: religion, personal liberty’s relationship with government, gender, marriage,
sexuality, prenatal life and gun rights. Intuition and stories guide most working-class communities on these issues.
With some exceptions, those professorial sorts who form the cultures of our colleges and universities have very
different intuition and stories . And the result of this divide has been to produce an educated class with an
isolated, insular political culture.
Religion in most secular institutions, for instance, is at best thought of as an important sociological phenomenon to understand —
but is very often criticized as an inherently violent, backward force in our culture, akin to belief in fairies and dragons. Professors are
less religious than the population as a whole. Most campus cultures have strictly (if not formally) enforced
dogmatic views about the nature of gender, sexual orientation, a woman’s right to choose
abortion, guns and the role of the state as primary agent of social change. If anyone disagrees
with these dogmatic positions they risk being marginalized as ignorant, bigoted, fanatical or
some other dismissive label.
Sometimes the college-educated find themselves so unable to understand a particular working-class point of view that they will
respond to those perspectives with shocking condescension. Recall that President Obama, in the midst of the 2012 election cycle,
suggested that job losses were the reason working-class voters were bitterly clinging “to guns or religion or antipathy to people who
aren’t like them.” The religious themselves, meanwhile, likely do not chalk their faith up to unhappy economic prospects, and they
probably find it hard to connect with politicians who seem to assume such.
Thus today’s college graduates are formed by a campus culture that leaves them unable to
understand people with unfamiliar or heterodox views on guns, abortion, religion, marriage,
gender and privilege. And that same culture leads such educated people to either label those with
whom they disagree as bad people or reduce their stated views on these issues as
actually being about something else , as in Obama’s case. Most college grads in this culture are simply
never forced to engage with or seriously consider professors or texts which could
provide a genuine, compelling alternative view .
For decades now, U.S. colleges and universities have quite rightly been trying to become more diverse
when it comes to race and gender. But this election highlights the fact that our institutions of higher
education should use similar methods to cultivate philosophical , theological and political
diversity .
These institutions should consider using quotas in hiring that help faculties and administrations more accurately reflect the wide
range of norms and values present in the American people. There should be systemwide attempts to have texts assigned in classes
written by people from intellectually underrepresented groups. There should be concerted efforts to protect political minorities from
discrimination and marginalization, even if their views are unpopular or uncomfortable to consider.
The goal of such changes would not be to convince students that their political approaches are
either correct or incorrect. The goal would instead be educational: to identify and understand
the norms, values, first principles, intuitions and stories which have been traditionally
underrepresented in higher education. This would better equip college graduates to
engage with the world as it is, including with their fellow citizens.
The alternative, a reduction of all disagreement to racism, bigotry and ignorance — in
addition to being wrong about its primary source — will simply make the disagreement far
more personal, entrenched and vitriolic . And it won’t make liberal values more
persuasive to the less educated, as Trump victory demonstrates .
It is time to do the hard work of forging the kind of understanding that moves beyond mere
dismissal to actual argument . Today’s election results indicate that our colleges and
universities are places where this hard work is particularly necessary.
Literally every social organization involves some judgement on ideal forms and
arguments---it is impossible to escape contestation, so you should make it as
effective as possible at the outset
Lea Ypi 16, Professor in Political Theory in the Government Department, London School of
Economics, 2016, “Political realism and the ethics of activism,” in The Trouble with Democracy:
Political Modernity in the 21st Century, ed. Rosich & Wagner
If we take seriously the unavoidability of conflict thesis we will come up with two different
interpretations of legitimacy demands compatible with norms internal to it.9 One interpretation leads to the
idea that since politics is by its nature inherently coercive and ill--‐suited to promote a variety of ends, we
should seek to contain its reach by theorizing alternative associations (economic, cultural, religious) where
individuals can pursue their interests and act together in a more spontaneous form.10 Thus, if we limit our
ambitions to the attempt to secure order rather than guarantee justice, we will contain the potential for abusing
power in seeking to realise the latter. But the problem with this view is that it conflates the
statement that politics is essentially coercive with another one, which appears more controversial, namely,
that only politics is essentially coercive. Although it is plausible to say that any exercise of political power, however
noble its inspiration, is likely to result in a few elites imposing their own standards of legitimacy to the rest of the civic body, it is
naïve to suppose that only political elites are vulnerable to a similar critique. If disagreement
among individuals exists and is unavoidable, it will shape any association in which they take part. If rules
are needed to contain such disagreement, the question of who makes such rules and in what
name, will apply to all circumstances characterized by division of labour, structures of coordination,
and collective decision--‐making. Thus, not just political institutions, but also families, the
market, religious organisations (to mention but the most relevant examples) will entail some degree of
coercion in order to flourish. It is contrary to the spirit of realism to assume that they will
spontaneously guarantee the pursuit of agents’ ends free from any degree of unilateral
interference. Even more importantly, if disagreement pervades all areas of human interaction, the distinctiveness of the political
as that realm in which collective decisions must be made on the face of such disagreements seems difficult to capture.
1NR
K
Articulating a progressive vision capable of challenging Trumpism is key to check
every form of oppression
Matthew Williams 17, Researcher, The Conflict Archives, MA in Conflict, Security, and
Development from King’s College London, 1/31/17, “Trumpian extremism will catalyse the
West's decline,” http://theconflictarchives.com/latest-articles/2017/1/27/america-first-the-
republicans-and-redcaps-will-lead-the-united-states-to-the-brink
Trumpian extremism is a hybrid of nearly two decades of misplaced policy, and may have been the
catalyst required to rudely awaken progressives from their slumber and, in some cases,
apathy. There is not only a need to fight reactively for liberal and progressive thought, but to
expand its meaning, to start its reform and revolution. Chelsea Manning, to some extent, commented
correctly that 'the one simple lesson to draw from President Obama's legacy: do not start off with
compromise. What we need is an unapologetic progressive leader.'
While politics must involve compromise and understanding the fundamental frustrations which
allowed Donald Trump to come to the most powerful position in the world, the young must stand
unapologetically for progressive thought, for a progressive future and fight every inch
of the way to prevent the West falling back towards behaviours which defined its darkest days
in history. "The great age of revolution!" Nigel Farage exclaims. "Their world is crumbling, ours is being built." Marine Le Pen
asserts. "They want to stop our movement!" states Donald Trump. The far-right and right wing are insurgencies,
they are not revolutions and the agendas they spout are a far-cry from visionary. Race war, the
threat of a clash of civilisations, Islamophobia, anti-semitism, anti-immigrant rhetoric,
nationalism, mass-deportation, xenophobia, walls, white supremacism, exceptionalism,
intimidation, and voices of violence appear more a relapse into our baser impulses and man's darkest
moments rather than a revolution. It is a volatile and dangerous form of politics: the politics of fear and
scapegoating.
The American people must act and must fight every inch against Donald Trump's presidency and most
importantly the sycophants and opportunists who surround him. If they do not they may find the United States they once knew slip
through their fingers. If the American Republic were to slip from view, it would hasten the West's decline.
Donald Trump's administration in hindsight may not be the worst, however if allowed space to push its xenophobic
agendas, it may be the beginning of worse to come and this is a crossroad which cannot be ignored
and our politicians must step up to the challenge .
Case
Demands that the state not commit violence do not reaffirm its legitimacy---rather,
they highlight its inconsistency and use that inconsistency to improve material
conditions in opposition to state desires
Saul Newman 10, Reader in Political Theory at Goldsmiths, U of London, Theory & Event
Volume 13, Issue 2
There are two aspects that I would like to address here. Firstly, the notion of demand: making certain demands on the
state – say for higher wages , equal rights for excluded groups, to not go to war, or an end to draconian policing –
is one of the basic strategies of social movements and radical groups. Making such demands does not
necessarily mean working within the state or reaffirming its legitimacy. On the
contrary, demands are made from a position outside the political order, and they
often exceed the question of the implementation of this or that specific
measure. They implicitly call into question the legitimacy and even the sovereignty of
the state by highlighting fundamental inconsistencies between, for instance, a formal constitutional
order which guarantees certain rights and equalities, and state practices which in reality violate
and deny them.
Non-reformist reforms solve---it’s possible to keep in mind the end goal of ending
capitalist and identitarian hierarchies while pushing for incremental actions on
the way there---those incremental reforms can create iterative momentum for the
aff’s telos
Milan Rai 14, anti-war activist and Advisory Board member of the Journal of Chomskyan
Studies, “Demanding the Nearly Impossible: Non-Reformist Reform,” 2014,
http://www.telesurtv.net/english/opinion/Demanding-the-Nearly-Impossible-Non-Reformist-
Reform-20140907-0044.html
“Demand the impossible,” said the Situationists. “Demand nothing, take everything,” said the Anarchists. “Demand moderate
reforms,” said the Social Democrats. “Demand something everyday but only if you’re never going to get it,” said the Trotskyists.
If you are committed to social transformation, or, in other words, to revolutionary politics, there is something
challenging about formulating demands. If a demand can easily be achieved under present
circumstances, then it may well just reinforce the existing framework of power . If
ultimate revolutionary aims are presented as immediate demands, they have no hope of
being implemented, and are effectively just another way of reinforcing the existing framework of power.
The influential community organiser Saul Alinsky believed in seeking easy wins, early on. He thought a key goal for organisers
should be to boost the confidence of demoralised communities. In his famous manual Rules for Radicals, Alinsky tells the story of
how he manipulated the first community he attempted to organise, the ‘Back of the Yards’ in Chicago. One of the demands in the
community was for infant medical services (who had been driven out years earlier by the local churches). Alinsky found out that all
that was needed to reinstate the services was a simple request. He hid this information from the community group, called an
emergency meeting, and organised a storming of the offices of the Infant Welfare Society. On his instruction, the group banged on
desks and loudly demanded a return of infant medical services, refusing to allow officials the chance to explain the procedure. The
delegation ended their tirade by saying: ‘And we will not take “No” for an answer!’ Alinsky cut off the woman official, demanding: ‘Is
it yes or is it no?’ She said: ‘Well, of course, it’s yes.’ Alinsky led the triumphant delegation home, as they digested this ‘lesson’ about
the power of protest.
Personally, I don’t agree with deceiving people, but there is an important message here about the psychology of social change. It’s
indisputable that people’s sense of themselves changes in the course of struggle, that it is in struggle
that we can overcome the psychological limitations that we place on ourselves, that have been
implanted and reinforced by existing institutions.
Alinsky’s basic point was that organisers need to nurture confidence, ‘The organizer knows, for example, that his [sic, or her] biggest
job is to give the people the feeling that they can do something, that while they may accept the idea that organization means power,
they have to experience this idea in action. The organizer's job is to begin to build confidence and hope in the idea of organization
and thus in the people themselves: to win limited victories, each of which will build confidence and
the feeling that “if we can do so much with what we have now just think what we will be able to do when we get big and strong”.’
Strategy is about selecting a sequence of ‘limited victories’ that lead in the direction of your
ultimate goal.
In 1964, French Marxist André Gorz put forward the idea of pursuing ‘structural reform’, which he also called ‘non-reformist
reform’. Gorz described this as ‘a decentralization of the decision-making power, a restriction on the powers of State or Capital, an
extension of popular power, that is to say, a victory of democracy over the dictatorship of profit’ (Strategy for Labor, emphasis in
original). Gorz pointed out that the demand for 500,000 new housing units to be built every year in France, to meet people’s housing
needs, could be either a neo-capitalist reform (if it involved public subsidies to private enterprise) or an anti-capitalist reform (if the
construction was a socialised public service on territory confiscated from landowners).
In the labour movement, Gorz argued for ‘a strategy of progressive conquest of power by the workers’, uniting ‘wage demands, the
demand for control, and the demand for self-determination by the workers of the conditions of work’. The purpose of this
progressive conquest of power was to build the ‘autonomous power’ of workers within capitalist enterprises. Non-reformist
reforms ‘assume a modification of the relations of power; they assume that the workers will take over powers or
assert a force (that is to say, a non-institutionalized force) strong enough to establish, maintain, and expand those tendencies within
the system which serve to weaken capitalism and to shake it joints’. There is always a risk that such powers could
be reabsorbed by the system and subordinated to its functioning, but Gorz argued that the risk had to be run as there
was no alternative in France at that time: ‘Seizure of power by insurrection is out of the question, and
the waiting game leads the workers’ movement to disintegration .’ Gorz argued that unions should demand,
among other things, a ‘collective output bonus’ for all, rather than bonuses for individuals. They should seek to negotiate the speed
and rhythm of work, and the qualifications required for a job. The unions should gain control of vocational training schools ‘to
ensure that they do not train robots, mutilated individuals with limited horizons and a life burdened by ignorance, but professionally
autonomous workers with virtually all-sided skills, capable of advancing in their jobs at least as fast as technological development’.
nterestingly states like Saudi Arabia or Mauritania, where homosexual acts are punishable with death penalty are spared in Puar’s writings. Moreover,
she equates the provisional decriminalization of same sex acts in India and invalidation of sodomy
laws in USA as examples of homonationalism, discounting the differences between two very
different historical and regional contexts. The two legal reforms are a result of complex social
and legal struggles that produce ambivalent and diverse effects, which are questionably
disregarded. If Europe universalized its norms and epistemologies through colonialism, then decolonization is incomplete
without the deuniversalization and provincialization of Euro-American experiences and
politics. This would entail a nuanced historical analysis of diverse configurations. In this context the specific
German experience with fascism and totalitarianism must not be imposed seamlessly on post-colonial contexts to promote a transnational state-phobic
queer politics. This would be disastrous.
Progress/Time/State
At no point have we said progress is linear or inevitable---Trump’s election
obviously proves that there’s no certain outcome of political contestation.
Resistance is a terrain of constant struggle and reimagination that doesn’t follow a
linear path, but does allow opportunities to shape politics for the better, and the
aff is far too sweeping in their indicts of these opportunities.
Zadie Smith 16, former Radcliffe Institute for Advanced Study Fellow at Harvard, fellow of the
Royal Society of Literature, 12/22/2016, On Optimism and Despair, The New York Review,
http://www.nybooks.com/articles/2016/12/22/on-optimism-and-despair/
As my dear, soon-departing president well understood, in this world there is only incremental
progress . Only the willfully blind can ignore that the history of human existence is simultaneously the
history of pain: of brutality, murder, mass extinction, every form of venality and cyclical horror.
No land is free of it; no people are without their bloodstain; no tribe entirely innocent. But there
is still this redeeming matter of incremental progress. It might look small to those with
apocalyptic perspectives, but to she who not so long ago could not vote, or drink from the same
water fountain as her fellow citizens, or marry the person she chose, or live in a certain
neighborhood, such incremental change feels enormous.¶ Meanwhile the dream of time travel—for
new presidents, literary journalists, and writers alike—is just that: a dream. And one that only makes sense if
the rights and privileges you are accorded currently were accorded to you back then, too. If some
white men are more sentimental about history than anyone else right now it’s no big surprise:
their rights and privileges stretch a long way back. For a black woman the expanse of livable
history is so much shorter. What would I have been and what would I have done—or more to the
point, what would have been done to me—in 1360, in 1760, in 1860, in 1960? I do not say this to claim
some pedestal of perfect victimhood or historical innocence. I know very well how my West African ancestors sold and enslaved their
tribal cousins and neighbors. I don’t believe in any political or personal identity of pure innocence and
absolute rectitude .¶ But neither do I believe in time travel. I believe in human limitation, not
out of any sense of fatalism but out of a learned caution, gleaned from both recent and distant history. We
will never be perfect: that is our limitation. But we can have, and have had, moments in which
we can take genuine pride. I took pride in my neighborhood, in my childhood, back in 1999. It was not perfect but it was
filled with possibility. If the clouds have rolled in over my fiction it is not because what was perfect has been proved empty but
because what was becoming possible—and is still experienced as possible by millions—is now denied as if it never did and never
could exist.¶ I realize as I write this that I have strayed some way from the happiness that should rightly attend accepting a literary
prize. I am very happy to accept this great honor—please don’t mistake me. I am more than happy—I am amazed. When I started to
write I never imagined that anyone outside of my neighborhood would read these books, never mind outside of England, never mind
“on the continent,” as my father liked to call it. I remember how stunned I was to embark on my very first European book tour, to
Germany, with my father, who had last been here in 1945, as a young soldier in the reconstruction. It was a trip filled, for him, with
nostalgia: he had loved a German girl, back in 1945, and one of his great regrets, he admitted to me on that trip, was not marrying
her and instead coming home, to England, and marrying first one woman and then another, my mother.¶ We made a funny pair on
that tour, I’m sure: a young black girl and her elderly white father, clutching our guidebooks and seeking those spots in Berlin that
my father had visited almost fifty years earlier. It is from him that I have inherited both my optimism and my despair, for he had
been among the liberators at Belsen and therefore seen the worst this world has to offer, but had, from there, gone forward, with a
sufficiently open heart and mind, striding into one failed marriage and then another, marrying both times across various lines of
class, color, and temperament, and yet still found in life reasons to be cheerful, reasons even for joy.¶ He was, I realize now, one of
the least ideological people I ever met: everything that happened to him he took as a particular case, unable or unwilling to
generalize from it. He lost his livelihood but did not lose faith in his country. The education system failed him but he still revered it
and placed all his hopes for his children in it. His relations with women were mostly disastrous but he did not hate women. In his
mind he did not marry a black girl, he married “Yvonne,” and he did not have an experimental set of mixed-race children, he had me
and my brother Ben and my brother Luke.¶ How rare such people are! I am not so naive even now as to believe we have enough of
them at any one time in history to form a decent and tolerant society. But neither will I ever deny their existence or the possibility of
lives like his. He was a member of the white working class, a man often afflicted by despair who still managed to retain a core
optimism. Perhaps in a different time under different cultural influences living in a different society he would have become one of
the rabid old angry white men of whom the present left is so afeared. As it was, born in 1925 and dying in 2006, he saw his children
benefit from the civilized postwar protections of free education and free health care, and felt he had many reasons to be grateful.¶
This is the world I knew.
Things have changed, but history is not erased by change, and the
examples of the past still hold out new possibilities for all of us, opportunities to remake, for a
new generation, the conditions from which we ourselves have benefited. Neither my readers
nor I am in the relatively sunlit uplands depicted in White Teeth anymore. But the lesson I take
from this is not that the lives in that novel were illusory but rather that progress is never permanent, will
always be threatened, must be redoubled, restated, and reimagined if it is to survive. I
don’t claim that it’s easy. I do not have the answers. I am by nature not a political person and these are the darkest
political times I have ever known. My business, such as it is, concerns the intimate lives of people. The people who ask
me about the “failure of multiculturalism” mean to suggest that not only has a political ideology failed but that human beings
themselves have changed and are now fundamentally incapable of living peacefully together despite their many differences. ¶ In this
people who believe in
argument it is the writer who is meant to be the naive child, but I maintain that
fundamental and irreversible changes in human nature are themselves ahistorical
and naive . If novelists know anything it’s that individual citizens are internally plural: they have within
them the full range of behavioral possibilities. They are like complex musical scores from which
certain melodies can be teased out and others ignored or suppressed, depending, at least in part,
on who is doing the conducting. At this moment, all over the world—and most recently in America—the
conductors standing in front of this human orchestra have only the meanest and most banal
melodies in mind. Here in Germany you will remember these martial songs; they are not a very distant memory. But
there is no place on earth where they have not been played at one time or another.
Those of us who remember, too, a finer music must try now to play it, and encourage others, if we can, to sing along.