1nc vs 13th amendment

Off
 1–T
Enact excludes courts and agencies – the aff ‘adopts’, not ‘enacts’
Court of Appeals of Arizona 20. [Brief filed on Court Listener; 3/19/20; “Netherlands  v.  Md
Helicopters, 1 CA-CV 19-0019 (Ariz. Ct. App. 2020),”
https://www.courtlistener.com/opinion/4737531/netherlands-v-md-helicopters/; DS]

MD Helicopters’ argument regarding the meaning of the terms “enact” and “adopt” is similarly unpersuasive on
the question of whether A.R.S. § 12-3252(B)(2) refers only to acts of a foreign country’s legislative body, and not of its courts as well. The
common usage of the term “enact” does not generally include the actions of a court. See, e.g., 2015 Ariz. Sess.
Laws, ch. 170, § 1 (1st Reg. Sess.) (“Be it enacted by the Legislature of the State of Arizona . . . .” (emphasis added)); Cronin v. Sheldon, 195 Ariz.
531, 537 (1999) (“[T]he
legislature has the authority to enact laws.”). But the term “adopt” is not nearly so limited. Courts
make law through the adoption of rules or common-law principles. See, e.g., Carrow Co. v. Lusby, 167 Ariz. 18, 24 (1990) (“We
adopt the modern common law view that an owner of livestock owes a duty of ordinary care to motorists traveling on a public highway in open
range.” (emphasis added)); Judson C. Ball Revocable Tr. v. Phoenix Orchard Grp. I, L.P., 235 Ariz. 519, 523–24, 11, 16 (App. 2018) (Finding
Delaware courts’ decision to “adopt” rule of standing for shareholder suits “as a matter of common law” persuasive and deciding to “adopt”
that rule as well). Executive agencies are also frequently empowered by the legislature to “ adopt” rules and
regulations. See, e.g., A.R.S. § 23-361 (Industrial Commission “may adopt such rules and regulations as necessary” to administer and
enforce statutes governing the payment of wages (emphasis added)). And the use of both the terms “enact” and “adopt” must
be read to contemplate different things, or one term will be rendered superfluous . See Cont’l Bank, 131 Ariz. at
8.

Violation – the aff uses the courts

Voting issue for limits and ground – there is an infinite number of tweaks and agencies
that would explode neg prep and moots key negative offense like the agent cps and
ptx das.

Lack of agent specification is a voting issue – It allows the 2ac to skirt key offence like
as agent cps and ptx das. Voter for fairness and education – spec in the plan text.
 2 – CP
Pursuant to Article V of the Constitution, at least two-thirds of the States should call a
limited constitutional convention and at least three-fourths of the States should ratify
a constitutional amendment interpreting “badges and incidents of slavery” identified
in Section Two of the Thirteenth Amendment to include at least all discriminatory?
instances of policing, lack of reproductive healthcare access, lack of housing access,
and lack of employment access, and eliminate those “badges and incidents of slavery”
Solves the AFF and avoids the DAs.
Thomas H. Neale 16, Specialist in American National Government, 03-29-2016 (“The Article V
Convention to Propose Constitutional Amendments: Contemporary Issues for Congress,” Congressional
Research Service, https://fas.org/sgp/crs/misc/R42589.pdf)
The Limited Convention

The concept of a limited convention has commanded considerable support in the debate over the Article V
alternative. A range of constitutional scholars maintains that , contrary to Charles Black’s assertion, quoted earlier, a
convention may be limited to a specific issue or issues contained in state applications; in fact, some observers
maintain that it must be so limited. A fundamental assumption from their viewpoint is that the framers did not contemplate a
general or large-scale revision of the Constitution when they drafted Article V . The late Senator Sam Ervin, who
supported the Article V alternative and championed advance congressional planning for a convention, expounded this point of view: ... there
is strong evidence that what the members of the [original constitutional] convention were concerned with ... was the power to make
specific amendments.... [The] provision in article V for two exceptions to the amendment power42 underlines the notion that the
convention anticipated a specific amendment or amendments rather than general revision .43 Another commentator,
championing state authority in the convention issue, asserted that the founders’ intention in establishing the alternative amendment process
was to check the ability of Congress to impede proposal of an amendment that enjoyed widespread support. He claimed that a
convention
limited to an issue specified by the states in their applications would be constitutional , but that a convention
could be limited by the states, but not by Congress: Congress may not impose its will on the convention....
The purpose of the Convention Clause is to allow the States to circumvent a recalcitrant Congress. The Convention Clause,
therefore, must allow the States [but not Congress] to limit a convention in order to accomplish this purpose.44 The primacy of the states in
this viewpoint thus suggests that a convention could be open and general , or limited, depending on the
applications of the legislatures. For its part, Congress has historically embraced the limited convention. When
considering this question in the past, it has claimed the authority to call the convention, but also asserted a constitutional duty to
respect the state application process, and to limit the subject of amendments to the subject areas cited
therein. For instance, in 1984, the Senate Judiciary Committee claimed Congress’s power both to set and to enforce limits on the subject or
subjects considered by an Article V Convention to those included in the state petitions. The committee’s report on the Constitutional
Convention Implementation Act of 1984 (S. 119, 98th Congress), stated: Under this legislation, it is the States themselves, operating through
the Congress, which are ultimately responsible for imposing subject-matter limitations upon the Article V Convention.... the States are
authorized to apply for a convention “for the purpose of proposing one or more specific amendments.” Indeed, that is the only kind of
convention within the scope of the present legislation, although there is no intention to preclude a call for a “general” or “unlimited”
convention.45
 3 – CP
The United States federal judiciary ought to establish Section Two of the Thirteenth
Amendment expands to include at least all discriminatory instances of policing, lack of
reproductive healthcare access, lack of housing access, and lack of employment access
and eliminate those “badges and incidents of slavery.”

The Courts are the best venue for addressing Thirteenth Amendment law
Goodwin 19 (Michele Goodwin, Chancellor's Professor of Law, is the Founding Director of the Center
for Biotechnology and Global Health Policy at the University of California, Irvine. “THE THIRTEENTH
AMENDMENT: MODERN SLAVERY, CAPITALISM, AND MASS INCARCERATION,” Cornell Law Review 104,
no. 4 (May 2019): 899-990. HeinOnline)

The Supreme Court can intervene and determine the constitutionality of both existing and proposed
amendments in at least two ways: interpretation and the ratification process . The debate regarding the Second
Amendment underscores the powerful role of the Court to determine the constitutionality of the constitution and legislation. Prior to the
Supreme Court's decision in District of Columbia v. Heller, "guns were primarily a political issue-one for legislatures to sort out without much
judicial oversight."50 2 That has now changed. According to one commentator, "now guns are also unambiguously a constitutional issue, which
means the U]ustices, not elected lawmakers, have the final say."50 3 In Heller, the Court found an individual right to keep and bear arms:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear
arms. Of course the right was not unlimited, just as the First Amendment's right of free speech was not .... Thus, we do not read the Second
Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect
the right of citizens to speak for any purpose.50 4

However, prior to Heller, the last time the Supreme Court interpreted the Second Amendment was in United States v. Miller in 1939, and in
that case, the Court interpreted the Second Amendment in conjunction with the Militia Clause, concluding that "[iun the absence of any
evidence tending to show that possession or use of a [sawed-off shotgun] . . . has some reasonable relationship to the preservation or efficiency
of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."50 5 The
Court concluded that the district court erred in holding the National Firearms Act provisions unconstitutional. 5 0 6

The Thirteenth Amendment presents a justiciable question regarding the enforcement of the Punishment Clause
and its racially discriminatory history and impact, which have caused the disparate suffering of Black
Americans. Indeed, it is a question best suited for the Court . In the past, scholars have persuasively argued that the Court
has failed to act in the protection of vulnerable individuals. They cite to cases such as Buck v. Bell5 0 7 as evidence of the Court's failure to
intervene when states inflicted great harms and were not held accountable. 508

Erwin Chemerinsky writes, "at every opportunity until the Civil War, the Supreme Court acted to protect the rights of slave owners and denied
all rights to those who were enslaved."50 9 Nevertheless, the
Supreme Court is frequently the only hope for vulnerable
groups in times of crisis and when suffering from status-based offenses. The Court is often the last
hope for minority groups who by state statute or action experience discrimination, stigmatization, and
significant harms.
 4 – CP
The fifty states, all relevant territories, and state and local judiciaries of the United
States establish that Section Two of the Thirteenth Amendment expands to include at
least all discriminatory instances of policing, lack of reproductive healthcare access,
lack of housing access, and lack of employment access and eliminate those “badges
and incidents of slavery.”
The states can create fundamental rights through legislation & interpretation of the
13th ammendment
Goodwin 19 (Michele Goodwin, Chancellor's Professor of Law, is the Founding Director of the Center
for Biotechnology and Global Health Policy at the University of California, Irvine. “THE THIRTEENTH
AMENDMENT: MODERN SLAVERY, CAPITALISM, AND MASS INCARCERATION,” Cornell Law Review 104,
no. 4 (May 2019): 899-990. HeinOnline)
3. Legislative Enactment: The Possibility of Federalism

One channel for advocacy is enacting legislation to ban slavery, including for conviction of a crime,
state by state. At least one state has considered this as a ballot initiative and, at the time of this Article's publication, had recently
succeeded by a margin of 65% in favor to 35% opposed. 48 3 In 2018, Colorado voters pursued this option after a failed ballot initiative two
years prior.4 84 Amendment A asked Colorado voters, "Shall there be an amendment to the Colorado constitution that prohibits slavery and
involuntary servitude as punishment for a crime and thereby prohibits slavery and involuntary servitude in all circumstances?" 485 The
referendum, which had "overwhelning bipartisan support from Colorado lawmakers" will amend Article II, Section 26 of the state's constitution,
which for more than a century declared, "There shall never be in this state either slavery or involuntary servitude, except as a punishment for
crime, whereof the party shall have been duly convicted. ' " 48 6 The law shall now read, "There shall never be in this state either slavery or
involuntary servitude."48 7

States possess the power to legislate independent of the federal government. States have used this
authority to protect vulnerable groups through the enactment of civil rights laws and constitutional
amendments, to guarantee educational opportunity, promote marriage equality, and protect
reproductive privacy. From organ transplant policy to gay marriage, state legislatures have, from time to time, been a
more nimble and forceful advocate for the rights of vulnerable individuals than courts or the federal
government. 4 88
Prior to the 2015 Supreme Court ruling in Obergefell v. Hodges,48 9 legalizing gay marriage, states such as Alaska, Arizona, California, Colorado,
Hawaii, Illinois, Massachusetts, Minnesota, and others enacted laws to create and protect marriage equality. These laws inscribed rights to gay
men and women that had not previously existed in federal or state constitutions, which were later upheld by the Supreme Court, thereby
permitting gay and lesbian Americans the right to marry. 4 9 0

Thus, a
potential approach to addressing modern slavery as made constitutional by the Thirteenth
Amendment is through legislative action. Through legislative enactments, Congress and states create rights to
protect the interests of people where such rights do not exist in the Constitution . Those rights carry the
weight and enforcement of law. Notable examples already exist.49 1 Prior to the ratification of the Thirteenth
Amendment abolishing slavery, state legislatures abolished slavery. 492

Perhaps one
of the most compelling examples of the legislative experiment to forge a right where one
does not exist within the Constitution relates to public education. That is, while the right to an education is recognized
under the Fourteenth Amendment for Equal Protection purposes, the right itself is not protected by the Constitution.49 3 Rather this right is
created by state governments. In San Antonio Independent School District v. Rodriguez,494 the Court "shifted the emphasis in education
litigation to state courts, since a majority of state constitutions guarantee a right to education."495
Consequently, "revisions to those guarantees have transformed some into specific and sophisticated ones."4 9 6 In her article Rethinking the
Equity vs. Adequacy Debate: Implications for Rural School Finance Reform Litigation, Professor Anna Williams Shavers references state
constitutions that "unlike Federal Constitutional language, contain an explicit reference to education. "497

Through federalist rulemaking, state legislatures play a major role in securing civil rights. The right to an
education is one such example. Moreover, fundamental rights born through state-lawmaking are often
bolstered by other state laws, federal laws, judicial ruling, and even federal welfare and funding. 498 The concept of
utilizing federalism to secure rights is not new, particularly in circumstances where Congress has failed
to act, or where a constitutional guarantee does not exist . The education context provides a strong example of that.4 9 9
Arguably, one of the most effective and efficient means of effectuating such change in law is the use of a
model rule or law process,500

Finally, the best

example of the successful use of federalism to achieve fundamental rights relates directly
to the question of slavery. Prior to the ratification of the Thirteenth Amendment in 1865, many states,
whether through legislation or constitutional provision, outlawed slavery . 5 0 1 The Appendix provides a
chronological chart, highlighting States that abolished slavery prior to the 1865 ratification of the Thirteenth Amendment.
 5 – DA
State control over criminal justice policy is the bedrock of American federalism
Barkow 5 [Rachel E. Barkow, Associate Professor, NYU School of Law. FEDERALISM: OUR FEDERAL
SYSTEM OF SENTENCING. Stanford Law Review, 2005. www.stanfordlawreview.org/wp-
content/uploads/sites/3/2010/04/Barkow_0.pdf]

The federal system of the United States is based on the bedrock premise that the states bear the
primary responsibility for criminal justice policy. States are better able to ensure that local communities
can define crimes and set sentences according to the preferences of their residents. Indeed, it has long
been recognized that criminal justice is at the core of state, not national, responsibility. In recent decades,
however, the importance of federalism has often been overshadowed by shortsighted political concerns. In particular, there has been an
unprecedented expansion of federal criminal law into areas traditionally left to the states. The federal government has intervened in many local
crimes— from carjacking to crimes committed with a firearm or involving drugs1— without any showing that federal intervention is necessary
or appropriate. While there are important areas that require federal intervention, many federal crimes of the past few decades fall outside this
category. Congress has responded to high-profile local crimes not only with new federal laws, but also with longer sentences for existing laws.
Over the past three decades, federal sentences have grown dramatically. Congress has ignored the recommendations of the United States
Sentencing Commission to cease using mandatory minimum sentences, despite widespread evidence by the Commission and other experts that
such minimums result in disparate sentences for similarly situated offenders and do not yield greater deterrence. And Congress has continued
to increase the maximum penalty for crimes without any evidence that these increases are the most effective way to combat crime. This
pattern of federal expansion has placed a drain on federal resources, including federal prosecutors, judges, and prisons. In 1980, just over
26,000 cases were filed by U.S. Attorneys. In 2001, that number climbed to well over 53,000 cases.2 A huge part of that increase can be
attributed to the explosion in drug cases, which increased from 7119 cases in 1980 to 30,775 in 2002.3 This in turn led to an increase in the
prison population. Between 1980 and 1996, the federal prison population increased 333%—a larger increase than state prisons experienced
over that same time period.4 Recent statistics show that the federal government has continued to outpace the states,5 with the federal
government now housing more prisoners than any single state.6 This Article highlights why these trends are problematic and why it
is
important for Congress to pay close attention to federalism values when considering sentencing policy.
Congress must stay within its appropriate sphere not only because it is constitutionally mandated to do
so, but also because it is wise policy. Moreover, even when federal jurisdiction is appropriate, it is
important for Congress to remember that the states have much to teach the federal government about
sentencing policy. The states have produced a bevy of sound sentencing innovations that the federal government would be well served in
adopting.

Reversal would break the presumption against preemption over state police powers –
that’s key to coronavirus quarantines
Blake and Arianina 20 [David Blake is a partner and chairs the state attorneys general practice at Squire
Patton Boggs LLP. Kristina Arianina is a senior associate at the firm. Potential Federal Vs. State Conflicts
Due To COVID-19. April 9, 2020. https://www.law360.com/articles/1262048/potential-federal-vs-state-
conflicts-due-to-covid-19]

States also have the ability to use their police powers to enforce any declarations during emergencies. For
example, state police powers allow the zm to put in place isolation and quarantine laws to prevent or stop the
spread of disease, even over the objections of those affected and despite the inherent loss of liberty by those impacted. Such
orders must be temporary and well justified but they are very powerful when used. In accordance with these powers, states’ shelter-in-place
orders have forced the closure of an untold number of nonessential businesses and restricted the freedom of movement of their citizens except
for essential needs such as limited visits to grocery stores or the doctor’s office. Over 40 states had some variation of a shelter-in-place order,
covering 97% of Americans. It is now a crime to leave your home unless the government has decreed it is OK. The federal government also has
surprisingly powerful tools at its disposal during extraordinary health-related emergencies. For example, the basis for the federal government’s
authority to prescribe a quarantine and other health measures is based on the commerce clause, which gives Congress exclusive authority to
regulate interstate and foreign commerce. The Public Health Service Act gives the U.S. Department of Health and Human Services the authority
to impose quarantines to prevent the spread of communicable diseases “from foreign countries into the United States and within the United
States and its territories/possessions.” The authority for carrying out these measures has been delegated to the U.S. Centers for Disease Control
and Prevention. Through the CDC, the federal government has the authority to “take measures to prevent the entry and spread of
communicable diseases from foreign countries into the United States and between states.” However, the HHS and CDC rarely use the
quarantine powers and have traditionally deferred to state and local health authorities. So has, so far, the president. The
Federal
Government Is Not King On March 16, President Trump published "Coronavirus Guidelines for America—15 days to slow the spread,”
recommending that Americans “[l]isten to and follow the directions of your state and local authorities.” On March 26, when many states had
shelter-in-place orders extending into May and June, President Trump sent a letter to governors informing them that his
administration was working on the new guidelines that would reopen parts of the stalled U.S. economy as soon as
possible. Current federal social distancing guidelines expire April 30. So what would happen if President Trump were to relax
the federal guidelines yet governors determine stay-at-home orders remain indispensable to manage the
health crisis in their states? The preemption doctrine is legally complex and normally the supremacy clause of the U.S.
Constitution would suggest federal law is “the supreme law of the land.” But the application of the following principles to the
potential conflict between states and the federal government in the context of COVID-19 pandemic — where the states have adopted stricter
measures than the federal government to preserve health and safety — most
likely would result in state policies trumping
Trump’s efforts to open the country for business before governors agree. First, when a federal statute contains an
express preemption clause, as long as the statute is constitutional, it forecloses a potential state argument against preemption.[1] In other
words, if a federal statute says it preempts state laws on the same subject, it mostly likely does. The PHS Act, however, does not contain an
express preemption clause. In fact, it could be read as prohibiting the abrogation of a state or local quarantine as it states: “Nothing in this
section … may be construed as superseding any provision under State law … except to the extent that such a provision conflicts with an exercise
of Federal authority under this section.” The federal PHS power here would only work to create more restrictive policies, not eviscerate state
orders in the name of the economy. The federal wrench, at least in this situation, only ratchets in the wrong direction of where the president
seems to want to go. Second, courts
are likely to find against the federal preemption of state exercise of police
powers by federal law in the areas traditionally reserved for the states, such as public health, safety and
welfare. In these cases, the presumption against preemption may apply.[2] Quarantines historically fall
within the states’ police power. The U.S. Supreme Court recognized this as early as in 1824[3] and again in 1902: “from
an early day the power of the States to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants …
is beyond question.”[4]

That’s key to long term growth – quarantines now allow quick bounce back to a strong
economy
Rampell 20 [Catherine Rampell, WaPo columnist and economist. Saving lives in the pandemic will also
save the economy in the long run. March 30, 2020. https://www.washingtonpost.com/opinions/saving-
lives-in-the-pandemic-will-also-save-the-economy-in-the-long-run/2020/03/30/dffc211c-72c3-11ea-
a9bd-9f8b593300d0_story.html]

But if you listen to economists, you’ll learn that this is a false choice. Prematurely
reopening businesses, schools and public
gatherings — as Trump has agitated to do — would be worse for long-run economic growth than
requiring them to remain closed until the virus is contained . Last week, Trump and his National Economic Council
director, Larry Kudlow, complained that the “cure” to this pandemic — that is, our collective economic coma — might “be worse than the
disease.” Right-wing news organizations echoed this complaint, sometimes appallingly implying that Grandpa should be sacrificed to juice GDP.
After widespread pushback from public health experts, Trump gave in, and on Sunday extended social distancing guidance through the end of
April. Still, he appeared to want credit for making the supposedly bold choice to set aside U.S. economic interests (and by implication, his
political interests) to save lives. In fact, there’s near-unanimity among
economists that the best way to limit
economic damage would be to listen to the public health experts’ advice about how to limit infections
— including by continued dramatic social distancing measures. If the virus is not contained, customers
will be afraid to shop, travel and dine out, even without mandatory lockdowns. Or, as Harvard economics
professor Lawrence H. Summers wrote in The Post recently: “It is an elementary confusion to believe that lost growth and lost jobs are
primarily a consequence of social distancing measures rather than the pandemic itself.” In other words, the demand-side shock
would continue, even without forced business closures. So, too, would the supply-side shock. After all, Americans won’t
be able to work if they’re sick. They definitely won’t be able to work if they’re dead. In a recent University of Chicago IGM Economic
Experts Panel survey, 80 percent agreed that “Abandoning severe lockdowns at a time when the likelihood of a resurgence
in infections remains high will lead to greater total economic damage than sustaining the lockdowns to eliminate the
resurgence risk.” Not a single economist surveyed disagreed with the statement; remaining respondents instead said they were
“uncertain.” A bipartisan group of high-profile economists and former economic policymakers likewise signed onto a recent letter reading in
part: “Savinglives and saving the economy are not in conflict right now; we will hasten the return to robust economic
activity by taking steps to stem the spread of the virus and save lives .” Theoretical work by Martin Eichenbaum and
Sergio Rebelo (of Northwestern University) and Mathias Trabandt (of Freie Universitat Berlin) finds that, in the short term, there does appear to
be a trade-off between economic activity and health outcomes. That is, the containment measures required to limit the spread of the
coronavirus would result in a sharp initial recession. But over the long run, an optimal containment strategy would reduce economic costs,
largely because it preserves the lives of workers needed to keep the economy running. Their new working paper finds that “cities that
intervened earlier and more aggressively” through school closures, bans on public gathering, isolation and quarantine did better economically
post-pandemic than cities with a more laissez-faire approach. Economists, by the way, have also found ways to quantify the value of saved lives
above and beyond whatever might be measured by wages or productivity. A new paper from Michael Greenstone and Vishan Nigam, both of
distancing would save 1.7 million (!) lives in the next six
the University of Chicago, estimates that moderate social
months, an astronomical number largely due to not overwhelming hospital systems . This translates to
about $8 trillion economic benefits
in — equivalent to more than a third of GDP, and more than the size of
the entire annual federal budget — when monetized through a standard measure used by the U.S. government called the value of a statistical
life.

US growth solves global recovery and extinction – alternative is power vacuum

conflicts
Haass 13 [Richard N. Haass, President of the Council on Foreign Relations; previously served as
Director of Policy Planning for the US State Department. “The World Without America.” Project
Syndicate. https://www.project-syndicate.org/commentary/repairing-the-roots-of-american-power-by-
richard-n--haass]

But, like most temptations, the urge to gloat at America’s imperfections and struggles ought to be resisted.
People around the globe should be careful what they wish for. America’s failure to deal with its internal
challenges would come at a steep price. Indeed, the rest of the world’s stake in American success is nearly
as large as that of the US itself. Part of the reason is economic. The US economy still accounts for about one-quarter of global
output. If US growth accelerates, America’s capacity to consume other countries’ goods and services will
increase, thereby boosting growth around the world. At a time when Europe is drifting and Asia is slowing, only the US
(or, more broadly, North America) has the potential to drive global economic recovery. The US remains a unique
source of innovation. Most of the world’s citizens communicate with mobile devices based on technology developed in Silicon Valley;
likewise, the Internet was made in America. More recently, new technologies developed in the US greatly increase the
ability to extract oil and natural gas from underground formations. This technology is now making its
way around the globe, allowing other societies to increase their energy production and decrease both
their reliance on costly imports and their carbon emissions . The US is also an invaluable source of ideas .
Its world-class universities educate a significant percentage of future world leaders. More fundamentally, the US has long been a leading
example of what market economies and democratic politics can accomplish. People and governments around the world are far more likely to
become more open if the American model is perceived to be succeeding. Finally, the
world faces many serious challenges,
ranging from the need to halt the spread of weapons of mass destruction, fight climate change, and
maintain a functioning world economic order that promotes trade and investment to regulating
practices in cyberspace, improving global health, and preventing armed conflicts. These problems will
not simply go away or sort themselves out. While Adam Smith’s “invisible hand” may ensure the success of free markets, it is
powerless in the world of geopolitics. Order requires the visible hand of leadership to formulate and realize global
responses to global challenges. Don’t get me wrong: None of this is meant to suggest that the US can deal effectively with the
world’s problems on its own. Unilateralism rarely works. It is not just that the US lacks the means; the very nature of contemporary global
problems suggests that only collective responses stand a good chance of succeeding. But multilateralism is much easier to
advocate than to design and implement . Right now there is only one candidate for this role: the US. No
other country has the necessary combination of capability and outlook. This brings me back to the argument that
the US must put its house in order – economically, physically, socially, and politically – if it is to have the resources
needed to promote order in the world. Everyone should hope that it does: The alternative to a world led
by the US is not a world led by China, Europe, Russia, Japan, India, or any other country, but rather a
world that is not led at all. Such a world would almost certainly be characterized by chronic crisis and
conflict. That would be bad not just for Americans, but for the vast majority of the planet’s inhabitants.
 6 – DA
FAST Act extension is coming – a one year extension is critical to the certainty of
infrastructure projects – but it must be done by the end of September
Wynn 9/8 (Sarah Wynn, Reporter. “Transportation groups warn Congress of billions in canceled
projects.” The Bond Buyer. https://www.bondbuyer.com/news/transportation-groups-warn-congress-
of-billions-in-canceled-projects)

Transportation groups warn billions of dollars worth of future infrastructure projects will be canceled if
Congress doesn't act swiftly to extend current surface transportation funding. In a letter to congressional leaders
published this week, groups urged lawmakers to extend the Fixing America’s Surface Transportation Act, which will expire Sept. 30, by one year.
That date also marks the federal government’s fiscal year-end. “Public agencies continue to face COVID-19 -induced revenue declines,” said the
American Association of State Highway Officials, the American Road & Transportation Builders of America, the Associated General Contractors
of America, and the U.S. Chamber of Commerce in a press release. “As a result, state and local entities already delayed or canceled $8 billion in
surface transportation projects, with more on the horizon absent any clear sign of support from the federal government,” they said. “Timely
action by Congress will tangibly enhance the quality of life for all Americans and jump-start the nation’s economic recovery.” Transportation
groups in the letter also asked for lawmakers to provide for the solvency of the depleted Highway Trust Fund, which will have a $1.36 billion
shortfall by FY 2021. The HTF runs mostly on gas taxes, but also receives money from Treasury general funds under the existing legislation. The
letter follows a report from the Congressional Budget Office last week indicating that the HTF will become insolvent by FY 2021. From 2008
through 2019, HTF’s spending exceeded its revenues by $127 billion, CBO found. Before the pandemic, revenue from gas taxes was estimated
to fall about $195 billion short of supporting current funding levels, the groups wrote in the letter. Groups said a
year-long extension of
the current surface transportation law would bolster market certainty in 2021, making businesses more
likely to hire workers and invest in new equipment. They also asked for increased investment levels of the current law,
though AASHTO Executive Director Jim Tymon said they have not decided on a number yet. They would also want additional flexibility such as
not requiring a state or local match of federal funds and states to be able to use federal funding to pay for employees’ salaries. Extensions of
the current law tend to be shorter than a year, said Caroline Sevier, American Society of Civil Engineers’ director of government relations. “A
one-year extension would alleviate some of that uncertainty that the short term extensions create ,”
Sevier said. A one-year reauthorization could be attached to other bills such as a future economic relief bill.
“Whatever happens, it needs to get done by the end of September when the current surface
transportation program expires,” Tymon said. “If that means that the extension will ride on another vehicle — whether that’s a
continuing resolution or COVID bill, that’s fine with us.” Changing funding levels in the existing surface transportation law could make it more
difficult to pass. Andrew Olmem, a partner at Mayer Brown and former deputy director of the National Economic Council, said a
one-year
reauthorization gives more time for Congress to develop a larger infrastructure bill. "If Congress passes a
clean one-year reauthorization, it would set the stage for Congress to consider a broader, longer-term
reauthorization next year,” Olmem said. Transportation groups reiterated asks for more direct federal funding in the next COVID-19
relief bill. AASHTO has advocated for at least $37 billion through FY 2024 to offset state transportation revenue losses. The American Public
Transportation Association estimated public transit agencies would need $32 billion. Tymon said these
next few weeks are a good
opportunity for Congress to pass an extension among others. “We think this is a good opportunity for
Congress as they’re coming back into town for a couple of weeks to deal with some must-pass pieces of
legislation to address all three of these issues,” Tymon said. “They can do a one-year extension of the surface
transportation program, they can provide that COVID relief that state DOTS (departments of transportation) and transportation
agencies desperately need and they can make sure that the Highway Trust Fund doesn’t run out of money in the near term.”

New CJR measures get bogged down in partisanship and inertia

Binder 6-8-2020, PhD, professor of political science at George Washington University and a senior
fellow at the Brookings Institution (Sarah, “Congress can’t easily pass police reforms,” News Times,
https://www.newstimes.com/opinion/article/Congress-can-t-easily-pass-police-reforms-
15321834.php)//BB

Widespread national outrage over the brutal death of George Floyd at the hands of Minneapolis police has renewed
public demand for Congress to address police misconduct and remedy racial injustice in the United States. New polls
show strong bipartisan support for police reform and sympathy for nonviolent protesters. What’s more, there are green shoots of
bipartisanship for some policing reforms, such as weakening the legal shield that protects police accused of misconduct and curtailing transfers
of excess military equipment to local police forces. Still, reformers
on Capitol Hill face a tough road , especially if and when
media attention to the protests wanes. Differences between and within the parties — coupled with the

underrepresentation of blacks in the Senate — raise barriers to legislative action. Even symbolic
measures that express outrage over Floyd’s death face a heavy slog. Media and public attention will probably wane The
news media have increasingly covered episodes of police misconduct in recent years. But even intense media focus — and public interest —
inevitably fades. Decades ago, economist Anthony Downs called this the “issue attention cycle”: A startling event — like police killing Michael
Brown, Eric Garner or George Floyd — provokes a surge in media attention and public demand for action. But when the difficulty of reform
becomes clear, reporters move on to the next big crisis and public interest wanes. Social issues that don’t directly harm most people are
especially prone to the cycle. That helps explain why coverage of past episodes of police misconduct against racial minorities usually dwindles
and Congress fails to act. True, a Republican-led Congress and President Donald Trump in 2018 enacted significant criminal justice reform that
addressed some racial disparities in sentencing, but that’s probably because conservatives — not street protesters — pushed Republicans to
act. The president could snuff out flickers of bipartisanship House Democrats are likely to move quickly this month; the Republican Senate,
probably not. The 53-member Congressional Black Caucus (CBC) is working (so far largely remotely, given the coronavirus pandemic) on dozens
of measures to address police misconduct, racial inequities in local policing and the deep roots of racial discrimination. Democratic leaders have
yet to decide how they will advance the measures. One option would package the reforms into a single “messaging” bill to signal Democrats’
commitment to addressing these issues. Alternatively, leaders could bring a series of narrower bills to the floor, a tactic that would both force
Republicans to go on record multiple times for or against each reform but also give any wavering swing-district Democrats a chance to break
with more liberal colleagues. But opposition
from Trump would surely compel House Republicans to oppose the
Democrats’ measures, likely leaving the bills dead on arrival in the GOP-led Senate . True, there are glimmers of
GOP support for some measures, notably Sen. Tim Scott’s, R-S.C., push to create and fund a national registry of police misconduct. But absent
support from the president, Senate Majority Leader Mitch McConnell, R-Ky., is less likely to put issues of police and race
on the Senate floor, especially if measures divide Republicans into rival camps. And although some Republicans rebuked the president
for his administration’s use of force against peaceful protesters to clear space for a photo op, few GOP senators appear eager to legislate. Nor is
there currently much electoral pressure on the House or Senate Republican conferences to act: One-quarter of GOP voters report that race
relations will be a major factor in their vote this fall (compared with half of Democrats and a third of independents). Black voices are diminished
in the Senate Racial disparities between the two chambers also raise obstacles. House lawmakers formed the CBC in 1971 with just 13
members. Today, the racial makeup of the House reflects the proportion of blacks in the United States — roughly 13 percent. Lawmakers’ race
and ethnicity matters in how members represent their constituents, as evidenced by the CBC’s swift legislative efforts to address issues raised
by the killing of Floyd and other victims of police brutality. Not so in the Senate. Studies of Senate malapportionment typically emphasize the
overrepresentation of rural interests. And given the whiteness of rural states, black interests are decidedly unrepresented in the Senate. Just
one Republican and two Democrats are black. Racial
disparities in the Senate make it less likely that issues addressing
racial inequities will make it onto the Senate’s agenda , particularly when Republicans control the chamber.

New policies crowd-out existing legislative priorities.

Heitshusen 17 (Valerie, Specialist on Congress and the Legislative Process, “The Legislative Process on
the Senate Floor: An Introduction,” Updated April 10, 2017, Congressional Research Service,
https://www.senate.gov/CRSpubs/5c970bdd-ed33-446c-a646-cda331d7b108.pdf)

The legislative process is laborious and time-consuming, and the time available for Senate floor action
each year is limited. Every day devoted to one bill is a day denied for consideration of other legislation, and
there are not enough days to act on all the bills that Senators and Senate committees wish to see enacted. Naturally, the
time pressures become even greater with the approach of deadlines such as the date for adjournment
and the end of the fiscal year . So, for all but the most important bills, even the threat of a filibuster can provide significant leverage
to Senators. Before a bill reaches the floor or while it is being debated, its supporters often seek ways to accommodate the concerns of
opponents, preferring an amended bill that can be passed without protracted debate to the time, effort, and risks involved in confronting a
filibuster or the threat of one.

Infrastructure key to solve ag shortages

GHI 17 (Global Harvest Initiative,  private-sector policy voice for productivity growth throughout the
agricultural value chain to sustainably meet the demands of a growing world., 5-18-2017, "»
#TimeToBuild America’s Infrastructure for Agricultural Trade," Global Harvest Initiative,
https://www.globalharvestinitiative.org/2017/05/timetobuild-americas-ag-trade-infrastructure/)

Ninety-five percent of the market for U.S. goods is outside the United States . As worldwide
demand for agricultural products increases, U.S. farmers and aggregators must be able to supply food,
feed and fiber to agro-processors and consumers across the nation and overseas. It takes well-
constructed, properly-maintained and interlinked infrastructure to move goods to markets
efficiently, while conserving freshness, quality and safety of food and other agricultural
products. With its large geographic area and long distances from rural production areas to markets, the United States has a high level of
freight activity. In 2014, U.S. food and agricultural exports reached a record $150 billion, supporting more than 1 million jobs.[1] Exp orts
grew by 8 percent on average annually from 2000 to 2014, while imports increased by 7.8
percent. As a result, the U.S. agricultural trade surplus widened to $38.8 billion in 201 4. [2] [Image
Omitted] Modernization and maintenance of this infrastructure and the transportation network is
critical for ensuring smooth functioning agricultural value chains and expanded trade capacity.
Unfortunately, U.S. government infrastructure investment is lagging behind other major agricultural
exporting countries. The U.S. invests less than 2 percent of GDP, the lowest level since World War II. Other countries are investing
more as a percent of GDP: Canada invests 4 percent, Mexico 4.5 percent, Europe 5 percent, India 8 percent and China 9 percent.[3] Aging
U.S. port terminals are not equipped to handle multiple ships holding 8,000 to 14,000 20-foot
containers per vessel, which is common with today’s large ocean-going cargo ships . Outdated and
insufficient infrastructure, poor connectivity to rail and highway networks, and inefficient operations created massive congestion in 2014–2015
at West Coast ports, slowing and at times halting the delivery of cargo. [Image Omitted] Without
immediate investments to
modernize and upgrade these systems and to handle larger ships and the growing amount of
trade, the situation will worsen. Navigable inland waterways have traditionally been the low-cost means of moving agricultural
products within the United States. Barges on the Mississippi River system move cargo from the upper Midwest and center of the country to
southern and eastern states and ports. But the system has become less reliable and more expensive as the locks and dams on the Illinois,
Mississippi and Ohio Rivers, built in the 1930s, have deteriorated. At the same time, roads and railways that allow trucks and railcars to quickly
move agricultural goods are in need of repair and modernization. The American Society of Civil Engineers estimated that U.S. surface
transportation infrastructure faces a funding gap of about $94 billion a year.[4] Solutions must be found to increase investment levels for all
modes of transportation infrastructure. Funding must strategically target not only various parts of the system (road, rail, waterways, locks,
dams, and ports), but also the transportation bottlenecks that occur at intermodal connections, where multiple modes of transport come
together. Infrastructure
improvements will reduce costs across the agricultural value chain, ensure
that farmers and the producers of agricultural products have efficient, affordable access to
global markets, and reduce post-harvest losses of valuable agricultural commodities.

Most likely cause of global conflict

Lehane 17 (Sinéad, research manager for Future Directions International’s Global Food and Water
Crises Research program. Her current research projects include Australia’s food system and water
security in the Tibetan Plateau region. Shaping Conflict in the 21st Century—The Future of Food and
Water Security. February 2, 2017. www.hidropolitikakademi.org/shaping-conflict-in-the-21st-century-
the-future-of-food-and-water-security.html)

In his book, The Coming Famine, Julian Cribb writes that the wars of the 21st century will involve failed states, rebellions, civil
conflict, insurgencies and terrorism. All of these elements will be triggered by competition over
dwindling resources, rather than global conflicts with clearly defined sides. More than 40 countries
experienced civil unrest following the food price crisis in 2008 . The rapid increase in grain prices and
prevailing food insecurity in many states is linked to the outbreak of protests, food riots and the
breakdown of governance. Widespread food insecurity is a driving factor in creating a disaffected
population ripe for rebellion. Given the interconnectivity of food security and political stability, it is
likely food will continue to act as a political stressor on regimes in the Middle East and elsewhere.
Addressing Insecurity Improving food and water security and encouraging resource sharing is critical to creating a stable and

secure global environment. While food and water shortages contribute to a rising cycle of violence,
improving food and water security outcomes can trigger the opposite and reduce the potential for conflict.
With the global population expected to reach 9 billion by 2040, the likelihood of conflict exacerbated by scarcity over the next

century is growing. Conflict is likely to be driven by a number of factors and difficult to address through
diplomacy or military force. Population pressures, changing weather, urbanization, migration, a loss of
arable land and freshwater resources are just some of the multi-layered stressors present in many
states. Future inter-state conflict will move further away from the traditional, clear lines of military
conflict and more towards economic control and influence.
Case
 ADV

Their solvency evidence is predicated off of abolition of policing – plan text says
discriminatory practice – that’s doesn’t solve their offense, is arbitrary & will get
circumvented.

Re-investment is key, without it causes reversal of the aff and saps movement energy
MAX B. SAWICKY, 20 – Max B. Sawicky is an economist and writer in the wilds of Virginia. He has
worked at the Government Accountability Office and the Economic Policy Institute. (“Defund the Police?
Turning a Slogan into Policy” 6/15, Democratic Socialists of America,
https://www.dsausa.org/democratic-left/defund-the-police-turning-a-slogan-into-policy/ //DH

“Defund” need not mean a utopian world without any police, but it does leave open the question of
alternatives. Absent substantive proposals, those who hear the slogan could be forgiven for defaulting to a literal
translation–namely, no police force at all. At least for the time being, this position is a political non-starter
according to polling on the topic. The political vacuum left by such a “non-reformist reform,” also described as
“starving the beast,” will be filled by very reformist reforms . For example, there are demands to cut the budgets
of police departments and reallocate the money to mental health services, youth programs, and community alternatives to
incarceration. There is no doubt that those funds could be used for better purposes, and the implied rebuke to police departments might
encourage better police behavior. But from a reform standpoint, budget cuts are limited and, after the marches peter
out, easily reversed. In the wake of the recession and virus-related expenses, state and local governments are
already under extreme pressure to cut across the board . The prospects for more ample, local public sectors are dim,
absent decisive action by the Congress. Money freed up by cuts to police budgets will be at risk of vanishing into
the ether. The most powerful force weighing on local police funding is the Republican Senate’s refusal to consider emergency aid to state
and local governments.

Turn – predatory policing – police shift to asset forfeiture and fines to recoup funding
decreases
The Economist 20 (The Economist, “Cutting American police budgets might have perverse effects”,
7/7/20, https://www.economist.com/united-states/2020/07/07/cutting-american-police-budgets-
might-have-perverse-effects/micahw)

“Defund” means different things in different circles. But at its core is a demand that police budgets be cut and that money be diverted to other
services to support public safety, such as mental-health counsellors and social workers. But these efforts are complicated by the
intricacies of current funding arrangements and the presence of several forces in the same area . The
federal government provides some resources and states also chip in, but 86% of police spending is
locally financed, by counties and municipalities. Any reform needs to take account of two facts about budgeting: that
police departments have long found alternative sources of funds; and that local-government budgets need to be
reformed, too. First, other funding sources. Civil asset-forfeiture laws, which allow police departments to
confiscate property and keep some or all of the proceeds, are a common but problematic example . Their
use has increased dramatically since they were strengthened in the 1980s to separate drug kingpins from their ill-gotten gains. Often
property can be seized without conviction or even a charge . So there are perverse incentives for police
departments to expand the use of techniques like reverse drug stings (where officers pose as drug suppliers rather
than buyers) and pulling cars over (which often yields traffic fines and sometimes more). Unsurprisingly, like the war on drugs itself,
forfeiture disproportionately affects people of colour. An investigation by the American Civil Liberties Union into forfeitures
in Philadelphia found that 71% of people who had cash seized without an accompanying conviction were
African-American. How the money raised can be used varies from place to place. Federal law forbids police
departments from putting future forfeiture proceeds in their budget plans. Some jurisdictions also ban their use for personnel costs, which
make up two-thirds of police spending. Even so, they fund everything from ammunition for SWAT teams to vehicle
maintenance. And many local restrictions can be circumvented by “equitable sharing” agreements, which
allow local departments to keep a large slice of the proceeds when a federal agency is involved . The sums
can be large—the Institute for Justice, a libertarian law firm, estimates that between 2000 and 2013 Massachusetts law
enforcement took in almost $65m under state forfeiture laws, plus $63.5m from equitable-sharing
arrangements. Because such methods insulate departments from budget cuts, police forces loth to
reform might increase their use. Second, effective reform requires an understanding of how local-
government budgets affect the way police departments do their jobs . Police forces play a crucial role in another
alternative means of revenue generation. Since the 1980s, and especially since the global financial crisis of 2007-09, local governments
have increasingly relied on fines and fees to fund themselves . In some jurisdictions, police can impose fines for
offences as trivial as having mismatched curtains, though the most common are for traffic violations. The police department
of Ferguson, Missouri—where the fatal shooting of Michael Brown by a police officer led to widespread unrest in 2014—was notorious in this
regard. A Department of Justice report in 2015 found that city officials had systematically engaged in “a pattern and practice of constitutional
violations” with the aim of “maximising revenue”. These tactics can wreak havoc on citizens’ lives . Ability to pay is
rarely taken into consideration. A small fine attracts further fees if not paid promptly . Non-payment can
also lead to suspension of driver’s licences, debt traps, exclusion from public housing and other
services, a police record and even jail. Again, areas with larger black and Latino populations are
disproportionately affected. Money from police-issued fines and fees tends to go into a general administrative fund. Reducing
police budgets will limit how much forces get back, but will not alleviate the pressure local
governments put on them to collect the cash. A reluctance to raise taxes has meant that such methods are near-
ubiquitous in local government. Fees and fines are common at every stage of the criminal-justice process. This can have odd and
damaging consequences. A report by the Vera Institute of Justice, a non-profit research organisation, found that 41% of the New
Orleans public defender’s budget came from bail, fines and fees —meaning that it was being funded by
those it was appointed to defend because they could not afford an attorney . And the system can turn
predatory. Between 2011 and 2015 the Wayne County Treasurer foreclosed on one in four properties in Detroit because of overdue
property-tax bills. The city had been inflating the values of properties when assessing them for tax, levying
unaffordable taxes and then foreclosing on owners unable to pay . As well as being unjust, these methods are
inefficient forms of revenue-raising. A report by the Brennan Centre for Justice, a think-tank, looked at the use of criminal-court
fees and fines in ten counties across three states. It found that these jurisdictions spent more than $41 for every $100 collected, compared with
$0.34 that the Internal Revenue Service spends to collect the same amount. One county in New Mexico spent $117 for every $100 recouped. In
addition, localities spend large sums incarcerating people who cannot pay. Fees and fines also make governments less accountable, since they
are not subject to the same political scrutiny as new taxes. Ironically, the very programmes that reformers are demanding
might end up being financed by fines and fees . The role of police in raising revenues for local government also gives forces
leverage. In 2014, NYPD officers engaged in an unofficial “slowdown”, entailing a virtual halt in issuing parking tickets, which generated $10.5m
for the city every week. Police officers claimed that the drop in enforcement was due to fear for their safety after the killing of two NYPD
officers, but it was widely interpreted as a protest over a lack of appreciation from New York’s citizens and its mayor, Bill de Blasio. It ended
only when the then-NYPD commissioner, Willam Bratton, publicly ordered officers back to work. So reformers
have to consider how
police departments will react to budget cuts . “Defunding” advocates hope that budget cuts will end the
“over-policing” of neighbourhoods with high non-white populations . But they may take fewer officers off
the streets than they suppose. Cuts to departmental budgets agreed on in Los Angeles will take the LAPD down
to 9,757 officers from about 10,000; in New York the NYPD, which has roughly 36,000 officers, is merely
cancelling the hiring of an additional 1,163 . These forces are large enough to adjust to cuts. The smaller forces that make up
most of America’s 18,000 law-enforcement agencies have tighter budgets. Any change will involve serious trade-offs . It will have
to be carefully managed. Budget cuts could easily be reversed if enthusiasm for reform wanes because, say, crime spikes and people feel less
safe because there are fewer officers. Ultimately, officers’ behaviour matters more than their numbers . Police departments
should be glad to have a more limited range of duties. Indeed, some have been advocating this for years. But there will inevitably be
institutional resistance, especially from police unions , which suspect that reform will reduce their power. More important
than calls for sweeping reforms may be the hard graft of attending public hearings to scrutinise the budgets of both the police and other public-
service providers, and arguing for tax reforms to reduce governments’ reliance on fees and fines. Reforming
police departments
demands more than starving them of resources. It also requires changing how budgets affect their
incentives. Otherwise, defunding may pave the way for more intrusive policing, as forces seek to recoup
lost revenue.

Turn – private policing – localities will just hire private security instead
Stephen Rushin & Roger Michalski, 20 - Stephen Rushin is an Associate Professor of Law at Loyola
University Chicago School of Law. Roger Michalski is an Associate Professor of Law at the University of
Oklahoma College of Law (“POLICE FUNDING” 1 FLORIDA LAW REVIEW [Vol. 72, SSRN //DH

E. Private Policing Another potential impact of defunding local law enforcement is the shifting of private security
forces into the business of public safety . Again, this shift is unlikely to affect all communities equally. In numerous cases, when
local governments do not adequately invest in public police, wealthy residents fill this gap by investing in
private security services. This leaves poorer residents, and often communities of color, underserved
compared to their wealthier counterparts. Take the example of Oakland, California. Back in 2013, the city was reeling from a 24% increase in
robberies and a 45% increase in armed robberies.216 But in the wake of the recession, the city was financially limited in the resources that it
could allocate to the police department.217 Oakland ultimately lost around 200 officers, resulting in an understaffed police force that lacked
the manpower to respond to all reports of criminal activity.218 In response, a number of wealthier communities in Oakland began investing in
private security forces to patrol their neighborhoods.219 This was not the first time that Oakland turned to private security to supplement an
underfunded local police force. Four years earlier, the Oakland City Council approved the hiring of the private security agency International
Services Inc. to patrol some crime-plagued neighborhoods.220 While Oakland paid an average of $250,000 annually to cover the salary and
benefits for each public police officer, it could afford to hire four private security patrolmen for only $200,000 each year.221 Other cities such
as New Orleans have similarly invested in cheaper private security forces when faced with budget shortfalls.222 This
shift from public
to private policing in the face of underfunding comes with several serious drawbacks. First, the move towards
private policing exacerbates inequality. In the above Oakland example, residents received drastically different public-
safety services based in part on their socioeconomic status. Poorer residents had to rely on an underfunded police
department—one that does not even have the manpower to respond to many types of criminal offenses—as their primary provider of
publicsafety services. Wealthier residents, though, could afford to invest in private security forces to supplement the underfunded local law
enforcement. Second, the move towards private policing transfers everyday public-safety services to private
security officers that are
generally poorly trained and inadequately regulated compared to their public counterparts. As one study found, while some
classes of private police commonly take on many of the same everyday policing responsibilities as public police officers—use of force in self-
defense, detention of suspects, and searches of property—they commonly face minimal licensing requirements and few regulations.223
Perhaps most notably, that study found that even states with robust regulations of private police officers still typically required no more than
forty hours of total training.224 Among all of the hypothesized negative side effects of defunding the police, this may be the most challenging
one to empirically evaluate in the future given the lack of a cross-jurisdictional database on the frequency with which each local community
relies on private security forces. Nevertheless, the theory, accompanied by the anecdotal evidence, is worthy of serious consideration.
The aff ignores history and fails to grapple with the reason for the failures of
Reconstruction
Stephen M. Griffin ’20, Professor in Constitutional Law at Tulane Law School and author of American
Constitutionalism: From Theory to Politics and Long Wars and the Constitution, March 2020, “Optimistic
Originalism and the Reconstruction Amendments”, accessed at=”
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3558673” ”//ghs-ss

Under the influence of the ongoing debate between originalism and nonoriginalism, I suggest we
have lost our sense of what a
constitutional history of Reconstruction would look like. Consider, for example, that legal scholars rarely discuss
why Reconstruction failed African-Americans. 152 If it is mentioned, it is attributed to nonconstitutional factors. 153 The
avoidance of Reconstruction’s failure goes double for optimistic originalists. They are convinced that the
nineteenth-century public meaning of the amendments is on their side. They see no normative gap
between Reconstruction and the meaning attributed to the Fourteenth Amendment in famous
twentieth-century Supreme Court cases such as Brown 154 and Frontiero v. Richardson. 155 Understanding why
Reconstruction failed turns out to be relevant to evaluating the cogency of optimistic originalism. But to do
this, we must approach the question of failure from a legal and constitutional perspective, rather than in political, social or economic terms. 156
Historical inquiry suggests that the
failure of Reconstruction can be traced in part to commitments by
Republicans, both influential and ordinary, to retain certain elements of the antebellum constitutional
order. These commitments were deeply internal to American constitutionalism, not external social and
political factors. I identify and discuss four internal constitutional limits: the doctrine of federalism or “states’
rights”; the preferred legal status of “independent” as opposed to “dependent” citizens; the distinction
between civil, political, and social rights; and the idea of limited government. All are relevant to how
constitutional meaning was determined with respect to our leading questions of racial equality for
African Americans and equal rights for women. All are well documented in the historical literature on
Reconstruction. 157 Yet they are missing from optimistic originalism. This should prompt us to ask some
hard questions about the relationship of public meaning originalism to the historical circumstances of
Reconstruction. How can an interpretive method apparently well-grounded in the American
constitutional tradition fail to recognize some of the most enduring aspects of the nineteenth century
constitutional order? 158

Framers’ intent doesn’t solve---interpreting intent via the text of an amendment alone
presents an incorrect picture of the true “meaning” of the amendment
Stephen M. Griffin ’20, Professor in Constitutional Law at Tulane Law School and author of American
Constitutionalism: From Theory to Politics and Long Wars and the Constitution, March 2020, “Optimistic
Originalism and the Reconstruction Amendments”, accessed at=”
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3558673” ”//ghs-ss

The intuition behind the

sequencing problem is that because public meaning originalism relies on a restricted
set of historical evidence, it cannot give proper weight to the undeniable reality that the Reconstruction
amendments were serial attempts to address a common set of issues arising out of the Civil War. The
moment each amendment becomes law, originalism stops time and takes an “objective” empirical sample of the

existing evidence. That sample is the “meaning” (communicative content)232 of the clause in question. By contrast,
historians who study the views of actual people remain insistent that legal meaning was something of a
moving target during Reconstruction. 233 This suggests the originalist sample may be unrepresentative of the
unrestricted “public” meaning of the provision. This can be illustrated by considering what a restricted originalist sample would yield
with respect to the question of the scope of each amendment when it became law. By contrast, a historical approach consults the

actual public – that is, the multiple perspectives of actual persons over time. This is a better way to
approximate the location of a moving target. The questions of the constitutionality of slavery and
Congress’s power over it were central to the debate over the nature of the Union in the decades prior to the Civil War. This
debate was surely one of the longest and most intricate in American history , although much of the specific cut and thrust
is no longer familiar. 234 I will briefly describe a number of interpretive disputes with respect to slavery and its extended aftermath. In each episode, it turns out
we cannot count on public meaning originalism to guide us reliably toward an understanding of what
legal views were at the time. Instead, we get a misleading account which bypasses the substantial
disagreements that are the background context for any sound understanding of the Reconstruction
amendments. Public meaning originalism appears to produce outlier views from a historical
perspective, views that can be understood as projections of an alternate reality had things been
different.

No modeling.
Law & Versteeg 12—Professor of Comparative Constitutional Law @ Washington University &
Professor of Comparative Constitutional Law @ University of Virginia [David S. Law & Mila Versteeg,
“The Declining Influence of the United States Constitution,” New York University Law Review, Vol. 87,
2012

The appeal of American constitutionalism as a model for other countries appears to be waning in more ways
than one. Scholarly attention has thus far focused on global judicial practice: There is a growing sense, backed by more than
purely anecdotal observation, that foreign courts cite the constitutional jurisprudence of the U.S. Supreme
Court less frequently than before.267 But the behavior of those who draft and revise actual constitutions exhibits a similar pattern.
Our empirical analysis shows that the content of the U.S. Constitution is¶ becoming increasingly atypical by
global standards. Over the last three decades, other countries have become less likely to model the rights-
related provisions of¶ their own constitutions upon those found in the Constitution. Meanwhile, global adoption of key structural
features of the Constitution, such as federalism, presidentialism, and a decentralized model of judicial review, is at best stable
and at worst declining. In sum, rather than leading the way for global ¶ constitutionalism, the U.S. Constitution
appears instead to be losing its appeal as ¶ a model for constitutional drafters elsewhere. The idea of adopting a constitution
may still trace its inspiration to the United States, but the manner in which constitutions are written increasingly does not. If the U.S.
Constitution is indeed losing popularity as a model for other countries, what—or who—is to blame? At this point ,
one can only speculate as
to theactual causes of this decline, but four possible hypotheses suggest themselves: (1) the advent of a superior or more
attractive competitor; (2) a general decline in American hegemony; (3) judicial parochialism; (4) constitutional
obsolescence; and (5) a creed of American exceptionalism. With respect to the first hypothesis, there is little indication that
the U.S. Constitution has been displaced by any specific competitor. Instead, the notion that a particular constitution can serve as a dominant
model for other countries may itself be obsolete. There is an increasingly clear and broad consensus on the types of rights that a constitution
should include, to the point that one can articulate the content of a generic bill of rights with considerable precision.269 Yet it is difficult to
pinpoint a specific constitution—or regional or international human rights instrument—that is clearly the driving force behind this emerging
paradigm. We find only limited evidence that global constitutionalism is following the lead of either newer national constitutions that are often
cited as influential, such as those of Canada and South Africa, or leading international and regional human rights instruments such as the
Universal Declaration of Human Rights and the European Convention on Human Rights. Although Canada in particular does appear to exercise a
quantifiable degree of constitutional influence or leadership, that influence is not uniform and global but more likely reflects the emergence
and evolution of a shared practice of constitutionalism among common law countries.270 Our
findings suggest instead that the
development of global constitutionalism is a polycentric and multipolar ¶ process that is not dominated by any
particular country.271 The result might be likened to a global language of constitutional rights, but one that has been collectively forged rather
than modeled upon a specific constitution. Another possibility is that America’s capacity for constitutional leadership is at
least partly a function of American “soft power ” more generally.272 It is reasonable to suspect that the overall influence
and appeal of the United States and its institutions have a powerful spillover effect into the constitutional arena. The popularity of American
culture, the prestige of American universities, and the efficacy of American diplomacy can all be expected to affect the appeal of American
constitutionalism, and vice versa. All are elements of an overall American brand, and the strength of that brand helps to determine the strength
of each of its elements. Thus, any erosion of the American brand may also diminish the appeal of the Constitution
for reasons that have little or nothing to do with the Constitution itself. Likewise, a decline in American
constitutional influence of the type documented in this Article is potentially indicative of a broader decline in
American soft power. There are also factors specific to American constitutionalism that may be¶ reducing its appeal to foreign
audiences. Critics suggest that the Supreme Court has undermined the global appeal of its own jurisprudence
by failing to acknowledge the relevant intellectual contributions of foreign courts on questions of common
concern,273 and by pursuing interpretive approaches that lack acceptance elsewhere.274 On this view, the Court
may bear some responsibility for the declining influence of not only its own jurisprudence, but also the actual U.S.
Constitution: one might argue that the Court’s approach to constitutional issues has undermined the appeal of
American constitutionalism more generally, to the point that other countries have become unwilling to
look either to American constitutional jurisprudence or to the U.S. Constitution itself for inspiration.275 It
is equally plausible, however, that responsibility for the declining appeal of American constitutionalism lies with
the idiosyncrasies of the Constitution itself rather than the proclivities of the Supreme Court. As the oldest formal
constitution still in force, and one of the most rarely amended constitutions in the world,276 the U.S. Constitution contains
relatively few of the rights that have become popular in recent decades ,277 while some of the provisions that it does
contain may appear increasingly problematic, unnecessary, or even undesirable with the benefit of two hundred years of hindsight.278 It
should therefore come as little surprise if the U.S. Constitution ¶ strikes those in other countries–or, indeed,
members of the U.S. Supreme Court279–as out of date and out of line with global practice .280 Moreover, even if the
Court were committed to interpreting the Constitution in tune with global fashion, it would still lack the
power to update the actual text of the document . Indeed, efforts by the Court to update the Constitution via interpretation
may actually reduce the likelihood of formal amendment by rendering such amendment unnecessary as a practical matter.281 As a result,
there is only so much that the U.S. Supreme Court can do to make the U.S . Constitution an¶ attractive formal
template for other countries . The obsolescence of the Constitution, in turn, may undermine the appeal of
American constitutional jurisprudence: foreign courts have little reason to follow the Supreme Court’s
lead on constitutional issues if the Supreme Court is saddled with the interpretation of an unusual and obsolete
constitution.282 No amount of ingenuity or solicitude for foreign law on the part of the Court can entirely
divert attention from the fact that the Constitution itself is an increasingly atypical document. One way to put
a more positive spin upon the U.S. Constitution’s status as a global outlier is to emphasize its role in articulating and defining what is unique
about American national identity. Many scholars have opined that formal constitutions serve an expressive function as statements of national
identity.283 This view finds little support in our own empirical findings, which suggest instead that constitutions tend to contain relatively
standardized packages of rights.284 Nevertheless, to the extent that constitutions do serve such a function, the distinctiveness of the U.S.
Constitution may simply reflect the uniqueness of America’s national identity. In this vein, various scholars have argued that the U.S.
Constitution lies at the very heart of an “American creed of exceptionalism,” which combines a belief that the United States occupies a unique
position in the world with a commitment to the qualities that set the United States apart from other countries.285 From this perspective, the
Supreme Court’s reluctance to make use of foreign and international law in constitutional cases amounts not to parochialism, but rather to
respect for the exceptional character of the nation and its constitution.286 Unfortunately, it is clear that the reasons for the declining influence
of American constitutionalism cannot be reduced to anything as simple or attractive as a longstanding American creed of exceptionalism.
Historically, American exceptionalism has not prevented other countries from following the example set by American constitutionalism. The
global turn away from the American model is a relatively recent development that postdates the Cold War. If the U.S. Constitution does in fact
capture something profoundly unique about the United States, it has surely been doing so for longer than the last thirty years. A complete
explanation of the declining influence of American constitutionalism in other countries must instead be sought in more recent history, such as
the wave of constitution-making that followed the end of the Cold War.287 During this period, America’s newfound position as lone
superpower might have been expected to create opportunities for the spread of American constitutionalism. But this did not come to pass.
Once global constitutionalism is understood as the product of a polycentric evolutionary process, it is
not difficult to see why the U.S. Constitution is playing an increasingly peripheral role in that process. No
evolutionary process favors a specimen that is frozen in time. At least some of the responsibility for the declining global appeal of American
constitutionalism lies not with the Supreme Court, or with a broader penchant for exceptionalism, but rather with the static character of the
Constitution itself. If
the United States were to revise the Bill of Rights today —with the benefit of over two centuries of
experience, and in a manner that addresses contemporary challenges while remaining faithful to the nation’s best traditions— there is no
guarantee that other countries would follow its lead . But the world would surely pay close attention. Pg. 78-83
 Framing
Weigh impacts using expected value—magnitude times probability is possible for
policy makers and balances thinking which solves errors.
Harris & Bender 17 (John, Politico editor-in-chief, & Bryan, Politico national security editor. "Bill
Perry Is Terrified. Why Aren't You?". Interview with Bill Perry, mathematician, engineer, businessman
and former Secretary of Defense. Currently the Michael and Barbara Berberian Professor (emeritus) at
Stanford University, with a joint appointment at the Freeman Spogli Institute for International Studies
and the School of Engineering. He is also a senior fellow at Stanford University's Hoover Institution. He
serves as director of the Preventive Defense Project. He is an expert in U.S. foreign policy, national
security and arms control. In 2013 he founded the William J Perry Project
(http://www.wjperryproject.org/), a non-profit effort to educate the public on the current dangers of
nuclear weapons. www.politico.com/magazine/story/2017/01/william-perry-nuclear-weapons-
proliferation-214604)

Perry wishes more people were familiar with the concept of “expected value.” That is a statistical way
of understanding events of very large magnitude that have a low probability . The large magnitude
event could be something good, like winning a lottery ticket. Or it could be something bad, like a nuclear
bomb exploding. Because the odds of winning the lottery are so low, the rational thing is to save your
money and not buy the ticket. As for a nuclear explosion, by Perry’s lights, the consequences are so
grave that the rational thing would be for people in the United States and everywhere to be in a state of
peak alarm about their vulnerability, and for political debate to be dominated by discussion of how to
reduce the risk. And just how high is the risk? The answer of course is ultimately unknowable. Perry’s
point, though, is that it’s a hell of a lot higher than you think. Perry invites his listeners to consider all the
various scenarios that might lead to a nuclear event. “Mathematically speaking, you add those all
together in one year it is still just a possibility, not a probability,” he reckons. “But then you go out ten,
twenty years and each time this possibility repeats itself, and then it starts to become a probability. How
much time we have to get those possibility numbers lower, I don’t know. But sooner or later the odds
are going to get us, I am afraid.” *** Almost uniquely among living Americans, Bill Perry has actually faced down the prospect of nuclear war
before—twice. In the fall of 1962, Bill Perry was 35, father of five young children, living in the Bay Area and serving as director of Sylvania’s Electronic Defense
Laboratories—driving his station wagon to recitals in between studying missile trajectories and the radius of nuclear detonations. Where he resided was not then
called Silicon Valley, but the exuberance and spirit of creative possibility we now associate with the region was already evident. The giants then were Bill Hewlett
and David Packard, men Perry deeply admired and wished to emulate in his own business career. The innovation engine at that time, however, was not consumer
technology; it was the government’s appetite for advantage in a mortal struggle against a powerful Soviet foe. Perry was known as a star in the highly complex field
of weapons surveillance and interpretation. So it was not a surprise, one bright October day, for Perry to get a call from Albert “Bud” Wheelon, a friend at the
Central Intelligence Agency. Wheelon said he wanted Perry in Washington for a consultation. Perry said he’d juggle his schedule and be there the next week. “No,”
Wheelon responded. “I need to see you right away.” Perry caught the red-eye from San Francisco, and went straight to the CIA, where he was handed photographs
whose meaning was instantly clear to him. They were of Soviet missiles stationed in Cuba. For the next couple weeks, Perry would stay up past midnight each
evening poring over the latest reconnaissance photos and help write the analysis that senior officials would present the next morning to President Kennedy. Perry
experienced the crisis partly as ordinary citizen, hearing Kennedy on television draw an unambiguous line against Soviet missiles in this hemisphere and promising
that any attack would be met with “a full retaliatory response.” But he possessed context, about the capabilities of weapons and the daily state of play in the crisis,
that gave him a vantage point superior to that of all but perhaps a few dozen people. “I was part of a small team—six or eight people,” he recounted of those days
54 years earlier. “Half of them technical experts, half of them intelligence analysts, or photo interpreters. It was a minor role but I was seeing all the information
coming in. I thought every day when I went back to the hotel it was the last day of my life because I knew exactly what nuclear weapons could do. I knew it was not
just a lot of people getting killed. It was the end of civilization and I thought it was about to happen.” It was years later that Perry, like other more senior participants
in the crisis, learned how right that appraisal was. Nuclear bombs weren’t only heading toward Cuba on Soviet ships, as Kennedy believed and announced to
Americans at the time. Some of them were already there, and local commanders had been given authority to use them if Americans launched a preemptive raid on
Cuba, as Kennedy was being urged, goaded even, by Air Force Gen. Curtis LeMay and other military commanders. At the same time, Soviet submarines were armed
and one commander had been on the verge of launching them until other officers on the vessel talked him out of it. Either event would have in turn sent U.S.
missiles flying. The Cuban Missile Crisis recounting is one of the dramatic peaks in “My Journey on the Nuclear Brink,” the memoir Perry published last fall. It is a
book laced with other close calls—like November 9, 1979, when Perry was awakened in the middle of the night by a watch officer at the North American Aerospace
and Defense Command (NORAD) reporting that his computers showed 200 Soviet missiles in flight toward the United States. For a frozen moment, Perry thought:
This is it—This is how it ends. The watch officer soon set him at ease. It was a computer error, and he was calling to see whether Perry, the technology expert, had
any explanation. It took a couple days to discover the low-tech answer: Someone had carelessly left a crisis-simulation training tape in the computer. All was well.
But what if this blunder had happened in the middle of a real crisis, with leaders in Washington and Moscow already on high alert? The inescapable conclusion was
the same as it was in 1962: The
world skirting nuclear Armageddon as much by good luck as by skilled crisis
management. Perry is part of a distinct cohort in American history, one that didn’t come home with the large-living ethos of the World War II generation,
but took responsibility for cleaning up the world that the war bequeathed. He was a 14-year-old in Butler, Pennsylvania when he heard the news of the Pearl Harbor
attack in a friend’s living room, and had the disappointed realization that the war might be over by the time he was old enough to fight in it. That turned out to be
true—he was just shy of 18 at war’s end—a fact that places Perry in what demographers have called the “Silent Generation,” too young for one war but already
middle-aged by the time college campuses erupted over Vietnam. Like many in his generation, Perry was not so much silent as deeply dutiful, with an understated
style that served as a genial, dry-witted exterior to a life in which success was defined by how faithfully one met his responsibilities. Perry said he became aware,
first gradually and over time profoundly, of the surreal contradictions of his professional life. His work—first at Sylvania and then at ESL, a highly successful defense
contracting firm he co-founded in 1963—was relentlessly logical, analyzing Soviet threats and intentions and coming up with rational responses to deter them. But
each rational move was part of a supremely irrational dynamic—“mutually assured destruction”—that placed the threat of massive casualties at the heart of
America’s basic strategic thinking. It was the kind of framework in which policymakers could accept that a mere 25 million people dead was good news. Also the
kind that in one year alone led the United States to produce 8,000 nuclear bombs. By the end, the Cold War left the planet with about 70,000 bombs (a total that is
now down to about 15,500). “I think probably everybody who was involved in nuclear weapons in those days would see the two sides of it,” Perry recalls, “the logic
of deterrence and the madness of deterrence, and there was no mistake, I think, that the acronym was MAD.” *** Perry has been at the forefront of a movement
that he considers the sane and only alternative, and he has joined forces with other leading Cold Warriors who in another era would likely have derided their vision
as naïve. In January 2007, he was a co-author of a remarkable commentary that ran on the op-ed page of the Wall Street Journal. It was signed also by two former
secretaries of state, George Schulz and Henry Kissinger and by Sam Nunn, a former chairman of the Senate Armed Services Committee—all leading military hawks
and foreign policy realists who came together to argue for something radical: that the
goal of U.S. policy should be not merely the reduction and
control of atomic arms, it should be the ultimate elimination of all nuclear weapons . This sounded like gauzy utopianism, especially
bizarre coming from supremely pragmatic men. But Perry and the others always made clear they were describing a long-term ideal, one that would only be achieved
through a series of more incremental steps. The vision was stirring enough that it was endorsed by President Obama in his opening weeks in office, in a March 2009
address in Prague. In retrospect, Obama’s speech may have been the high point for the vision of abolition. “A huge amount of progress was made,” recalled Shultz,
now 93. “Now
it is going in the other direction.” “We have less danger of an all-out war with Russia,” in Nunn’s view. “But we have
more danger of some type of accident, miscalculation, cyber interference, a terrorist group getting a
nuclear weapon. It requires a lot more attention than world leaders are giving it. ” Perry’s goal now is much more
defensive than it was just a few years ago—halting what has become inexorable momentum toward reviving Cold War assumptions about the central role of nukes
in national security. More recently he’s added yet another recruit to his cause: California Governor Jerry Brown. Brown, now 78, met Perry a year ago, after deciding
that he wanted to devote his remaining time in public service mainly to what he sees as civilization’s two existential issues, climate change and nuclear weapons.
Brown said he became fixated on spreading Perry’s message after reading his memoir: He recently gave a copy to President Obama and is trying to bend the ear of
others with influence in Washington. If Bill Perry has a gift for understatement, Brown has a gift for the theatrical. In an interview at the governor’s mansion in
Sacramento, he wonders why everyone is not paying attention to his new friend and his warnings for mankind. “He is at the brink! At the brink! Not WAS at the
brink—IS at the brink,” Brown exclaimed. “But no one else is.” A California governor can have more influence, at least indirectly, than one might think, due to the
state’s outsized role in policy debates and the fact that the University of California’s Board of Regents helps manage some of the nation’s top weapons laboratories,
which study and design nuclear weapons. Brown, who was a vocal critic in the 1980s of what he called America's "nuclear addiction," reviewed Perry's recent
memoir in the New York Review of Books, and said he is determined to help his new friend spread his message. “Everybody is, 'we are not at the brink,' and we have
this guy Perry who says we are. It is the thesis that is being ignored." Even if more influential people wake up to Perry’s message—a nuclear event is more likely and
will be more terrible than you realize—a hard questions remains: Now what? This is where Perry’s pragmatism comes back into play. The smartest move, he thinks,
is to eliminate the riskiest part of the system. If we can’t eliminate all nukes, Perry argues, we could at least eliminate one leg of the so-called nuclear triad,
intercontinental ballistic missiles. These are especially prone to an accidental nuclear war, if they are launched by accident or due to miscalculation by a leader
operating with only minutes to spare. Nuclear weapons carried by submarines beneath the sea or aboard bomber planes, he argues, are logically more than enough
to deter Russia. The problem, he knows, is that logic is not necessarily the prevailing force in political debates. Psychology is, and this seems to be dictating not
merely that we deter a Russian military force that is modernizing its weapons but that we have a force that is self-evidently superior to them. It is an argument that
strikes Perry as drearily familiar to the old days. Which leads him the conclusion that the only long-term way out is to persuade a
younger generation to make a different choice. His granddaughter, Lisa Perry, is precisely in the cohort he needs to reach. At first she had
some uncomfortable news for her grandfather: Not many in her generation thought much about the issue . “The more I learned

from him about nuclear weapons the more concerned I was that my generation had this massive and
dangerous blind spot in our understanding of the world,” she said in an interview. “Nuclear weapons are
the biggest public health issue I can think of .” But she has not lost hope that their efforts can make a difference, and today she has put her
graduate studies in public health on hold to work full time for the Perry Project as its social media and web manager. “ It can be easy to get

discouraged about being able to do anything to change our course,” she said. “But the good news is that
nuclear weapons are actually something that we as humans can control...but first we need to start the
conversation.” It was with her help that Perry went on Reddit to field questions ranging from how his PhD in mathematics prepared him to what young
people need to understand. “As a 90s baby I never lived in the Cold War era,” wrote one participant, with the Reddit username BobinForApples. “What is one thing
today's generations will never understand about life during the Cold War?” Perry’s answered, as SecDef19: “Because you were born
in the 1990s, you did
not experience the daily terror of ‘duck and cover’ drills as my children did. Therefore the appropriate fear of nuclear weapons is not

part of your heritage, but the danger is just as real now as it was then. It will be up to your generation to
develop the policies to deal with the deadly nuclear legacy that is still very much with us. ” For the former defense
secretary, the task now is to finally—belatedly—prove Einstein wrong. The physicist said in 1946: “The unleashed power of the atom has changed everything save
our modes of thinking and we thus drift toward unparalleled catastrophe.” In Perry’s view the only way to avoid it is by directly
contemplating catastrophe—and doing so face to face with the world’s largest nuclear power, Russia, as he recently did in a forum in Luxembourg
with several like-minded Russians he says are brave enough to speak out about nuclear dangers in the era of Putin. “ We could solve it,” he said.

“When you’re a prophet of doom, what keeps you going is not just prophesizing doom but saying there
are things we do to avoid that doom. That’s where the optimism is. ”

Prioritizing anything else is tautological

Greene 10 (JD Greene, Psychology Prof @ Harvard [The Secret Joke of Kant’s Soul, Moral Psychology:
Historical and Contemporary Readings. p. 359-371)

What turn-of-the-millennium science is telling us is that human moral judgment is not a pristine rational enterprise—that
our moral judgments are driven by a hodgepodge of emotional dispositions, which themselves were shaped by a hodgepodge of evolutionary
forces, both biological and cultural. Because of this, it is exceedingly unlikely that there is any ratio¬nally coherent normative moral theory that
can accommodate our moral intuitions. Moreover, anyone who claims to have such a theory, or even part of one, almost certainly does not.
Instead, what that person probably has is a moral rationalization. It seems then that we have somehow crossed the infamous "is" "ought"
divide.14 How did this happen? Didn't Hume (1978) and Moore (1903) warn us against trying to derive an "ought" from an "is?" How did we go
from descriptive scientific theories concerning moral psychology to skepti¬cism about a whole class of normative moral theories? The answer is
that we did not, as Hume and Moore anticipated, attempt to derive an "ought" from an "is." That is, our method has been inductive rather than
deductive. We have inferred on the basis of the available evidence that the phenom¬enon of rationalist deontological philosophy is best
explained as a ratio¬nalization of evolved emotional intuition (Harman, 1977). Missing the Deontological Point I suspect that rationalist
deontologists will remain unmoved by the argu¬ments presented here. Instead, I suspect, they will insist that I have simply misunderstood
what Kant and like-minded deontologists are all about. Deontology, they
will say, isn't about this intuition or that intuition. It's not defined
by its normative differences with consequentialism. Rather, deontology is about taking humanity seriously . Above all else, it's
about respect for persons. It's about treating others as fellow rational creatures rather than as mere objects, about
acting for reasons that rational beings can share; and so on (Korsgaard, 1996a, 1996b). This is, no doubt, how many deontologists see
deontology. However, this insider's view, as I have suggested, may be misleading. The problem, more specifically, is that it defines
deontology in terms of values that are not distinctively deontological, though they may appear to be from the inside.
Consider the following analogy with religion. When one asks a religious person to explain the essence of his religion, one often gets an answer
like this: "It's about love, really. It's about looking out for other people, looking beyond oneself. It's about community, being part of some¬thing
larger than oneself." This sort of answer accurately captures the phenomenology of many people's religion, but it is nevertheless inade¬quate
for distinguishing religion from other things. This is because many, if not most, nonreligious people aspire to love deeply, look out for other
people, avoid self-absorption, have a sense of a community, and be con¬nected to things larger than themselves. In other words, secular
humanists and atheists can assent to most of what many religious people think reli¬gion is all about. From a secular humanist's point of view, in
contrast, what is distinctive about religion is its commitment to the existence of super¬natural entities as well as formal religious institutions
and doctrines. And they are right. These things really do distinguish religious from nonreli- gious practices, although they may appear to be
secondary to many people operating from within a religious point of view. In the same way, I believe that most of the standard deontological/
Kantian self-characterizations fail to distinguish deontology from other approaches to ethics. (See also Kagan, 1997, pp. 70-78, on the difficulty
of defining deontology.) It seems to me that consequentialists, as much as anyone else, have respect for persons, are against treating people as
mere objects, wish to act for reasons that rational creatures can share, etc. A
consequentialist respects other persons and
refrains from treating them as mere objects by counting every person's well-being in the decision-
making process. Likewise, a consequentialist attempts to act according to reasons that rational creatures can share by acting according to
principles that give equal weight to everyone's interests, i.e., that are impartial. This is not to say that consequentialists and deontologists do
not differ. They do. It's just that the real differences may not be what deontologists often take them to be. What, then, distinguishes
deontology from other kinds of moral thought? A good strategy for answering this question is to start with concrete disagreements between
deontologists and others (such as consequential- ists) and then work backward in search of deeper principles. This is what I have attempted to
do with the trolley and footbridge cases and other instances in which deontologists and consequentialists disagree. If you ask a
deontologically minded person why it is wrong to push someone in front of speeding trolley in order to save five others, you
will get characteristi¬cally deontological answers. Some will be tautological: "Because it's murder!" Others will be
more sophisticated: "The ends don't justify the means." "You have to respect people's rights." As we know, these
answers don't really explain anything, because if you give the same people (on different occasions) the trolley case or the loop case
(see earlier discussion), they will make the opposite judgment, even though their initial explana¬tion concerning the footbridge case applies
equally well to one or both of these cases. Talk about rights, respect for persons, and reasons we can share are natural attempts to explain, in
"cognitive" terms, what we feel when we find ourselves having emotionally driven intuitions that are at odds with the cold calculus of
consequentialism. Although these explanations are inevitably incomplete, there seems to be "something deeply right" about them
because they give voice to powerful moral emotions. However, as with many religious people's accounts of what is essential to religion, they
don't really explain what is distinctive about the philosophy in question.

That means you put existential risks first.

Torres 17 Phil Torres, American author and scholar specializing in existential risk, Neuroscience MA @
Brandeis University, Philosophy BA @ Maryland, Graduate Student @ Harvard Philosphy. Book is
endorsed by Peter Singer, renowned philosopher, Rachael Bronson, Director of the Bulletin of Atomist
Scientists, and Martin Rees, leading scientific figure in the UK as well as the Astronomer Royal. [Morality,
Foresight, and Human Flourishing: An Introduction to Existential Risks, Pitchstone Publishing, Print]//BPS

1.4 Why Care about Existential Risks? Nothing is too wonderful to be true, if it be consistent with the laws of nature. –Michael
Faraday The global population today is 7.5 billion. Lets say that a pandemic spreads across Europe, killing 100 million people. How bad would
this be? Most would agree that it would be quite devastating. Now lets say that 100 million more people die from the disease. How bad would
this be? It seems like this second wave of deaths would be just as bad as the first: 200 million people dying is twice as horrible as 100 million
people dying. Now imagine this continuing 74 times (where 74 x 100 million = 7.4 billion), with each instance of 100 million deaths being an
equivalently bad moral tragedy. The global popula- tion would then be only 100 million people. Again, we can ask: If this last group were to die
from the pandemic, how bad would it be? Would it be just as bad as each past instance of 100 million people dy- ing—or might it be worse?
The philosopher Derek Parfit, echoing Sagan's idea discussed in the preface of this book, argues that the last 100 million people dying would not
only be worse than all the other instances of 100 million people dying, but profoundly worse. The reason is that, as Parfit writes, Civilization
began only a few thousand years ago. If we do not destroy mankind, these few thousand years may be only a tiny fraction of the whole of
civilized human history. The difference between [nearly all and actually all people dying] may thus be the difference between this tiny fraction
and all of the rest of this history. If we compare this possible history to a day, what has occurred so far is only a fraction of a second. We can
add to Parfit's thesis an alternative scenario, given the second disjunct of our definition of existential risks: consider a world in which there are
no incidents of mass dying but some unfortunate event causes civilization to sink into a permanent state of technologi¬cal deprivation. The
result would be that we fail to reach technological maturity and exploit our cosmic endowment ofnegentropy (where "negentropy" is a
portmanteau of "negative entropy," i.e., the stuff that enables living systems to create and maintain order in the universe).58 From the
transhumanist point of view, the result would be, all things considered, no less tragic than if humanity were to go extinct.39 A key idea here is
that the potential value
of our posthuman future could be unimaginably huge. For example, one estimate suggests that a
total of "a hundred thousand billion billion billion"—that is, a 1 followed by 32 zeros, or
100,000,000,000,000,000,000,000,000,000, 000—humans could someday populate the universe.60 These
people might colonize a large fraction of our future light cone, use enhancement technologies to radically augment their cognitive and moral
capacities, live indefinitely long lives through rejuvenation therapies, upload their minds to achieve a kind of digital immortality, and perhaps
even convert entire planets into supercomputers that run simulations in which conscious beings live happy, worthwhile lives (there¬by
increasing the total amount of well-being in the cosmos, which some ethical theories prescribe).61 As Parfit puts the point, "Life can be
wonderful as well as terrible, and we shall
increasingly have the power to make life good. Since human history may
be only just beginning, we can expect that future humans, or supra-humans, may achieve some great goods that
we cannot now even imagine." 62 In a phrase, the expected value of the future is astronomically high given the potential number
and nature of our posthuman descendants. Lets call this the astronomical value thesis.63 This leads Bostrom to argue that "the loss in expected
value resulting from an existential catastrophe is so enormous that the objective of reducing existential risks should be a dominant
consideration whenever we act out of an impersonal concern for humankind as a whole." In other words, we
should behave
according to the following "rule of thumb for such impersonal moral action," dubbed Maxipok: Maximize the
probability of an "OK outcome," where an OK outcome is any outcome that avoids existential
catastrophe.64 One can think of our predicament as follows: the present mo- ment—a century that the Long Now Foundation writes as
"02000" to encourage "deep time" thinking—is a narrow foundation upon which an extremely tall skyscraper rests.65 The entire future of
humanity re- sides in this skyscraper, towering above us, stretching far beyond the clouds. If this foundation were to fail, the whole building
would come crashing to the ground. Since this would be astronomically bad ac- cording to the above thesis, it behooves us to do everything
possible to ensure that the foundation remains intact. The future depends cru- cially on the decisions we make today, just as the present
depends on the decisions made by our ancestors, and this is a moral burden that everyone should feel pressing down upon their shoulders.66
While one might accept that every human perishing tomorrow would be an unthinkable catastrophe, one might also object that there is no
particular reason to value the lives of people who do not yet exist. Why should current people care about generations that are born 100,
10,000, or even 100 million years from today? What obligations do we really have to future people in some far-off, exotic futureland? Many
moral philosophers respond that when one exists should be irrelevant to that person's moral status. By analogy,
where one exists should be—it appears correct to assert—irrelevant to whether or not one matters ethically: e.g., the suffering of a child in
Johannesburg is just as bad as the suffering of a child in Copenhagen, Beijing, or Honolulu. And since modern physics reveals that space and
time form a unified four- dimensional continuum (called "spacetime"), there
don't appear to be any fundamental reasons for
privileging one dimension over another, meaning that "affecting a temporally distant individual in the
future is similar to affecting a spatially distant individual" right now.67 If one rejects "space discounting"
(or devaluing the lives of people who are spatially distant from us), one should also reject "time
discounting" (or devaluing the lives of people who are temporally distant from us) . Furthermore, as the risk
expert Jason Matheny observes, time discounting future lives yields conclusions that "few of us would accept as
being ethical."68 For example, if one were to discount future "lives at a 5% annual rate, a life today would
have greater intrinsic value than a billion lives 400 years hence"—i.e., a single person dying this evening
would constitute a worse moral tragedy than a global catastrophe that kills 1 billion people in four
centuries.69 Similarly, a 10 percent annual discount rate would entail that one person today is equal in value to an unfathomable 4.96 x 1020
people 500 years from now.70 This line of reasoning appears to be not only misguided but outrageously wrongheaded, from which it follows
that discounting hu¬man lives is deeply problematic.71 The futurist WendellBell offers seven additional reasons that
contemporary generations have obligations to future generations. These are: (1) A concern for present people
implies a concern for future people. There is no "clear demarcation . . . between one generation and the
next," meaning that "a concern for people living now carries us a considerable way into caring about future
people." Imagine that you have children who have children. You care about your grandchildren, who will one day care about their own
grandchil¬dren. The result is an unbroken chain of caring that extends indefinitely into the future . (2) Thought
experiments in which choosers do not know to which gen¬eration they belong rationally imply a concern for both present and future people. If
one knows nothing about which generation one will live and is asked "to choose how each generation ought to behave, consuming now or
saving and preparing for the future,' rational choosers will "allow for the well-being of both present and future generations." ( This thought
experiment borrows from John Rawls’s idea of the "original position," in which people select principles upon
which society will be based without knowing anything about their gender, ethnicity, social status, and so
on.72) It follows that "we ought to care about the well-being of future people because that is what rational people would choose to do if they
did not know what generation they were in." (3) Regarding the natural resources of the earth, present generations have no right to use to the
point of depletion or to poison what they did not create. Since natural resources were not produced by any human, "everyone has a right to
their use, including members of future generations." Therefore, "the members of the present generation have an obligation to future
generations of leaving the earth's life-sustaining capacities in as good a shape as they found them or of providing compensating benefits of life-
sustaining worth equal to the damage that they do." (4) Past
generations left many of the public goods that they created not
only to the present generation but to future generations as well. This suggests that "no generation has the right to use up ,
totally consume, or destroy the existing human heritage , whether material, social, or cultural, so that it is no longer
available to future generations." (5) Humble ignorance ought to lead present generations to act with prudence
toward the well-being of future generations . We are only beginning to understand the universe, and we have only the vagu¬est
sense of "what the human destiny is or might become." Thus, "weighted with such ignorance, the present generation ought to act prudently so
as not to threaten the future survival and well- being of the human species." (6) There
is a prima facie obligation of present
generations to ensure that important business is not left unfinished. The term "important business" here refers to "human
accomplishments, especially exceptional ones in science, art, music, literature, and technology, and also
human inventions and achievements of organizational arrangements, political, economic, social, and
cultural institutions, and moral philosophy ." Both this and the previous point An Emerging Field • 45 clearly connect to the
transhumanist goal of reaching new and better modes of being. (7) The present generation's caring and sacrificing for future
generations benefits not only future generations but also itself. One way to give life meaning is through engagement and altruistic
sacrifice. In other words, "it is through being concerned for other people, both living and as yet unborn, that a person achieves self-enrich-
ment and personal satisfaction." As Bell adds, "Genuinely caring about future generations and taking effective action to
benefit their well-being are objective and rational answers to the contem¬plation of one's own death and the feelings of futility
and despair it produces. Thus, we can strengthen ourselves by creating a community of hope."73

Extinction is likely, and it’s better off safe than sorry.

Torres 17 Phil Torres, American author and scholar specializing in existential risk, Neuroscience MA @
Brandeis University, Philosophy BA @ Maryland, Graduate Student @ Harvard Philosphy. Book is
endorsed by Peter Singer, renowned philosopher, Rachael Bronson, Director of the Bulletin of Atomist
Scientists, and Martin Rees, leading scientific figure in the UK as well as the Astronomer Royal. [Morality,
Foresight, and Human Flourishing: An Introduction to Existential Risks, Pitchstone Publishing, Print]//BPS

7.1 Doom Soon? Without the possibility of a future, there is nothing left but despair. Thus, if we give up on the future, we
give up on ourselves. -Wendell Bell' Let us recap the most general observations and theses of the book so far. They are: The
number of existential risk scenarios has increased significantly since the middle of last century, and the Doomsday
Clock has steadily inched closer to midnight—phenomena that are, at the very least, consistent with humanity approaching a
Great Filter. Furthermore, there are reasons for expecting certain agential risks to become more dangerous in the coming decades, and the
window for meaningful action on climate change and the Anthropocene ex¬tinction is rapidly sliding shut.2 Making matters worse, the macro-
strategies explored in the previous chapter do not offer the sort of reassurance that one should hope for: many have notable downsides while
others, such as aquatic bunkers, are unlikely to be taken seri¬ously by politicians. We have no track record of surviving the threats before us,
and the Great Silence is a constant and noisy reminder that, at least ostensibly, life almost never makes it beyond our current state of
technological development. Taken together, these data suggest that our
prior probability estimates of an existential
catastrophe ought to be disturbingly high. As Bostrom expounds in his original 2002 article on existential risks, The balance of
evidence is such that it would appear unreason¬able not to assign a substantial probability to the hypothesis that an existential disaster will do
us in. My subjective opinion is that setting this probability lower than 25% would be mis¬guided, and the best estimate may be considerably
higher.3 This speculation aligns with the other estimates of section 1.1, which, readers may recall, place the probability of an existential
di¬saster occurring this century between 19 and 50 percent.4 It also com¬ports with Stephen Hawking's recent remarks that we
live in the
most perilous period of human history, ever. In his words, Now, more than at any time in our history, our species needs to
work together. We face awesome environmental challenges: cli¬mate change, food production, overpopulation, the decimation of other
species, epidemic disease, acidification of the oceans. Together, they are a reminder that we are at the most danger¬ous moment in the
development of humanity. We now have the technology to destroy the planet on which we live, but have not yet developed the ability to
escape it.5 Some philosophers, though, believe that human extinction is even more likely than empirical analyses
indicate. Enter the doomsday ar-gument, which has been most vigorously defended and elaborated by John Leslie.6 This attempts to show,
through a priori reasoning, that we are systematically underestimating the probability of annihilation . To be clear,
the conclusion is not that doom is imminent but rather that we should inflate our prior estimates of doom, whatever they
happen to be. The idea can be understood through a simple analogy. Imagine two buckets filled with balls. Bucket A has 10 balls numbered 1
through 10, whereas bucket B has 1,000 balls numbered 1 through 1,000. Your job is to pick a random ball from one of the buckets and then
guess which bucket it came from, A or B.7 So you reach in and grab a ball with the number 8. Given that your chances of pulling out an 8 from
bucket A are significantly higher than from bucket B (which contains far more possibilities), you guess that the ball is from Concluding Thoughts
• 22\ bucket A—and you are almost certainly right. With this example in mind, consider two hypotheses about how many humans will ever
come to exist in the universe. Hypothesis A says that this number is 100 billion, whereas hypothesis B specifies it as 100 trillion. Now, picture
yourself as a randomly selected person from all the people who will ever be born. We know as a matter of fact that your number in this series is
about 60 billion, since this is roughly the number of people who have previously lived on Earth- in other words, if you were a ball pulled from a
bucket, your number would say "60 billion." So, given this information, which hypothesis should you favor, A or B? The best answer appears to
be A, despite it being considerably less optimistic than B. This is the essence of the doomsday argument: annihilation is more probable than one
would otherwise think. The crucial premise of this argument is that "one should reason as if one were a random sample from the set of all
observers in one's reference class," where the relevant reference class here is the total population of humans across both space and time. This
is called the "self-sampling assumption" (SSA), and, to be sure, not all philoso¬phers accept it.8 Some prefer the "self-indication assumption"
(SLA.), which states that "given the fact that you exist, you should (other things [being] equal) favor hypotheses according to which many
ob¬servers exist over hypotheses on which few observers exist."9 In other words, if
there are two possible worlds, X and Y,
where X contains 10 billion people and Y contains 100 trillion, you should reason as if you are in Y rather
than X. While SIA essentially makes the Doomsday Argument "go away," it carries a doomsday implication of its own.10 The reason is this: if
we should reason as if we exist in a world that in¬cludes many observers like us, then we should expect the Great Filter to be in front of rather
than behind us, since a Great Filter in our past would imply few observers at our stage of development." It follows that, as Robin Hanson puts it,
those who accept SIA should "drasti¬cally increase" their estimates of an existential catastrophe.12 The assumptions of SSA and SIA, one could
argue, are the best ideas that philosophers have devised about how to generate self-locat¬ing beliefs.13 Yet both suggest that Ultimate Harm
lurks in our future, perhaps not too far away. This should give us extra pause when think¬ing about what dangers may dot the road ahead.14
 2nc
Links to politics – still has Congress and Trump act, which is the basis of our link
argument on the DA. The Court has to act before congress to get shielding –
simultaneous action doesn’t solve.
Garrett and Stutz, Dallas Morning News, ‘5 (Robert T. Garrett and Terrence Stutz, Dallas Morning
News, “School finance now up to court Justices to decide if overhaul needed after bills fail in Legislature”
lexis)
That could foreshadow the court's response to a chief argument by state attorneys – that the court should butt out and leave school finance to
the Legislature. A court finding against the state would put the ball back in the hands of lawmakers, who have tended
to put off
dealing with problems in schools, prisons and mental health facilities until state or federal judges forced them to act. "It's the
classic political response to problems they don't want to deal with ," said Maurice Dyson, a school finance expert and
assistant law professor at Southern Methodist University. "There is no better political cover than to have a court rule
that something must be done, which allows politicians to say their hands are tied ."

Perm forces the court to rule on a moot issue – this makes the decision meaningless
and means the CP can’t shield from politics because Congress is perceived as acting
first.
UPLR ‘2 – University of Pittsburgh Law Review 2 (Matthew T. King, “Towards a practical convergence,” Spring, 63 U. Pitt. L. Rev. 703)
The Court conceded that it would hear cases "when actual litigation brings to the court the question of the constitutionality of such legislation,"
but it will never simply test Congress's law-making savvy without an actual case or controversy. n39 Harking back to Taney, the Court relied on
the execution of a [*710] timely, meaningful judgment as a primary factor in determining whether the case was legitimate. n40 Over time, the
Court has molded the cases and controversies requirement of Article III into a doctrine of justiciability. The central guideline and goal of this
doctrine is the ability of a court to provide a meaningful decision. While courts reserve the right to declare cases non-justiciable for general
reasons, time has honed this jurisprudence into three specific arenas: ripeness, mootness, and standing. Ripeness means the case and facts at
hand must be fully and actually developed. n41 If not, no real case or controversy exists and the matter is to be dismissed. In his full summation
of rules against advisory opinions, Justice Brandeis stated that the "Court will not 'anticipate a question of constitutional law in advance of the
necessity of deciding it.'" n42 The next year, Anniston Manufacturing Co. called into question the constitutionality of numerous vital provisions
of the 1936 Revenue Act. n43 Only the cotton taxes and procedures for recovery of monies under the Agricultural Adjustment Act pertained to
Anniston, yet it challenged the Act generally. n44 In dismissing the case the Court specifically declined to rule on matters that had not yet
created (and might never create) an aggrieved party. n45 The Court bolstered Anniston with Electric Bond & Share Co. v. S.E.C. n46 There, the
Court refused to assess the validity of the entire Public Utility Holding Company Act when only three provisions applied to the companies
bringing suit: n47 "defendants seek a judgment that each and every provision of the Act is unconstitutional. It presents a variety of hypothetical
controversies which may never become [*711] real." n48 The Court would not decide the issues until they had ripened into a concrete set of
facts and parties. n49 Second is mootness , which requires that the case or facts have not yet run their course. n50 A
moot case is essentially the opposite of an unripe case. n51 In United States v. Alaska Steamship Co., n52 steamship companies
contested the Interstate Commerce Commission's authority to require two different forms for bills of lading for domestic and export
transportation. n53 After the suit was filed, Congress passed an act amending federal power to regulate
commerce and requiring a change in format for both types of bills. n54 Under
the new circumstances, the issue became
moot. n55 The Court described what a moot case is, and what it must do with one: Where by an act of the parties, or a
subsequent law, the existing controversy has come to an end, the case becomes moot and should be treated
accordingly. However convenient it might be to have decided the question of the power of the Commission to require the carries to
comply with an order prescribing bills of lading, this court "is not empowered to decide moot questions or abstract
propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue
in the case before it. No stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or
affect the duty, of the court in this regard." n56
 1. Fiat is normal means – that means congress pass the plan and the president
signs it. Courts deliberately avoid criminal justice rulings.
Waters ’18 [Michael; July 9; Contributor, citing a study published conducted by Northwestern law
professor Tonja Jacobi and Minnesota Court of Appeals law clerk Ross Berlin; The Outline, “The Supreme
Court’s silence on criminal justice issues,” https://theoutline.com/post/5232/supreme-court-criminal-
justice-mass-incarceration; RP]

President Trump’s
nominee to replace retiring Justice Anthony Kennedy is set to perpetuate the Supreme Court’s
irrelevance on criminal justice cases.

A study last month from Northwestern law professor Tonja Jacobi and Minnesota Court of Appeals law clerk Ross Berlin argues that
since the 1970s, the Court has “sidestepped ” profound criminal justice issues like stop-and-frisk, mass incarceration
sentencing, unfair plea deals, and police shootings.

In part, that's because criminal

justice is among the issues the Court’s liberals have ignored in order to pander to
swing vote Anthony Kennedy, as UCLA law professor Jon D. Michaels argued in a Los Angeles Times op-ed Monday. “For years,
progressive justices have tacked to the center, principally to win over Kennedy. In the process, they’ve often
abandoned left-liberal constitutional theories,” Michaels claimed.
Much is uncertain about how the new justice will view policing and sentencing cases, but the study's lead author Tonja Jacobi told The
Outline that though Kennedy’s replacement “could appear to be a little more moderate on these issues” than Kennedy, “I don't expect it
to be a significant turn toward broader criminal procedure rights generally,” she said.

The problem is not that the Supreme Court doesn’t address criminal justice issues at all, but that it addresses
them in limited ways that don’t align with how most people experience the criminal justice system. Most of the
Supreme Court’s focus has been on criminal trials — even though only about 1 percent of criminal justice cases actually end in a trial.

As an example, stop-and-frisk is one of the most pervasive uses of police force and, like most police tactics, it disproportionately targets
communities of color. But the Supreme Court has weighed in on the issue only to ask whether evidence found from stops and frisks can be used
at trial. Onthe larger issue of whether police have the right to conduct searches that target black and Latinx people even when it
doesn’t end in a criminal charge, the Supreme Court has remained silent.

The scope of its rulings on stop-and-frisk is limited to the rare instances in which the person being searched is
actually charged with a crime, well below 12 percent of all stops and frisks.

“The multidecade battle between the liberal and conservative justices over whether [allowing evidence found from
random searches] should be further restricted or fully expanded is irrelevant to the overwhelming majority of people
affected by illegal police encounters, who are typically not prosecuted,” Jacobi and Berlin write.

Some prosecutors offer predatory plea deals to people charged with crimes, believing they can scare them. The
justices have done
little to place limits on what plea deals prosecutors can offer — even though, as the authors write, “almost all criminal cases
are resolved via pleas,” not trials.

The Supreme Court, too, has not weighed in on harsh sentences, especially for minor drug crimes, that have led to the
imprisonment of 2.3 million Americans. Almost all of the Court’s sentencing cases have revolved around the death penalty — an important
issue, but one that directly impacts only about 20 to 50 people each year and that “has no measurable effect on the United States’ anomalous
mass-incarceration problem.”

In his LA Times op-ed, Michaels offers a solution to the Court's relevance woes: fiery,
progressive dissents that broaden the
discussion on these issues and trailblaze the path for future liberals on the Court.
 A. Precision, and distinct literature bases—The Courts review legislative
enactments, and can interpret, apply, or strike them down. But they cannot
themselves enact.
Meyers 19 – Professor Emerita of Philosophy at the University of Connecticut
Edited by Diana T Meyers, Kenneth Kipnis, Steve Griffin, Chapters from Philosophical Dimensions Of The
Constitution, Routledge/Taylor Francis & Group, 2019

Judicial review of legislative enactments has the power to tell us, inter , so the popular analysis it, is fundamentally antidemocratic. Nine justices, appointed for life, have

alia, where our children will go to school, that organized prayer in public schools is impermissible, that
the several states cannot outlaw abortion The . Moreover, this extraordinary power1 can be, and all too often is, exercised in the face of clear expressions of the will of the elected representatives of the people.

institution of judicial review

very invalidate legislative enactments (or, more exactly, the products of that institution that 2) seems to be inconsistent with democracy. "This," John Hart
Ely concludes at the end of a civics sermonette, "in America, is a charge that matters. We have as a society from the beginning, and now almost instinctively, accepted the notion that a representative democracy must be our form of government."3 Judicial review, the legacy of John
Marshall and Marbury v. Madison, is now a deeply ingrained part of U.S. political practice. Given that the courts will engage in judicial review, the standard of review remains a matter of some debate. Current debates about the legitimacy of judicial policymaking divide theorists into two
dominant camps: the interpretivists represented by Raoul Berger, William Rehnquist, and Robert Bork, and the noninterpretivists represented by Thomas Grey, Owen Fiss, William Brennan, and Michael Perry. Most of the current debates about constitutional interpretation are misleading
because they suggest that there are exactly two positions, exclusive and exhaustive, that one may adopt: the clausebound literalism of Raoul Berger and William Rehnquist (hereafter called positivist interpretivism) and the value imposing noninterpretivism of Michael Perry and Thomas
Grey (hereafter called nonpositivist, noninterpretivism}.4 My goal in this chapter is to defend a theory of judicial 96 Between Clause-bound Literalism and Value Imposition 97 review that stands as an alternative to the dominant theories in current legal/philosophical debates. The theory I
argue for is faithful to the central tenets of legal positivism, yet it sanctions the imposition of extraconstitutional values. This chapter is divided into three sections. In the first two sections I show why both positivist interpretivism and nonpositivist noninterpretivism are inadequate
theories of constitutional interpretation. While I address the shortcomings of these theories, I also attempt to demonstrate that each has important contributions to make toward an adequate theory of judicial review. In the third section I outline the position of the positivist
noninterpretivist. Primary emphasis is placed on explicating the position (showing why it is both positivist and noninterpretivist) and on distinguishing it from positivist interpretivism. I also consider the major objection against any theory of noninterpretive review: How are the values that
the Court may impose to be determined? The answer I provide to this question has a legacy traceable through Alexander Bickel back to Edmund Burke: consensus of the citizenry. THE FAILURE OF POSITIVIST INTERPRETIVISM Positivist interpretivists argue that when engaging in judicial
review of legislative enactments, the criterion of constitutionality to be applied by the courts is the express language of the Constitution. If only judges would follow the criterion of constitutionality recommended by the positivist interpretivists, there would be no cause for popular
resentment of the judiciary. A true positivist interpretivist judge would follow the suggestion of Justice Roberts in U.S. v. Butler, that when exercising judicial review the Court should simply "lay the article of the constitution which is invoked beside the statute which is challenged and
determine whether the latter squares with the former."5 Only if the act cannot be squared with the relevant constitutional provision should the Court strike the act. Roberts's suggestion as to how courts should act when reviewing legislative enactments is appealing, but it simply does not
work. His approach looks nice until one tries to figure out how to implement it when the constitutional provision involved is not completely clear. The Eighth Amendment protection against cruel and unusual punishment says nothing about which punishments are cruel and unusual, the
due process clauses of the Fifth and Fourteenth amendments say nothing about how much process one is due, nor does the Equal Protection Clause indicate how much protection citizens are to enjoy. In short, many of the operative clauses of the Constitution simply are not amenable to
interpretivist analysis. Accordingly, one faces a dilemma. Either one must abandon interpretivism or one must be willing to concede that certain constitutional provisions that appear to place some restraints on the actions of both state and federal government officials do not, in fact, 98 H.
Hamner Hill have any force at all. 6 Those unwilling to surrender so powerful a tool as the Equal Protection Clause cheerfully conclude that interpretivism must be abandoned and that some form of noninterpretivism must be embraced. Such a rejection of interpretivism, however, is too
quick. It fails to ask what motivates one to embrace interpretivism at all. It fails to realize that at one level at least, interpretivism seems to follow from a positivist conception of law. There are two distinct theses that are central to contemporary legal positivism. First there is the famous
separability thesis: the view that there is no noncontingent link between law and morality. The separability thesis is the most widely noted feature of legal positivism, and it is the target of most of the philosophical attacks directed at legal positivism.7 Despite the attention that
separability has drawn, it is not of great moment to this discussion. Rather, I want to focus on the other thesis central to legal positivism-what Joseph Raz calls the sources thesis8 and what Hans Kelsen calls the doctrine of authorization. 9 Put roughly, the sources thesis states that for a
norm to be a valid law, that norm must have been issued (posited) by a particular source (the exact source being relative to a legal system). A norm, regardless of its form or its moral force, that does not issue from sources recognized as legitimate within a legal system simply is not a valid
legal norm within that system. In a government of limited, delegated lawmaking authority, the importance of the sources thesis for a theory of constitutional adjudication should be clear. Only those governmental bodies charged with lawmaking functions can make law, and then only
within the scope of the authority delegated. As the judiciary is not charged with lawmaking, the courts are not proper sources of law. But when the courts engage in noninterpretive review, they do make law. Striking an act as unconstitutional is no less an act of lawmaking than is the
original promulgation of the act. Thus the sources thesis appears to cut against noninterpretive review. It is, I believe, the sources thesis that underlies the philosophical allure of positivist interpretivism, and it is the sources thesis that ultimately leads me to develop a positivist
noninterpretivism. What, then, is wrong with positivist interpretivism, given the powerful brief the sources thesis appears to provide against noninterpretivism? Why even attempt to retain the sources thesis and still condone noninterpretive review? Because positivist interpretivists
adopt an overly restrictive concept of sovereignty. Following Bentham, positivist interpretivists contend that valid law must be tied directly to the will of the sovereign in a state. As Bentham puts it: "A law may be defined as an assemblage of signs declarative of volition conceived or
adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are or are supposed to be subject to his power."10 When a law is viewed with respect to its source, Between Clause-bound
Literalism and Value Imposition the will of which it is the expression must, as the definition intimates, be the will of the sovereign in a state. Now by a sovereign I mean a person or assemblage of persons to whose will a whole political community are (no matter on what account)
supposed to be in a disposition to pay obedience .... A mandate [law] is either referable to the sovereign or it is not: in the latter case it is illegal, and what we have nothing to do with here.11 99 The lesson drawn from Bentham is that law is an expression of the will of the sovereign. Any
expression of will other than that of the sovereign, regardless of the form of the expression, is not, indeed cannot be, law. Law is created when and only when the sovereign expresses its will. The only modification of the basic Benthamite theory of law necessary to make it applicable to a
constitutional democracy is that lawmaking organs to whom the sovereign has delegated lawmaking powers may make valid laws only when acting within the scope of the authority delegated to them. Thus, only the sovereign and agents of the sovereign may make law, and, then, in the
case of the agents, only when acting within the scope of delegated authority. But where is the sovereign will expressed and where is political authority delegated? For positivist interpretivists, the constitutional text is the sole expression of the sovereign will; that text, and that text alone,
is determinative of law and of legitimate delegations of lawmaking power (authority). Any piece of legislation or court action that contravenes constitutional requirements is, eo ipso, subject to judicial invalidation as is any delegation of lawmaking authority (on the federal level) not
sanctioned by the text. The text of the Constitution, for positivist interpretivists, serves the function of Kelsen's Grundnorm: It underwrites the legitimacy of all other laws or delegations of lawmaking authority. 12 Given that the fundamental expression of sovereign will is contained in the
text of the Constitution, one may still ask of whose will is the document an expression? Put another way, who is sovereign? The positivist interpretivist answers this question in an unacceptably narrow way. The will of which the constitutional text is an expression is the will of the framers
of the document. 13 The excessive narrowness of the Benthamite concept of sovereignty, which is adopted by modem positivist interpretivists, can be seen in Bentham's few remarks concerning the institution of judicial review. Being wed to the idea of an unlimited sovereign, Bentham
finds the institution of judicial review inconsistent with the very idea of sovereign authority. "By this unicompetence, by this negation of all limits, this also is to be understood, namely, that let the legislature do what it will, nothing that it does is to be regarded as null and void: in other
words, it belongs not to any judge so to pronounce concerning it: for, to give such powers to any judge would be to give the judge . . . a power superior to that of the legislature itsel£."14 Bentham's dislike for the institution of judicial review can be traced directly to his theory of unlimited
sovereign power-a theory of sovereignty expressly rejected 100 H. Hamner Hill by the framers of the Constitution. Accordingly, any theory of constitutional interpretation applicable to a government of limited powers must reject the Benthamite theory of sovereign power. Despite this
clear need, positivist interpretivists at least tacitly accept Bentham's concept of sovereignty. In the third section of this chapter I develop a theory of sovereignty that is markedly different from Bentham's, but one that is nonetheless consistent with Bentham's positivist theory of law. 15
For the positivist interpretivist, having adopted both a Benthamite theory of law and a Benthamite (though not Bentham's) theory of sovereignty, determining what a particular constitutional provision requires-what the standards of legal validity under that provision arerequires looking
first to the express text and then, if the text is not selfexplanatory, to the intentions of the framers of the provision. To be sure, the positivist interpretivist program is an inviting one, but it cannot, as will be demonstrated shortly, succeed. At first blush, the positivist interpretivist project is

only those enactments that violate could legitimately

quite alluring. Using the positivist interpretivist criterion for judging legislative enactments unconstitutional, clear passages in the Constitution

be struck by the courts Judicial review, as an institution, would thus be immune from charges of
as unconstitutional.

improper judicial policymaking

government by judiciary and . If the positivist interpretivist project were viable, only those enactments that, to borrow a Quinean aphorism, wear their unconstitutionality on their sleeves could, and
would, legitimately be struck as unconstitutional. There are few, if any, legal theorists who could find fault with judicial invalidation of legislative acts running afoul of so stringent a criterion of constitutionality.16 Unfortunately, adopting such a criterion of unconstitutionality is
unacceptable on several grounds. First, assuming, arguendo, that the position of the positivist interpretivist does not fall into the intentionalist fallacy, there are still good reasons for believing that the project cannot succeed. Gary Sherman states the case with admirable clarity and
eloquence: Christopher Hogwood has a simple goal: the reinterpretation of all major Western symphonic works according to "original intention," using original instruments, original ensembles, original stylistic methods and so forth. Which is a laudable effort that, if carried out with
Maestro Hogwood's usual skill, should contribute greatly to aesthetic enlightenment. However, there is one aspect of the original performance that cannot be duplicated: None of us can listen to the result with 18th or 19th-century ears or feel its effects with 18th or 19th-century hearts.
The world has changed and we cannot pretend that Antonio Dvorak, Bela Bartok, Aaron Copeland, jazz and rock 'n' roll never happened. Irrespective of the purity of the presentation, we will not hear what our forebears heard. 17 Even if one could determine the original intention of the
legislators who enacted a provision, it is not clear that that intention would be of any Between Clause-bound Literalism and Value Imposition 101 use to a modem court attempting to apply a two hundred year-old provision of the Constitution to one of today's problems. Even politically
honest18 positivist interpretivists seem to miss the importance of this point. William W. Crosskey, a much neglected proponent of positivist interpretivism, was fond of quoting Justice Holmes on the true nature of legal interpretation. Holmes said that when interpreting a provision: "We
ask not what this man meant, but what those words would mean in the mouth of the normal speaker of English, using them in the circumstances in which they were used."19 The Holmes approach to interpretation lends support to the positivist interpretivist just in case the speaker
whose words were in need of interpretation was one of the framers of the provision. If the question raised by a party challenging some governmental action as unconstitutional were "Would this action, had it been undertaken in 1789, have been unconstitutional?" then emphasizing
original intentions would be completely correct. But such is not the question asked. Rather, the question is whether a particular governmental action, undertaken today, in the last quarter of the twentieth century, is unconstitutional. Today's "normal speaker of English" speaks the
language of the late twentieth century, not the late eighteenth. The crucial words are used in the context of today, not two hundred years ago. The approach of the positivist interpretivist is thus not so much wrong as it is wrongheaded. Second, positivist interpretivism, taken seriously,
makes hash of accepted Supreme Court practice. Regardless of the political bent of the decisions involved, interpretivism holds that most of the major decisions in constitutional law, including Marbury v. Madison, 20 are illegitimate because, inter alia, there is no clear expression in the
Constitution that the Court may review the constitutionality of acts of Congress. Among the cases other than Marbury that end up being illegitimate on an interpretivist basis are Lochner v. New York, 21 Brown v. Board of Education, 22 Griswold v. Connecticut,23 Mapp v. Ohio,24 and Roe
v. Wade. 2s The difficulty with positivist interpretivism is that it is not at all faithful to actual legal practice. Courts do not, and have not in the U.S. legal experience, behaved as the positivist interpretivists would have them behave. A theory of constitutional adjudication that bears
precious little relevance to the phenomena of which it is a theory or that seriously misdescribes the phenomena to be explained is, at best, a poor theory. Finally, positivist interpretivism leaves no role for courts to play as agents of social change. Legal scholars have, over the past thirty
years, gradually, sometimes grudgingly, come to recognize the legitimacy of the claim of the American Legal Realists that courts can, do, and should act as agents of social change and social reform. The clearest example of such action by the courts is the Brown decision and its progeny.
Other examples can be found in the areas of criminal procedure, voting rights, and freedom of expression. In the positivist interpretivist model of constitutional adjudication, there is no place for such action. Anyone 102 H. Hamner Hill committed, as I am, to defending at least some role
for the courts to play as agents of social change must reject positivist interpretivism. Adequate explication of Supreme Court behavior and support of the courts as agents of social change require a theory of judicial review that allows the courts to impose extraconstitutional values. Simply
rejecting positivist interpretivism does not, however, settle the issue. One must develop a theory that allows judicial imposition of values not expressed in the Constitution. One such theory is nonpositivist noninterpretivism. In the next section I show why such a theory cannot succeed.
THE FAILURE OF NONPOSITIVIST NONINTERPRETIVISM Nonpositivist noninterpretivism sanctions judicial imposition of extraconstitutional values. In so doing, this theory underwrites the legitimacy of Brown and similar decisions. The difficulty with this theory is that one needs a defense
of the values one would have the courts impose when engaging in judicial review. One obvious approach to defending nonpositivist noninterpretivism lies in natural law theory. Natural law, so the argument goes, provides a legitimate source for extraconstitutional values. Michael Perry
provides a sophisticated natural law defense of nonpositivist noninterpretivism in The Constitution, the Courts, and Human Rights. Perry's natural law defense of non positivist noninterpretivism is limited to human rights cases. He contends that noninterpretive review serves a special
political function that cannot be served by any other institution or practice. For Perry, "[t]he function of noninterpretive review in human rights cases, then, is the elaboration and enforcement by the Courts of values, pertaining to human rights, not constitutionalized by the framers; it is
the function of deciding what rights, beyond those specified by the framers, individuals should and shall have against government."26 Deciding what rights people should and shall have against government involves deciding what is, at heart, a political-moral question. What is more, if the
decision is to be politically legitimate, then the decision on the matter must be correct. 27 But what, one must ask, is the criterion to use in judging the correctness of an answer to a political-moral question? For Perry, the criterion with which to judge the correctness of an answer to a
political-moral question, and the ultimate source of extraconstitutional values, is "a particular conception of the American polity that seems to constitute a basic, irreducible feature of the American people's understanding of themselves. The conception can be described, for want of a
better word, as religious."28 Perry recognizes that his answer to the question invites misunderstanding. The religious self-understanding that lies at the heart of Perry's defense of nonpositivist noninterpretive review is in no sense sectarian or theistic. Rather, it involves a commitment "to
the notion of moral Between Clause-bound Literalism and Value Imposition 103 evolution,"29 a commitment that recognizes that the will of the people is not the definitive answer to moral questions: The people may be (and often are) mistaken in their moral appraisal of certain
questions. What is more, Perry believes that the people recognize their fallibility and are committed to a search for right (or at least better) answers to fundamental moral questions. The people have a commitment to a higher law, a law that determines the correctness of an answer to a
political-moral question "independently of what a majority of the American people [believes or] comes to believe in the future."30 Thus, "noninterpretive review in human rights cases enables us to take seriously-indeed is a way of taking seriously-the possibility that there are right
answers to political-moral problems."31 The possibility that there are right answers, Perry argues, is one to which the American people are "religiously" committed. Assuming that Perry's views on the religious self-concept of U.S. citizens is correct, what problems follow from entrusting to
the courts the task of moving popular moral beliefs in the direction of correct moral beliefs? At least two quite distinct challenges can be leveled at Perry's delegation of moral decisionmaking. The first concerns political theory (why the courts rather than the legislature?); the second
concerns the epistemological worries raised by skepticism. To the charge that the courts are institutionally less competent to make moral decisions (or to reach decisions on difficult moral questions) than are legislatures, Perry gives a predictable answer in terms of political insulation. The
courts, Perry argues, being free from the will of the voters, are less likely to decide moral questions through reference to established moral conventions than are legislators. To be sure, Perry's claims seem to be susceptible of empirical confirmation. A detailed study of judicial as opposed
to legislative behavior concerning decision of moral issues should allow one to determine whether courts do in fact reach correct moral decisions more often than do legislatures. Of course, this suggestion leads directly to the epistemological problems presented by skepticism. On the
epistemological level, Perry's thesis raises serious questions about how the courts can come to know one of the right answers to a moral question. An ethical skeptic or a moral relativist would simply challenge Perry's assertion that there are context-independent right answers to moral
questions. The ethical skeptic argues that even if there are right answers to moral questions (if there is moral truth), those answers are beyond the scope of human knowledge. There may well be moral truth, but human beings cannot obtain it and judges certainly have no better claim to
it than do electorally responsible legislators. Because judges have no better claim to moral truth than do legislators, and because judges are electorally unaccountable, entrusting to the courts the task of determining which moral standards a society shall adhere to runs the risk of a moral
dictatorship by the judiciary. Hence the 104 H. Hamner Hill rejection of noninterpretive review on skeptical grounds. Perry recognizes that the skeptic presents serious difficulties for his view, and he attempts to reject the position (Perry seems unaware of just how worthy an opponent the
Pyrrhonic skeptic has proven in the history of philosophy). Unfortunately, Perry simply rejects the position of the ethical (and, in passing, epistemological) skeptic without arguing against it. To be sure, Perry notes that many people reject ethical skepticism on many different grounds.
Perry's response to the skeptic smacks of question begging. Unless Perry can provide a stronger refutation of moral skepticism, nonpositivist noninterpretivism seems to be indefensible on theoretical grounds. What emerge then are strong reasons for rejecting both positivist
interpretivism and nonpositivist noninterpretivism. What is needed is a middle ground position, one that accepts the strengths of the extremes of the spectrum without embracing the critical defects inherent in each. Such a position, a positivist noninterpretivism, is set forth in the next
section. POSITIVIST NONINTERPRETIVISM The central defect in positivist interpretivism is that that theory does not sanction judicial imposition of any extraconstitutional values. Nonpositivist noninterpretivism remedies this defect, but at too high a price. The justification of judicial
imposition of extraconstitutional values provided by Perry rests on unstable epistemic foundations, runs the risk of justifying a judicial moral tyranny, and pays no heed at all to the sources thesis or the principle of electorally accountable policymaking. For Perry, the moral principles that
underwrite noninterpretive review exist and determine correct answers to moral questions independently of what a majority of the people believe or come to believe. What is needed, then, is a theory of judicial review that remains faithful to the sources thesis and the principle of
electorally responsible policymaking while sanctioning the judicial imposition of some extraconstitutional values. Positivist noninterpretivism is just such a theory. Central positivist noninterpretivism is the development of a coherent version of legal positivism that does not tie sovereignty
exclusively to the intentions of the framers. Such a development requires major modifications of the concept of sovereignty adopted by the positivist interpretivists. The remainder of this section is divided into four subsections. The first deals with the concept of sovereignty. The second
deals with the nature of the extraconstitutional values that the courts may impose under the concept of sovereignty developed in the first subsection. The third discusses the role of the courts as agents of social change under a positivist noninterpretivist theory of judicial review. Finally,
the fourth subsection discusses some of the difficulties presented by the theory I advocate. Between Clause-bound Literalism and Value Imposition 105 The Concept of Sovereignty The defects noted above with positivist interpretivism can be traced directly to the overly restrictive
concept of sovereignty adopted by adherents of that theory. The locus of sovereignty, for the positivist interpretivists, is the will of the framers of the Constitution. Law must be an expression of the will of the sovereign, fundamental law is expressed in the Constitution, and the will of
which the Constitution is an expression is the will of the framers. Accordingly the emphasis placed on original intentions. Positivist noninterpretivism, on the other hand, identifies the locus of sovereignty as the will of a consensus of the people (the will of the people, for short). The
people are sovereign, and it is the will of the people, not the framers, that is determinative of law. At first this does not seem like a major modification, but it has far reaching implications for legal theory. Simply shifting the locus of sovereignty from the will of the framers to that of a
consensus of the people allows one to see at least two critical differences between interpretivist and noninterpretivist versions of positivist constitutional theory. Two areas in which important differences are readily visible are changes in the sovereign will and the determination of the
meaning of constitutional provisions. Can the will of the sovereign, with respect to issues of fundamental law, change over time? To this question both the interpretivist and noninterpretivist positivists answer in the affirmative. Their answers differ, however, with respect to the ease with
which change is possible and with respect to the mechanism of change. For the positivist interpretivist, the will of the sovereign, being linked to the will of the framers, is relatively fixed and static. The will of the sovereign on issues of fundamental law is fixed in the Constitution. Changes
in fundamental law, revisions in the will of the sovereign, require amending the Constitution. If fundamental law is to be created or changed, the positivist interpretivist insists that such changes should be made in the legislature, through the amendment process, not in the courts. 32 For
the positivist noninterpretivist, on the other hand, the will of the sovereign, even with respect to questions of fundamental law, is fluid and mutable; it changes as the will of the people changes. Times and social conditions change, and law, even fundamental law, if it is to be of service to
the people, must be able to change in response to changing circumstances. As Dean Harry W. Jones puts it, It has become a truism that law must be kept up to date, responsive to the continuing processes of social change. Present-day judges are very much aware that concepts and
categories received from law's past-privity of contract, sovereign immunity, "fault" in divorce actions and many more-may not order contemporary phenomena effectively and justly. It is not that these concepts were necessarily wrong when they were handed down; we are, I think, too
quick to assume that. It is simply that, whatever their original justification, they offer the wrong answers for today's problems. 106 H. Hamner Hill One hates, in a way, to see old friends like negligence, consideration and "state action" withering away in vitality and influence, but, to
borrow a phrase from Justice Roger Traynor, "the number they have called is no longer in service. "33 Jones's observations apply no less to questions of fundamental law than they do to questions of more mundane areas of substantive law.34 For the positivist noninterpretivist, when the
will of a consensus of the people changes with respect to a particular issue, the law on that issue has changed, and the courts should be both empowered and required to enforce the new understanding. The reason underlying such an empowerment and such a requirement should be
clear: A positivist theory of law, in which sovereignty is explicated in terms of the will of a consensus of the governed, requires it. Law is an expression of the will of the sovereign, and sovereignty resides in the governed. As the role of courts is to enforce the laws of the sovereign, it
follows that if the will of the sovereign on a particular issue conflicts with the will expressed in a particular statutory or even constitutional provision, then the courts should enforce the current will as against the will expressed in the provision. The will expressed in the provision, not being
reflective of the will of the sovereign, has lost the force of law. If courts were to act on the will expressed in the provision, they would be acting contrary to the will of the sovereign, contrary to law. Such behavior on the part of courts no doubt takes place, but such actions are clearly ultra
vires. The will of the sovereign is determinative of law. If the will of the sovereign is clear, and a court knows that will and disregards it, for whatever reason, then that court has exceeded its legitimate authority and has acted illegally. In many instances, of course, when a question comes
before a court for decision the will of a consensus of the people may not be clear. It may be that people have failed to consider the issue or it may be that a consensus from a previous era is undergoing reexamination. In such cases, the role of the courts will be rather different than that
described in this subsection. Such situations are discussed in the third subsection. The second area in which important differences between the interpretivist and noninterpretivist versions of legal positivism appear is in the determination of the meaning of various constitutional
provisions. For the positivist interpretivists, ideally, a constitutional provision wears its meaning on its sleeve. All that one need do in order to determine precisely what a constitutional provision requires is to read the provision.35 When the meaning of a provision is unclear, then the
courts should look to the legislative history of the provision to determine the original intent. If, as in the case of the liberty clauses of the Fifth and Fourteenth amendments, the meaning of the provision is unclear, and there is no legislative history indicating what the framers intended, the
courts should refrain from imbuing the provision with their own values. Although there is a certain appeal to such a program, it has the unfortunate and Between Clause-bound Literalism and Value Imposition 107 unacceptable effect of deoperationalizing many important provisions in
the Constitution. Positivist noninterpretivism, on the other hand, has the court look to the understanding and will of a consensus of the people with respect to unclear constitutional provisions in order to determine the meaning of such provisions. The precise meaning of a constitutional
provision depends upon the understanding of a consensus of the people with respect to that provision. As times change, and as the people's understanding of a constitutional provision changes, the legal requirements imposed by that provision change. An example of this sort of change
can be seen in the attitudinal change with respect to equal protection that took place in the United States between 1896 (Plessy v. Ferguson) and 1954 (Brown). As the people, prompted by the courts, gradually came to the view that the requirements of the Equal Protection Clause were
inconsistent with state-enforced racial segregation (a view shared by a consensus of the people at least by the late 1960s), the meaning of the Equal Protection Clause changed. That the framers of the Fourteenth Amendment did not intend to outlaw segregated public schools is of little
importance. The will of the sovereign (the people) in 1954 was different than it had been in 1867. If the will of the people concerning a constitutional provision at one moment in history is at odds with the will of an earlier generation, so much the worse for the previous generation.
Sovereign will, for the positivist noninterpretivist, is determined through reference to a consensus of the governed. In order to make sense of the continued legal validity of old (sometimes ancient) statutory or constitutional provisions that cannot properly be understood to be a part of
the will of the current sovereign, one needs a Lockean doctrine of tacit consent or tacit reauthorization. Unless the current sovereign specifically overrules actions of a previous sovereign, those actions remain in force. There are no major difficulties with this part of the consensus
approach to sovereignty. Difficulties arise in determining what the consensus is on controversial issues like abortion. I address those difficulties in the third subsection. Assuming that I can construct a positivist theory of constitutional interpretation in which the concept of sovereignty is
not tied to the intentions of the framers, what makes such a theory noninterpretivist? I address that question in the next subsection. Determining the Values Courts May Impose In the previous subsection I discussed modifications in the concept of sovereignty necessary to divorce the will
of the sovereign from the will of the framers. So doing sets the stage for a positivist theory of constitutional adjudication that is noninterpretivist. The theory being developed is positivist in that it adheres to the sources thesis and, as 108 H. Hamner Hill will be demonstrated shortly, to the
separability thesis. But it is also noninterpretivist. The central feature of any noninterpretivist theory of judicial review is that the courts are empowered legitimately to impose extraconstitutional values-values that are not clearly stated in the Constitution nor intended by the framers to
be imbedded in it. Because the concept of sovereignty outlined above locates sovereignty in the will of a consensus of the people, it should be clear that legal values need not be restricted to those expressly stated in the Constitution. The text of the Constitution simply is not the final
word on questions of fundamentallaw. 36 Because law is but an expression of the will of the sovereign, for a norm to become law all that is required is that that norm be a part of the will of the sovereign. Thus, with certain exceptions, for a value to become law, all that is required is that
that value become a part of the will of the sovereign. Even if these values are clearly extraconstitutional, such as the value of racial equality vis-a-vis the Fourteenth Amendment, that value becomes law, becomes legally binding, when incorporated into the value scheme willed by a
consensus of the people. Once a value, even an extraconstitutional value, is so willed, the courts may legitimately apply that value. If and when a consensus determines that, say, equal protection of the laws is inconsistent with, inter alia, state-imposed racial discrimination, despite a
deafening silence on such issues within the text of the Constitution, the value judgment adopted by the people becomes legally applicable by the courts. Accordingly, the version of positivism being considered here is noninterpretivist. One might worry that this theory runs roughshod
over constitutional protection of minority rights against majority tyranny. In the last subsection I discuss this problem and a solution to it that involves restrictions placed on majority rule by the sovereign. Care must be taken at this point not to confuse the positivist noninterpretivism that
I advocate with the nonpositivist natural law theory advocated by Perry. In my view only those values that are part of the will of a consensus of the people are legally binding. If the people fail to incorporate a particular moral principle into their will, then that principle ultimately lacks
legal force and can play, at most, a very limited role in legitimate judicial decisionmaking. That is not to say, however, that such a principle has no role at all, as will be discussed in the next subsection. To deny that principles, regardless of their moral validity, not willed by the sovereign
lack legal force would be to deny both the sources and separability theses. That I am unwilling to do. Perry, on the other hand, straightforwardly denies the separability, and, eo ipso, the thesis. Perry argues that there are legally binding moral principles that exist and determine the
correct answers to political-moral questions "independently of what a majority of the American people [believes or] comes to believe in the future." 37 And, for Perry, those principles should govern Supreme Court behavior when engaging in noninterpretive review. Between Clause-
bound Literalism and Value Imposition 109 Courts as Agents of Social Change Even if one concedes that courts should apply the value scheme adopted by the sovereign as described here, it is not at all clear that there is a role for the courts to play as agents of social change. Moreover, it
is unclear that there is any role for moral principles not incorporated into the will of the sovereign in judicial review. If one were to hold, as I do not, that the consensus on a particular moral question determinative of law at any given moment in history is the actual consensus of a
prereflective or unreflective citizenry, neither of the roles mentioned above would exist. The courts would, in such a view, properly reflect change, but they would not initiate it. Moreover, such a view would result in the standards of constitutionality being held hostage by popular
sentiment. In such a view, the decision in Korematsu v. U.S. might well turn out to be fully legitimate, the ruling reflecting the will of the majority at the time, while the decision in Brown would be illegitimate in that it failed, at the time the decision was made, to reflect a consensus. 38
Such results, however, can be avoided by allowing the courts to act as agents of social change, not merely as reflectors of it. Claiming that there are instances in which courts should be allowed to act as agents of social change, where social change means a change in the will of the
sovereign, has significant implications for legal theory. The claim suggests that a case sometimes comes before a court even though there is no clear law governing the case. The simple fact of the matter is that there are cases in which either the law is unclear or in which there is no law on
the matter. Situations of this sort can arise when cases are unforeseen or when the people realize that what was once an accepted solution to a problem no longer "orders the phenomena justly and fairly." In either case, a court is faced with a very difficult task-it must decide a case39 in
the absence of clear law (perhaps in the absence of law at all). This claim amounts to saying that there are gaps (lacunae) in the law that courts must attempt to fill. 40 A gap exists in the law whenever a case falls within the jurisdiction of a court and there are no clear legal rules for its
resolution. 41 To be sure, the existence of legal lacunae has been much debated, and the existence or nonexistence of the same is a major question for legal theory. Even though this chapter is not a proper forum for exploring the issue of legal lacunae in depth, I do think it important to
point out that my version of positivist noninterpretivism requires their existence. Moreover, positivist noninterpretivism makes it the province of the courts to fill such gaps. When a court seeks to fill in a gap in the law, when it seeks to find/ make the law, what the court must do is
attempt to determine, or to help in the determination of, the will of a consensus of the people. If the court were to do otherwise, it would be abandoning the sources thesis and, accordingly, acting ultra vires. Thus saying that a court may, indeed has to, decide cases in the absence of law
does not amount to 110 H. Hamner Hill a rejection of the sources thesis. In the absence of a dear consensus, in the absence of law, a court should attempt to determine the consensus or to shape it, whichever is appropriate to the case. Determining the consensus of the people is never an
easy task. The task is made all the more difficult when the issue involves a moral problem that the people have not subjected, or will not subject, to critical examination. The consensus determinative of law should be a reflective rather than a prereflective or unreflective one. It is in the
provocation of critical reflection on difficult issues that the court has a role to play as an agent of social change. By tackling some tough issues, and attempting to find acceptable solutions to them, the courts have an extraordinary power to force critical evaluation or reevaluation of moral
beliefs. The courts have the ability to act as agents provocateurs of a developing moral consensus. When there is no dear consensus on a particular moral question, or when the consensus appears to be unreflective, the task of the courts should be to try to determine an appropriate
principle for resolving the issue and then see whether, upon reflection, a consensus develops that embraces the principle articulated. What is more, should a court fail to articulate a principle on which there is a consensus, or should it articulate a principle that runs counter to the
reflective consensus, there are a number of ways in which such a principle can be denied legal force. Several examples should help clarify this point. Three important cases dealing with difficult moral issues exemplify the nature of the role that courts should play as agents of social change.
The cases are Brown, Roe v. Wade, and Lochner, representing, respectively, the court successfully acting as an agent of social change, the court urging a moral prindple on which there is not yet a consensus, and the court urging a moral principle rejected by the people. Depending upon
how one reads the social science data, a strong case can be made to the effect that in 1954 there was no consensus concerning racial equality and the Equal Protection Clause. The Court, however, saw that there was a need to address the issue of state-sponsored racial segregation and
undertook to articulate a moral principle for dealing with the issue. To be sure, the princple articulated by the Court in Brown prompted neither instant nor universal assent, but it did force a critical evaluation of attitudes concerning racial discrimination. And, importantly, within twenty
years a dear consensus had developed, a reflective consensus, agreeing with the principle articulated by the Court. In dear contrast to the Court's success in changing social attitudes in Brown stands its limited success in dealing with the abortion issue. In Roe the Court accepted the task
of attempting to articulate a moral principle for dealing with the problem of abortion that would be acceptable to a consensus of the people. The principle it articulated, however, far from coalescing a consensus, appears to have split public opinion. Few people are happy with the
principle underpinning Roe. Those who favor Between Clause-bound Literalism and Value Imposition 111 the decision often feel that the right to abort should be stronger than the one the Court articulated; those who oppose the decision feel that there should be no such right. The
ultimate fate of the decision still hangs in the balance, awaiting the development of a reflective consensus. The Court clearly succeeded in Roe in provoking critical examination of moral beliefs, but it has not yet and may never, succeed in discovering a moral principle governing the
problem of abortion acceptable to a consensus of the people. Should a consensus fail to develop, the Court should return the issue to the states for determination in more homogenous forums. In my view the courts simply cannot provide answers to all questions and on those where they
cannot, they should refer the questions to an organ of government more competent to decide. Lochner provides a clear example of what happens when the courts identify a political-moral principle that is actually, or upon reflection, ultimately, rejected by the consensus. There are good
reasons to believe that even in 1905 a majority of the people would have rejected the applicability of laissez-faire economics to many of the then current social problems. When the Court embraced laissez-faire, over Holmes's objections that the Constitution was written for people of
fundamentally differing views, public rejection of the principle adopted by the Court was swift and overwhelming. Legislators continued to pass legislation that flew in the face of laissez-faire principles (much of it was subsequently struck), and President Harry Truman threatened to pack
the Court with justices who would reverse Lochner. Within thirty years the Court saw the error of its ways and reversed. Had the Court not reversed, the people had and have other means at their disposal with which to reject court decisions (short of a court-packing plan). Perhaps the
most powerful of these means is the amendment process. One of the much overlooked features of the U.S. political landscape is the relation between the amendment process and rejection of Supreme Court decisions. There have been, of course, but twenty-six amendments to the
Constitution of which ten accompanied the original document and were necessary for ratification, and yet another two were a serious mistake and its correction (prohibition). Of the remaining fourteen, five of the amendments are clear repudiations of Supreme Court decisions. The
Eleventh Amendment reverses the decision in Chisholm v. Georgia, 42 the Thirteenth and Fourteenth reverse Scott v. Sanford, 43 the Sixteenth reverses Pollock v. Farmer~ Loan and Trust Co., 44 and the Twenty-sixth reverses Oregon v. Mitchell. 45 The amendment procedure is a
powerful tool that the people can and have utilized to correct what are, in the eyes of the people, serious mistakes on the part of the Court when it comes to answering difficult political-moral issues. When the Court errs, there are remedies.46 Having outlined a theory of judicial review
that is both positivist and noninterpretivist, and that retains a role for the courts to play as agents but not the sole determiners of social change, several problems 112 H. Hamner Hill remain to be considered. The problems addressed in the next subsection fall into two broad categories:
those dealing with the determination of a consensus and those dealing with the problem of majority tyranny. Difficulties with Positivist Noninterpretivism The core of my positivist noninterpretivist theory of judicial review is the location of sovereignty in the will of a consensus of the
people. Consensus theories, however, face several serious difficulties, not the least of which involves determining what the consensus is and whose views are to count toward the consensus. There are at least two approaches to determining a consensus: Everyone's views are to count and
to count equally (a moral one-person, one-vote principle), or the views of some count more than, and perhaps to the exclusion of, the views of others. The former approach has been adopted by Edmund Burke and by Alexander Bickel in his later writings; the latter by modern-day
contractarians, John Rawls, and others. Each of these approaches presents difficulties. If, on the one hand, the views of some are to count more than the views of others in the determination of the consensus, two problems arise. First, as the views of some persons are valued more highly
than the views of others, the charge that the consensus is elitist is hard to defeat. Even if those whose views are to be taken more seriously are identified as "competent judges" according to Rawls,47 the consensus that emerges from the competent judges is in no way democratic. In a
society at least nominally committed to democratic policymaking, this is a serious difficulty. The second difficulty involves the determination of who is to count as a competent judge in moral matters. The identification of competent judges in any area of inquiry often smacks of
questionbegging or stacking the deck. Determining who is a competent judge is often a question of power politics, a determination geared toward maintaining the status quo. Even in objective realms like physical science, Thomas Kuhn, Paul Feyerabend, and their followers argue that
people who disagree with the majority power brokers are, despite their objective competence, ruled incompetent. Disagreement with the majority becomes a pretext for banishment to the gulag of incompetence. One should recall Bertrand Russell's conjugation of the highly irregular
verb: I am firm, you are obstinate, he is a pig-headed fool. Although there may well be acceptable answers to the problem of determining who is to count as a competent judge (though I, I should confess, am dubious of even that modest prospect), I can see no way to counter the charge
that entrusting policymaking exclusively to competent judges is inherently antidemocratic. It is, of course, disturbing that unqualified (not to say incompetent) persons take part in the democratic process, but democracy may well require not only a right to be wrong but a right to be
stupidly wrong. To paraphrase Oliver Wendell Holmes, a commitment to democracy Between Clause-bound Literalism and Value Imposition 113 seems to require that the people are entitled to go to hell in a handbasket, so long as they vote themselves there. Of course, embracing the
other option, namely, that everyone's views count equally toward the consensus, poses a clear danger of majority tyranny. Burke noted long ago that there is nothing sacred in the concept of majority rule. It applies, where it does, as a result of history and habit, not because it is in any
way an objectively superior form of government. Pure majority rule subjects the standards of legality and constitutionality to the sentiments rampant in the citizenry.48 Protection of minority rights becomes, to put it mildly, a very serious problem. Despite the serious nature of problems
such as the protection of minority rights, my positivist noninterpretivist theory commits me to what Bill Nelson has called "radical democracy." Ultimately the exclusive determinant of what law is is the will of a consensus .of the people. If the people will unwise, politically unsound, or
clearly immoral laws into existence, then we are stuck with unwise, unsound, or immoral laws as sovereignty is located in the will of the people. As Justice Stewart said, dissenting in Griswold v. Connecticut, the silliness, or stupidity, or even asininity of a law does not, in itself, make such a
law unconstitutional. 49 I wholeheartedly embrace Stewart's position. The courts simply are not the place within our system to seek protection from unwise, immoral, or blatantly discriminatory legislation. To be sure, such protection must be sought somewhere, but, as Learned Hand so
ably argues: "This much I think I do know-that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit,
that spirit in the end will perish."50 To be sure, a society needs to try and protect itself against majority tyranny. But such protection lies chiefly outside the courts.51 There is, however, a limited role for the courts to play in providing such protections. One way the courts can aid in
protecting society against majority tyranny is through the enforcement of self-imposed limits on majority power or action, that is, empowering courts to force the majority to abide by rules to which it, the majority, has agreed-rules that effectively disable the majority from asserting its
will in certain areas. The restrictions on state and federal government actions found in Article I, Sections 9 and 10, and in the Bill of Rights count as instances of disabling rules that the courts could enforce. To be sure, such a move promotes protection of minority rights, but it does not
guarantee them absolutely. Ultimately, of course, the protection offered by the courts is minimal in that the courts are empowered to enforce only those limitations on majority power that the majority accept. Should a super-majority (the two-thirds of the people needed to amend the
Constitution-a number itself the product of self-imposed restraint) decide to free itself from the fetters of current constitutional restraints, then the courts can offer no protection. 114 H. Hamner Hill Though I find the idea repugnant, I can see no good reason to suppose that the people
could not free the states from the restrictions of the Fourteenth Amendment through the repeal process. If there were to be any protection from such action, it would lie outside the courts. One thing that a positivist noninterpretivist theory of judicial review cannot guarantee, and does
not pretend to guarantee, is that the courts will articulate correct moral values, or that the consensus that emerges will embrace correct values. There is no protection against morally bad, yet legally valid, laws. And there is no guarantee that a future decision like Brown would be
legitimate while one like Lochner would be illegitimate. Those decisions and decisions like them stand on the same footing: Each is potentially legitimate. Where they differ is in the verdict history has passed on them. To ask for a guarantee that all decisions in cases of noninterpretive
review will be morally correct is to ask too much from a theory of judicial review. To seek, as so many constitutional theorists seek, a theory that guarantees Brown while protecting against Lochner is truly the elusive quest. NOTES 1. Alexander Bickel begins his classic defense of
nonpositivist noninterpretive review, The Least Dangerous Branch, with the observation "The least dangerous branch of the American government is the most extraordinarily powerful court of law the world has ever known. The power which distinguishes the Supreme Court of the United
States is that of constitutional review of actions of the other branches of government, federal and state." A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, Ind.: Bobbs-Merrill, 1963), p. 1. 2. Critics of judicial review (Ely among them) frequently

Whenever the Court upholds a legislative enactment a far more common

fail to discuss one of the important functions of judicial review-legitimation. (

result than invalidation), that enactment gains an air of legitimacy . For a discussion of the legitimating function, see, A. Bickel, supra note 1, p. 29 ff. 3. J. H. Ely, Democracy
and Distrust: A Theory of Judicial Review (New Haven, Conn.: Yale Univ. Press, 1980), p. 5. 4. For excellent contemporary statements of the positivist interpretivist position, see, R. Berger, Government by Judiciary (Cambridge: Harvard, 1977) and R. Bork, Traditional Morality in
Constitutional Law (Washington D.C.: American Enterprise Institute, 1984); R. Bork, "Neutral Principles and Some First Amendment Problems," 47 Indiana L. J. 1 (1971). Excellent contemporary statements of the nonpositivist noninterpretivist position can be found in A. Bickel, supra note
1; M. Perry, The Constitution, the Courts, and Human Rights (New Haven, Conn.: Yale Univ. Press, 1977); T. Grey, "Do We Have an Unwritten Constitution," 27 Stanford L. Rev. 703 (1975). 5. U.S. v. Butler, 297 U.S. 1, 63 (1936). 6. One is reminded of the Vince Lombardi theory of equal
protection. "Sure," Coach Lombardi is reported to have said, "I treat all my players equally. They're all scum." On a strict interpretivist reading of the Equal Protection Clause, as neither the language of the constitutional provision nor the intent of the framers Between Clause-bound
Literalism and Value Imposition 115 gives any guidance, a court would be compelled to rule a legislative equivalent to the Lombardi approach constitutional. Similarly, whenever a legislature says, "But that is all the process she is due," the court would be compelled to hold whatever
minimal process the legislature provided as adequate. 7. See, for example, Lon L. Fuller, The Morality of Law (New Haven, Conn.: Yale Univ. Press, 1964); "Positivism and the Fidelity to Law," 71 Harvard L. Rev. 593 (1958). 8. Joseph Raz, "Legal Reasons, Sources, and Gaps," in Joseph Raz,
The Authority of Law (Oxford: Clarendon Press, 1979), p. 53. 9. For a full statement of Kelsen's doctrines of authorization, see Stanley Paulson, "Material and Formal Authorization in Kelsen's Pure Theory," 39 Cambridge L. ]. 172 (1980). 10. Jeremy Bentham, Of Laws in General, H.L.A. Hart
ed. (Oxford: Oxford Univ. Press, 1970), p. 1. 11. Ibid., pp. 18 ff. 12. For a discussion of the Constitution as Grundnorm see Paulson, supra note 9. Paulson makes the important point that the Constitution serves both a validating and an invalidating function; that is, the Constitution allows
one both to determine which laws are invalid and which are valid. As noted above, the legitimating function of judicial review is a much neglected feature of the practice, neglected primarily by critics. 13. Robert Bork has noted that whenever possible judges talk as if they were searching
for the intent of the framers ("Neutral Principles and Some First Amendment Problems," supra note 4 at pp. 3-4). Other authors insist that judges should be bound by the intent of the framers. Berger, supra note 4; T. Diamond, "Democracy and 'The Federalist': A Reconsideration of the
Framers' Intent," 53 Am. Pol. Sci. Rev. 52 (1959); J. P. Frank and R. F. Monroe, "The Original Understanding of 'Equal Protection of the Laws,'" 50 Columbia L. Rev. 131 (1950); H. Morrison, "Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Judicial Interpretation," 2
Stanford L. Rev. 140 (1949); C. Warren, "The New Liberty Under the Fourteenth Amendment," 339 Harvard L. Rev. 431 (1926). There are, of course, many who reject the quest for the original understanding. A. Bickel, "The Original Understanding and the Segregation Decision," 69 Harvard
L. Rev. 1 (1955); P. Brest, "The Misconceived Quest for the Original Understanding," 60 Boston Univ. L. Rev. 234 (1980); A. S. Miller and R. F. Howell, "The Myth of Neutrality in Constitutional Adjudication," 27 Univ. of Chicago L. Rev. 661 (1960). 14. J. Bentham, "The Constitutional Code,"
in The Works of Jeremy Bentham, vol. 9, R. Bowring, ed. (London: Simpkin, Marshall, and Co., 1843), p. 121. 15. In large part I take my task here to be similar to that of Hart in his acceptance of a positivist theory of law while rejecting Austin's command theory of law and material
reduction theory. I accept the basic Benthamite position on the nature of law, but I adopt a non-Benthamite, noninterpretivist theory of sovereignty. 16. One criticism of the interpretivist criterion of unconstitutionality is that it is too stringent. Felix Cohen argues that the interpretivist
criterion, expressed in James Bradley Thayer's famous rule of clear mistake, amounts to a rule that what is rational is constitutional. "Taken seriously, this conception makes of our courts lunacy commissions sitting in judgment upon the mental capacity of legislators and, occasionally, of
judicial brethren." F. Cohen, "Transcendental Nonsense and the Functional Approach," 35 Columbia L. Rev. 809, 819 (1935). 116 H. Hamner Hill 17. G. Sherman, "Keeping Alive a 2-century-old Document," National L. ]., Monday, October 13, 1986, p. 13. 18. One of the problems that one
encounters in current debates about constitutional interpretation is that various theories of interpretation are often used to mask political convictions. The work of William Winslow Crosskey, for example, is almost totally ignored by current proponents of positivist interpretivism. This is
odd in that Crosskey provides a careful and detailed study of the meaning of various constitutional provisions as they were understood by the framers in the context of the late eighteenth century. Crosskey's analysis, however, reveals that provisions like the Commerce Clause were
originally intended to grant the federal government extraordinarily broad regulatory powers. Such a reading of the original intention of the Constitution is at odds with the political motives of many positivist interpretivists, so it comes as little surprise that Crosskey's work is virtually
ignored. See, W. W. Crosskey, Politics and The Constitution in the History of the United States, 3 vol. (Chicago: Univ. of Chicago Press, 1980). 19. 0. W. Holmes, "The Theory of Legal Interpretation," 12 Harvard L. Rev. 418 (1899). Crosskey, supra note 18, uses this quote from Holmes on the
frontispiece of the first two volumes of Politics and the Constitution. 20. 5 U.S. (1 Cranch) 137 (1803). 21. 198 u.s. 45 (1905). 22. 347 u.s. 483 (1954). 23. 381 u.s. 469 (1965). 24. 367 u.s. 643 (1961). 25. 410 u.s. 113 (1973). 26. Perry, supra note 4, p. 93. 27. Perry does not subscribe to the
view that there is a uniquely correct answer to each political-moral question-there may be several. Thus he rejects a moral version of Dworkin's right answer thesis. What Perry desires is a process of dispute resolution likely to reach one of the right answers to difficult politicalmoral
questions. He believes that the process most likely to succeed is noninterpretive review. 28. Perry, p. 97. 29. Perry, p. 99. 30. Perry, p. 115. This passage in Perry clearly identifies his nonpositivist views. He requires neither that the moral values that underwrite correct legal decisions in
hard human rights cases be enacted by the sovereign (made part of the law), nor that they be accepted by the sovereign. Such moral values exist and determine the correct answers to legal questions independently of what the sovereign believes or comes to believe. Perry thus rejects

The positivist interpretivist's response to bad laws is

both the sources thesis and the separability thesis. Rejecting these theses identifies his view as one that is nonpositivist. 31. Perry, p. 102. 32.

"Get the legislature to change them." This view has been expressed in several important Supreme Court
decisions concerning the standard of review. Justice Black, discussing a Kansas debt adjustment statute noted, "The Kansas debt statute may be wise or unwise. But relief, if any be needed, lies not with this body but with the body constituted to pass laws for the State of
Kansas." Ferguson v. Skrupa 372 U.S. 726, 732 (1963). Similarly, Justice Potter Stewart said of Connecticut's birth control statute, "I think this is an uncommonly silly law. . . . But we are not Between Clause-bound Literalism and Value Imposition 117 asked in this case to say whether we
think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do." Griswold v. Connecticut 381 U.S. 469, 527 (1965) (Justice Stewart dissenting). 33. H. Jones, "An Invitation to Jurisprudence," 74 Columbia L. Rev. 1023, 1031
(1974). 34. It should be noted that Jones's reference to state action doctrines implicitly endorses my view in that state action, as explicated for purposes of Fourteenth Amendment analysis, is a question of fundamental law. 35. Of course, such a reading of the First Amendment would
support Justice Black's rather extreme view that "no law" means no law and, accordingly, that all libel and slander laws are unconstitutional. 36. The text is, however, the best place to start, and, frequently, the final word on the matter. The constitutional text has a very special place in
U.S. political and legal theory, and any theory of judicial review that fails to take account of or that obscures that place is defective. Perhaps the single most devastating challenge that can be leveled against the American Legal Realists is that they give no account of the importance of legal
texts, including the constitutional text, in their account of law. 37. Perry, supra note 4, p. 115. 38. Some constitutional theorists have managed to read the available social science data so as to find that in 1954 the decision reached in Brown was, in fact, reflective of an actual consensus
existing in the U.S. public. Although I would like to believe that we do, in fact, live in an enlightened society, the data do not support such a belief. To be sure, there was in 1954 a growing uneasiness with state-enforced racial segregation, and the Court in Brown took an active role in the
reconsideration of a social policy. I think it at best fanciful, however, to suggest that the Brown decision actually reflected the views of a consensus of the people at the time that the decision was handed down. The Court in Brown initiated and shaped a new consensus, it did not reflect a
newly developed one. 39. The principal task of the judge is to decide cases properly brought before the court. One aphorism familiar to most beginning law students is that the judge is often in error but never in doubt. As disturbing as the claim may seem, a wrong decision from a judge
is, for systematic reasons, better than no decision at all. 40. A full discussion of the problem of normative gaps or normative closure is far beyond the scope of the present chapter. For those interested in this problem, however, some of the leading works on the topic are Carlos Alchourron
and Euginio Bulygin, Normative Systems, (Wein: Springer-Verlag_ 1971); Logique et Analyse N.S. 9 (1966) is devoted to the problem; Joseph Raz, The Authority of Law, ch. 5; and Julius Stone, Legal Systems and Lawyer's Reasonings (Stanford, Calif.: Stanford Univ. Press, 1964). 41. One
implication of embracing the existence of normative gaps in legal systems is that one must reject ~onald Dworkin's famous right answer thesis. The existence of legal gaps requires that there be cases within the jurisdiction of courts for which there is no uniquely correct legal resolution.
Whether one treats the existence of gaps as a beneficial or detrimental feature of a legal system is a separate question. What one must do, however, is accept that there are cases for which there is no right answer. 42. 2 Dall. 419 (1793). 118 H. Hamner Hill 43. 19 How. 393 (1857). 44. 157
u.s. 429 (1895). 45. 400 u.s. 112 (1970). 46. One should also recall President Andrew Jackson's rebuff of Chief Justice John Marshall: "Mr. Marshall has made his decision, let him enforce it." 47. J, Rawls, "Outline of a Decision Procedure for Ethics," 60 Phil. Rev. 177 (1951). 48. Stability in
law, particularly constitutional law, is a desirable trait. One does not want the standards of what is legal to change too rapidly. Accordingly, a tedious process like the amendment process, while allowing for expressions of the popular will, slows the rate of change. 49. See note 32, supra.
50. Learned Hand, "The Contribution of an Independent Judiciary to Civilization," in The Spirit of Liberty, I. Dillard, ed. (New York: Knopf, 1953), p. 165. 51. James Bradley Thayer, long an opponent of "judicial activism," argued at the tum of the century that "under no system can the power
of courts go far to save a people from ruin; our chief protection lies elsewhere." Thayer, unfortunately, did not indicate just where "elsewhere" might be. J. B. Thayer, "The Origin and Scope of the American Doctrine in Constitutional Law," in Legal Essays (Boston: Boston Book Co., 1908),
p. 39. SIX Toward a Public Values Philosophy of the Constitution STEPHEN M. GRIFFIN A relatively new type of constitutional theory involves applying moral and political philosophy to explain, justify, and criticize aspects of constitutional law. This chapter addresses a recent development
in this category of constitutional theory-the effort to construct a public values or "neorepublican" philosophy of the Constitution.1 The development of this philosophy is an attempt to articulate a distinct alternative to the democratic relativism that has dominated U.S. political and
constitutional thought in this century. 2 The proponents of a public values philosophy reject the political theory of interest group pluralism that awards political victory to the greatest aggregation of private preferences. They argue that the Constitution and the Bill of Rights presume "a
conception of the political process as an effort to select and implement public values."3 Public values can be understood as the common goals or aspirations of the American community, exemplified by the values contained in the Constitution. Despite the historical appeal of
neorepublicanism, its proponents have not so far been able to provide much content to the concept of a public value. A public values approach may also be usefully contrasted with traditional constitutional theory (which concerns itself with reconciling judicial review and democracy) in
that this approach seeks not merely to influence the constitutional practices of government, but to find a new audience for constitutional discussion among the citizens of the United States. The general idea is that public discussion over issues of constitutional principle should be
encouraged in the hopes of providing a more secure basis for the maintenance of freedom and equality. This encouragement of public discussion on constitutional, matters can be regarded as a democratization of political and constitutional theory, the aim of which is a greater degree of
awareness of constitutional values and participation in constitutional and political change. 119 120 Stephen M. Griffin The idea of a public values philosophy presents certain difficulties. For example, it is not immediately clear how the notion of a "public value" is to be distinguished from a
purely private preference. Further, because the objective of the political process from a public values viewpoint is to select those values, the question arises as to the nature of the institutions and practices required to ensure that this process is not unduly influenced by powerful
aggregations of private preferences. To see how these difficulties might be addressed and a public values philosophy elaborated, this chapter explores the public values alternative within the framework of Rawls's theory of justice.4 Five main topics are considered: the justification of
"public" values, the structure of Rawls's system of constitutional rights, the worth of liberty, whether judicial review can be justified within Rawls's theory, and the contrast between democratic relativism and a public values philosophy. PUBLIC VALUES AND THE ORIGINAL POSITION How
are public values to be distinguished from mere preferences? Rawls's theory provides a straightforward solution to this problem: A public value is a value that would be affirmed from the perspective of the original position. Unfortunately, Rawls's idea of an original position has proved
problematic, as it is the source of many misunderstandings. I will therefore offer an account of the original position that I hope will be less vulnerable to some standard objections. The original position is a set of appropriate conditions to govern the selection of principles of justice for the
basic structure of society. In trying to accurately and completely describe these conditions, the conception of the original position will inevitably appear as a philosophical ideal. But it is important to understand that the conditions specified are intended to be the restrictions on argument
we try to adhere to every time we reason about questions of social justice. When Rawls first introduces the concept of the original position, it is in terms of a social contract metaphor, an assembly of persons gathering to choose principles of justice.5 In the main, he continues to use the
original position as a social contract metaphor, speaking of "the parties" in the position and the like. But Rawls makes it quite clear that the original position should be interpreted so that anyone can assume its perspective at any time: [O]ne or more persons can at any time enter this
position, or perhaps, better, simulate the deliberations of this hypothetical situation, simply by reasoning in accordance with the appropriate restrictions .... To say that a certain conception of justice would be chosen in the original position is equivalent to saying that rational deliberation
satisfying certain conditions and restrictions would reach a certain conclusion. . . . It is important that the original position be interpreted so that one can at any time adopt its perspective. 6 A Public Values Philosophy of the Constitution 121 This is how I regard the original position: It is a
collection of restrictions on the kinds of arguments we may use to advocate or oppose given principles of justice. If we find these restrictions persuasive, we will employ them in reasoning about questions of justice, and they will affect the arguments we make in a real and nonhypothetical
fashion. One may think that what is hypothetical about the original position is the agreement that is made there, the hypothetical contract Rawls speaks of.7 Rawls is actually somewhat ambiguous on this point. When he tries to explain specifically why his theory is a social contract
theory, he justifies the term by referring to the fact that the theory must apply to many persons, must be a public conception of justice, and that persons are expected to adhere to the agreed principles. 8 But all of these conditions can be built into the original position as appropriate
conditions for argument without a contract ever occurring, real or hypothetical. Given the severe restrictions on information appropriate to reasoning about justice, there is no basis for bargaining or negotiation in the original position. The original position is thus the standpoint of one
person, who by virtue of the restrictions imposed on his or her reasoning (some of which are inspired by the social contract tradition), can be assured that his or her favored principles would be chosen by anyone adopting that standpoint. 9 It is thus misleading to characterize Rawls's
theory as a social contract theory if what is meant is that the principles of justice are derived from or justified through a contract, real or hypothetical. If the question is one of justification, Rawls is not best understood as a contractarian, and his theory is not best understood as a social
contract theory. The principles of justice do not acquire their initial justification from a hypothetical contract but from the moral force of the conditions on argument that make up the original position. The condition on argument that ensures the values selected will be public values is the
requirement that we must exclude the effects on our reasoning of information that prevents us from achieving an objective standpoint free of prejudice and bias (the "veil of ignorance"). It is not necessary to speak of hypothetical parties laboring under a sudden, mysterious denial of
knowledge. We simply take care not to support the arguments we make in favor of our preferred principles of justice (public values) with certain kinds of information. The information that Rawls excludes essentially relates to the characteristics of persons that form the basis for personal
preferences.10 Due to this restriction on information, the values selected in the original position are substantially independent of existing preferences. They are public values. For a public values philosophy, the question then arises whether the political system can be designed to
approximate the fairness of the original position. If this can be done, the political system will be able to properly fulfill its role of selecting public values. The next three sections explore aspects of Rawls's constitutional scheme in order to 122 Stephen M. Griffin determine how the political
system must be structured to fulfill this role. RAWLS'S SYSTEM OF CONSTITUTIONAL RIGHTS Rawls's first principle of justice, the principle of equal liberty, states that the social primary goods known as the basic liberties should be arranged to form the most extensive set of liberties
justifiable from the standpoint of the original position, and that the set of liberties should be distributed equally to all citizens. The content of the set of basic liberties is as follows: (1) liberty of conscience (including religious freedom); (2) the political liberties and freedom of association
(including the right to vote, to run for public office, freedom of speech, press, and assembly); (3) the liberty and integrity of the person (including the right to hold personal property, freedom from slavery, and freedom of movement and occupation); and (4) the rights and liberties covered
by the rule of law (including freedom from arbitrary arrest and seizure and all other liberties that may be usefully summarized under the heading of "due process"). 11 It appears that Rawls intends all of the basic liberties to be thought of as constitutional rights, rights that any just
constitution must contain. As Rex Martin has observed, however, Rawls does not provide us with an account of what he takes a "right," constitutional or otherwise, to be.12 Following Martin's Rawls-like theory. of rights then, we may define a right for Rawls as "an individual's legitimate
expectation as to what he would receive in a just institutional distribution of social primary goods."13 Further, in virtue of the list of basic liberties Rawls gives, we may characterize rights as things that belong to individuals as persons, "which can be individuated (parceled out, equally, to
the individuals within a certain class) in some determinate amount or to some determinate degree, under publicly recognized rules, such that the distribution of that [social primary] good can be guaranteed to each and every member of that class."14 All of Rawls's basic liberties-
constitutional rights meet these criteria. In his most recent articles, Rawls has used the fundamental capacities and highest order interests of moral persons to have an effective sense of justice and to form, revise, and pursue a conception of the good to justify recognition of his general
categories of constitutional rights.15 Rawls tends to think in terms of three categories: rights that are supported by the interest in having an effective sense of justice; rights that are supported by the interest in having a conception of the good; and rights that are necessary so that the
foregoing rights may be properly guaranteed.16 Thus, the political liberties and freedom of thought are supported primarily on the basis that they enable citizens to express their sense of justice. Liberty of conscience and freedom of association are supported primarily on the basis that
they enable citizens to have a conception A Public Values Philosophy of the Constitution 123 of the good. The rights connected with the liberty and integrity of the person and the various due process rights are necessary if the other rights are to be guaranteed.17 Together, these different
rights form a family or system of rights. As conflicts among the rights are inevitable, any right may be limited in the process of achieving a coherent system, and so no right is "absolute." There are no "preferred" rights in Rawls's theory. Further, Rawls does not assume that the entire
system of rights can be derived solely from the universal interests of a moral person. Deriving a more specific system is a complex process involving arguments from the perspective of the original position, establishing scopes and weights for the different rights, taking into account
constitutional considered judgments, and any appropriate facts and circumstances.18 Rawls simply remarks: "The historical experience of democratic institutions and reflection on the principles of constitutional design suggest that a practicable scheme of liberties can indeed be found."19
Rawls therefore holds that the priority of the basic constitutional rights is not infringed by drawing limits to regulate them into a coherent system of rights. Rules of order and regulations of "time, place, and manner" are all appropriate. Rights may also be restricted, which is to say that
they may be limited for the purpose of securing an even more extensive system of rights. There are two sorts of cases envisioned by Rawls: restrictions on the rights of political participation to protect other rights through the mechanisms of constitutionalism, and restrictions of an
emergency nature necessary to protect the entire system of rights in time of war or other constitutional crisis.20 Both cases are familiar enough in our constitutional law. Rawls sees "[t]he traditional devices of constitutionalism-bicameral legislature, separation of powers mixed with
checks and balances, a bill of rights with judicial review"21-as being adopted for a just constitution on the grounds that by limiting majority rule, the system of rights is made more extensive or more secure. The restriction is thus built directly into the constitution.22 By contrast, restricting
constitutional rights in an emergency involves interests extraneous to the system of rights, and such restrictions do not appear in the constitution. The sort of emergency Rawls has in mind is a very rare one, a constitutional crisis requiring "the more or less temporary suspension of
democratic political institutions, solely for the sake of preserving these institutions and other basic liberties."23 In a well-ordered society (or even in our own), such a crisis is unlikely to occur because such a society is a stable political order with a constitutional system flexible enough to
handle "normal" emergencies such as foreign wars or even internal rebellions. Rawls is skeptical of Supreme Court decisions that imply such a crisis existed at some point in U.S. history, and he concludes that such a crisis is unlikely to ever occur in the United States or in any well-ordered
society.24 124 Stephen M. Griffin THE WORTH OF LIBERTY So in a Rawlsian well-ordered society, all citizens possess a determinate bundle of guaranteed constitutional rights. Given the inequalities in economic goods allowed by the second principle of justice, however, each citizen does
not enjoy the same opportunity to exercise those rights. It appears that some citizens will be more able to pursue expensive conceptions of the good and that some citizens will have a greater ability to influence the political process. Rawls thinks of this difference between possessing a
right and the ability to exercise it as a distinction between liberty and the worth of liberty. The basic liberties (or, as we have seen, all basic rights) are guaranteed to even the most poor and uneducated in an equal manner by the first principle of justice. The inequalities allowed by the
second principle permit the worth of liberty to vary among the groups who possess different amounts of economic goods. 25 It is at this point that egalitarian or Marxist critics of Rawls pose a strong objection. Rawls appears to assume too easily that inequalities in economic goods are
compatible with equality in basic rights. What will the real "worth" of liberty be to someone who is one of the leastadvantaged members of society? What will prevent powerful individuals or economic interests from unduly influencing the political process? Inadequate material means will
often translate into a lack of political power. Why doesn't Rawls simply stipulate that all of the social primary goods be distributed so that the worth of the basic liberties is equal for everyone? Rawls attempts to meet this objection through his guarantee of the "fair value" of the political
liberties. In A Theory of Justice, his introduction of this idea seemed somewhat ad hoc. 26 Once we better understand the nature of Rawls's argument for the political liberties, however, we can see that his theory in fact requires that the worth of the political liberties be made as equal as
possible for all. Further, the requirement that the equal worth of the political liberties be guaranteed has important egalitarian implications for Rawls's theory as a whole. Although there are no rights with a preferred position in Rawls's system, the political liberties do hold a special place.
If we keep in mind several themes in the preceding discussion, it is not hard to understand why this is the case. The moral interest that chiefly supports the political liberties is the interest in exercising our sense of justice. Our sense of justice is the capacity that allows us to attain the
perspective of the original position and therefore to understand and apply the principles of justice. It thus has a central place in Rawls's theory. When we add to this the fact that the political process is responsible for the implementation of the two principles, the special role of the
political liberties becomes apparent. So far as possible, we want the political process to mirror "the fair representation of persons achieved by the A Public Values Philosophy of the Constitution 125 original position."27 Allowing inequalities in the political process would be similar to
allowing inequalities between persons in the original position. Such inequalities would be a severe violation of the equal status and dignity of individuals. Inequality would imply that those favored by it are somehow more worthy of exercising their sense of justice and governing society
than those less favored. We therefore arrive at the conclusion that the worth of the political liberties to all citizens must be equal, or as equal as possible. This guarantee of the "fair value" of the political liberties is similar to the idea of fair equality of opportunity in the second principle of
justice.28 Absolute equality is not to be expected, but we take whatever steps we can to ensure that everyone has a fair chance to hold public office, to be informed about political issues, to place items on the public agenda, and to generally influence the political process. Rawls suggests
that the following measures be considered: "Property and wealth must be kept widely distributed" ;29 and political parties must be kept independent of concentrations of private economic power, public financing of campaigns and elections, limits on political contributions, and subsidies
to encourage a full airing of opinions on public issues.30 He remarks Historically one of the main defects of constitutional government has been the failure to insure the fair value of political liberty. The necessary corrective steps have not been taken, indeed, they never seem to have been
seriously entertained. Disparities in the distribution of property and wealth that far exceed what is compatible with political equality have generally been tolerated by the legal system. Public resources have not been devoted to maintaining the institutions required for the fair value of
political liberty. 31 The concept of guaranteeing the fair value of the political liberties is a powerful one. Under certain assumptions, it can become a mighty egalitarian engine. Rawls implies at some points that the inequalities allowed by the full operation of the second principle will still
be too great to be tolerated under the fair value standard.32 The fair value argument implies that if a completely equal distribution of social primary goods is the only means of attaining the equal worth of the political liberties, then that is what ought to be done. Perhaps this is why Rawls
puts his main emphasis on policies that compensate for inequality (rather than working on inequality directly) in his suggestions for how to implement the fair value guarantee. In any case, the fair value argument is an important one for a public values philosophy. For to carry out the
public values vision, we must have a political process that is free of the distorting inequalities caused by private power. The general character of Rawls's discussion suggests just how far our current political process is from ensuring the fair value of the political liberties, and thus just how
much of a critical perspective a public 126 Stephen M. Griffin values philosophy must have. A recent careful study of U.S. politics produced this sobering conclusion: The power shift that produced the fundamental policy realignment of the past decade did not result from a conservative or
Republican realignment of the voters; nor did it produce such a realignment after the tax and spending legislation of 1981 was enacted. Rather, these policy changes have grown out of pervasive distortions in this country's democratic political process. These distortions have created a
system of political decisionmaking in which fundamental issues . . . are resolved by an increasingly unrepresentative economic elite.33 Rawls's theory may be described in many ways, but one inappropriate description is that it is a defense of the status quo. It is quite clearly a powerful
critique of our political system, a critique all the more compelling because its theoretical base is firmly within the domain of liberalism.34 JUSTIFYING JUDICIAL REVIEW In designing just institutions for a Rawlsian constitutional system, the fundamental principle to bear in mind is the
guarantee of equal, basic rights to all. All considerations of constitutional and political design are subordinate to this principle. The general objective is to establish a governmental system that will preserve the most extensive system of basic rights possible and lead to just legislation. To do
this, we try insofar as possible to reproduce the fairness of the perspective of the original position within the constitutional system. As just discussed, this implies strong measures to keep the legislative-political process free from the influence of concentrations of private power. As we
have already seen, Rawls thinks it plausible that the traditional mechanisms of constitutionalism can be justified as desirable elements of a just constitution. Note, however, the nature of this justification. As prima facie restrictions on the equal political liberties, all of the devices of
constitutionalism (a written constitution, bicameral legislature, separation of powers, a bill of rights, judicial review) are equally suspect. All must be justified on the ground that the restrictions they entail provide a greater degree of protection to the other liberties than would be available

If liberties are not guaranteed

under a system of bare majority rule. Majority rule as such has no special place. It is dependent for its justification on the fundamental importance of the political liberties. those , then the conditions of

the justness of any legislation enacted

background political justice are not met, and is in severe doubt So judicial review is by the majority . 35

justifiable This
for Rawls if it ensures a more extensive system of rights. But can we be more specific than this? We must bear in mind that, at best, Rawls's theory can only provide us with a general justification for judicial review. means a justification for a practice

allows the judicial branch of government to nullify acts of legislation

that . A Public Values Philosophy of the Constitution 127 Rawls's theory does not provide us with a
basis for saying whether the judiciary should be elected, how it should construe the constitution, whether a special vote of the legislature could override certain judicial decisions, and so on. These are matters that lie beyond the theory of justice, matters of practical constitutional design.
We can say that, in comparison to the legislature, it is easier for the judiciary to mirror the fair representation of persons achieved by the original position. This is the ideal we are trying to achieve in designing the constitutional system. Striving for this ideal in the legislative process
requires a complex system of restraints and compensatory devices. By contrast, the nature of constitutional adjudication is such that formally, persons are already equal. As Lawrence Sager has said of this process: "It is irrelevant that a claimant is despised or revered, or even that his is a
claim shared by many or held in solitude."36 Judges are commonly said to have a duty to act fairly, impartially, objectively, and to exercise their sense of justice wisely. This perspective is precisely the one persons adopt in the original position. If this perspective is already at least partially

we have strong grounds for saying that judicial review

built into the institution of the judiciary, then stands on as firm a is compatible with Rawls's theory and

footing as the power of the legislature to enact legislation. Of course, the courts cannot play the same
role as the legislature The courts cannot enact legislation or act on their own to create
in guaranteeing the system of rights.

cases. no branch of government has a monopoly

Further, Rawls makes it clear that on constitutional interpretation: In a democratic society, then, it is recognized that each citizen is responsible for his

not even a supreme court

interpretation of the principles of justice and for his conduct in the light of them. There can be no legal or socially approved rendering of these principles that we are always morally bound to accept, when it is given by

or legislature the court, puts forward its interpretation

. Indeed each constitutional agency, the legislature, the executive, and of the constitution and the political ideals that inform it.

Although the court may have the last say in settling any particular case, it is not immune from powerful political influences that may force a revision

the
of its reading of the constitution. The court presents its doctrine by reason and argument; its conception of the constitution must, if it is to endure, persuade the major part of the citizens of its soundness. The final court of appeal is not the court, nor the executive[,) [n)or

legislature , but the electorate as a whole.37

The Supreme Court agrees

Antonin Scalia, 2 – Supreme Court Justice, writing for the majority; currently he is dead (Branch v.
Smith, 538 U.S. 254, 12/10/2, Nexis Uni //DH

[6A] Section 5 provides that HN4 "whenever a [covered jurisdiction] shall enact or seek to [**1437]
administer" a voting change, such a change may be enforced if it is submitted to the [****21] Attorney
General and there is no objection by the Attorney General within 60 days. 42 U.S.C. § 1973(c) (emphasis
added). Clearly the State Chancery Court's redistricting plan was not "enacted" by the State of
Mississippi. An "enactment" is the product of legislation, not adjudication. See Webster's New
International Dictionary 841 (2d ed. 1949) (defining "enact" as "to make into an act or law; esp., to
perform the legislative act with reference to (a bill) which gives it the validity of law"); Black's Law
Dictionary 910 (7th ed. 1999) (defining "legislate" as "to make or enact laws"). The web of state and
federal litigation before us is the consequence of the Mississippi Legislature's failure to enact a plan. The
Chancery Court's redistricting plan, then, could be eligible for preclearance only if the State was "seeking
to administer" it.

Congress won’t risk confronting SCOTUS and repeat rulings solve – empirics.
Dorf ‘11 (Michael C. Dorf, Robert S. Stevens Professor of Law at Cornell University Law School, Newt Gingrich Is Right That Judicial
Supremacy Has Been Challenged Before, but Wrong to Try to Turn Back the Clock, DECEMBER 28, 2011,
https://verdict.justia.com/2011/12/28/newt-gingrich-is-right-that-judicial-supremacy-has-been-challenged-before-but-wrong-to-try-to-turn-
back-the-clock)

The rubber meets the road for departmentalists when political actors want to take the very action that
the courts have already ruled unconstitutional. At that point, departmentalism can undermine judicial independence. To see
why, consider what happens when a state legislature, Congress, or the President attempts to act on a departmentalist view. Suppose that
Congress disagrees with a Supreme Court ruling invalidating a law , as Congress disagreed with the 1989
ruling in Texas v. Johnson that the First Amendment’s protection for freedom of speech includes the
right to burn an American flag. Congress responded by passing a new law banning flag burning, acting on
its different interpretation of the First Amendment . One way we can understand the new federal law is as an
effort by Congress to persuade the Court to change its mind . In this instance, the Court accepted the
invitation to reconsider but then reaffirmed the Johnson holding in United States v. Eichman. Congress
then took no for an answer and stopped enacting statutes that it knew would be struck down. Some
members of Congress proposed amending the Constitution to ban flag-burning, but those efforts failed, even after they were repeatedly
renewed. Eventually, the
issue died because Congress was not willing to insist on an all-out confrontation
with the Court. According to Gingrich, Congress threw in the towel much too early. It could, he says, have summoned the Justices who
voted in the majority in Johnson and Eichman to appear before Congress. It could have stripped the courts of jurisdiction to hear constitutional
challenges to laws forbidding flag-burning. It could have impeached judges and Justices who did not bow to its will. And, even without
impeachment, it could have abolished the judgeships and seats on the Supreme Court that were held by jurists who disagreed with Congress. A
Gingrich campaign position paper argues that Congress should not be afraid to use these tools.

Congress complies.
Daniel E. Walters 15. Regulation Fellow in the Penn Program on Regulation at the University of
Pennsylvania Law School. 2016/2015. “The Judicial Role in Constraining Presidential Nonenforcement
Discretion: The Virtues of an APA Approach.” University of Pennsylvania Law Review, vol. 164, pp. 1911–
1948.

Another indirect inherent virtue of the possibility of judicial review under the APA is that it creates incentives
for Congress to assume responsibility for specifying the level of enforcement it desires. Under existing case law, it is clear
that mandatory language in statutes will ordinarily carry the day in court even when resource allocation concerns are an issue.112 Although
Congress may not be entirely aware of how clear this line of cases is,113 and even though Congress may ultimately still prefer to avoid
mandatory language for political reasons, the nearly guaranteed judicial review when Congress uses mandatory language, such as "shall
enforce" and the like, provides incentives for Congress to be specific in legislation.114 In the end, it seems that APA inaction review
could
very well augment the political process controls that scholars such as Andrias, Love, and Garg advocate for, using newer,
untested institutions and processes.11 5 Thus, even if political process controls are the best way to constrain purposive
presidential inaction, there is still a good case to be made that courts can reinforce these controls through the use of
the APA.

Court cases govern police conduct.

Wyllie ’20
(Doug is the 2014 Western Publishing Association “Maggie Award” winner for Best Regularly Featured
Digital Edition Column, and has authored more than 1,000 articles and tactical tips. Doug is a member of
International Law Enforcement Educators and Trainers Association (ILEETA), an Associate Member of the
California Peace Officers’ Association (CPOA), and a member of the Public Safety Writers Association
(PSWA). “5 Supreme Court cases the police and the public should know” 2/20/20.
https://www.policeone.com/law-enforcement-policies/articles/5-supreme-court-cases-the-police-and-
the-public-should-know-CZ0QsFxmsG66A4rX/)$

In fact, the sheer volume of legal information police officers are required to know and be able to apply –
sometimes in a split second – in the conduct of their job on a day-to-day basis is staggering. Every state
and city has its own penal codes, which must be committed to memory and utilized in an infinite
number of scenarios. Then there’s case law – court decisions – that govern police conduct. Court
decisions may vary in different jurisdictions. Sometimes the Supreme Court decides to settle these
differences. For example, Miranda warnings came from a Supreme Court decision: Miranda v. Arizona.
Cops have to know their state and Supreme Court law and articulate how they apply the laws to the
decisions they make out on the street. Here are five United States Supreme Court rulings that most cops know...and wish the
American people did too. USE OF FORCE The Supreme Court has ruled on numerous occasions on police use of force as it relates to the Fourth
Amendment, but the two most important cases are probably Graham and Garner. Let’s review both. 1. Graham v. Connor In Graham, the
Supreme Court established what has become known as the “objectively reasonable standard” when it held that “the ‘reasonableness’ of a
particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” When it comes to use of force cases, Graham is probably the most important, and yet following a high-profile use of force, this case
is almost never mentioned – nor is it likely to be well understood – by the mainstream media. If we could change one thing in the minds of the
press, the public and the politicians, it would likely be to give them a thorough education on Graham. I put Graham at number one for a reason.
It’s time for police to take back the narrative. It is imperative that police go beyond simply including Graham in citizen academies. It has to be
articulated in press conferences, PSAs and elsewhere. 2. Tennessee v. Garner In Garner, the court held that when a police officer is pursuing a
fleeing suspect, he or she may NOT use deadly force to prevent escape “unless the officer has probable cause to believe that the suspect poses
a significant threat of death or serious physical injury to the officer or others.” This decision, which reversed a Tennessee statute that allowed
the use of deadly force on any fleeing felon – even those who posed no imminent danger to anyone – has helped inform the creation of use of
force policy across the country. Officers who use deadly force on a fleeing felon must be able to articulate probable cause that the subject
posed a significant threat of death or serious physical injury at the time of the use of force. When there is media coverage of a video of a cop
shooting someone in the back, police executives and experts need to explain why that officer might have reasonably believed that person
posed a significant threat of death or serious physical injury. SEARCH AND SEIZURE The Fourth Amendment not only covers use-of-force cases
such as those addressed in Graham and Garner. The Fourth Amendment also guarantees the right of the people “to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures...” Here are a few cases related to the search and seizure of those
persons, houses, papers, and effects. 3. Terry v. Ohio In recent years, there has been much public outcry over what has become known as the
practice of “stop and frisk.” People claim that such activities by police are illegal. Not so. If a police officer has a "reasonable suspicion" based on
specific articulable facts that a person or persons has committed, is committing, or is about to commit a crime and “may be armed and
presently dangerous,” police may stop them and perform a surface search – a frisk or pat-down. The Court has found that the Fourth
Amendment is not violated by this conduct – it’s not unreasonable. Police – in their reports and statements to the media – need to be able to
articulate specific facts justifying their stop and frisk under Terry so that such law enforcement efforts cannot be mischaracterized as “racial
profiling.” The American people should know that when a cop performs a stop and frisk, it’s for a reason – they’re not doing it arbitrarily. 4.
Weeks v. United States In this 1914 case, the Court established the "exclusionary rule" when it held that evidence seized by federal authorities
in violation of an individual’s Fourth Amendment rights may not be used against them in criminal prosecution. Prior to that, the criminal justice
system had sought to rely on disciplinary actions by police employers – or civil suits by suspects – as a disincentive for police misconduct. The
Court decided this extra disincentive was necessary as the other disincentives did not appear to be effective. The decision also stated that
federal authorities may not enlist the assistance of local police to secure warrantless evidence on their behalf and turn it over to them. This
case was later augmented by the case of Silverthorne Lumber Co. v. United States in which the Court extended the basic principal of the
exclusionary rule to the "fruits of the poisonous tree," and in Mapp v. Ohio the Court extended both concepts to the states under the due
process protection of 14th Fourteenth Amendment. 5. Carroll v. United States In Carroll, the Court established the "automobile exception" to
Fourth Amendment protections against warrantless searches. In this Prohibition-era case, the Court noted the inherent difference between
buildings and vehicles – buildings remain stationary while cars and other vehicles can be moved and hidden before a warrant can be issued. The
Court held that if officers have probable cause that an automobile contains evidence of a crime, the vehicle in question can be searched
without a warrant. Citizens can refuse to give consent to a search of their car, but if the officer has probable cause they can search it without
consent. CONCLUSION Case law on how police operate is continually decided – and revisited . When police
operate within their understanding of the United States Constitution – as well as within their agency
policies, procedures, training and tactics – the nation’s highest court largely sides with those officers
who are charged with the heroic task of protecting life and property. A lot of police officers would be
very pleased to hear that the public, the press and the politicians who decry police misconduct had
suddenly become well-versed with these and other decisions. But that’s not going to happen on its own.
Because these important decisions are misunderstood by the media and the public, it would behoove
police to change that by educating them.

1) Absent a shift in funding, publics will demand resources go back into policing
Vitale, 20 - Alex S. Vitale is professor of sociology and coordinator of the Policing and Social Justice
Project at Brooklyn College. He is the author of The End of Policing (“The Best Way to “Reform” the
Police Is to Defund the Police” Jacobin, June, https://jacobinmag.com/2020/06/defund-police-reform-
alex-vitale

MD
Polls consistently show that even though many people, especially people of color and in particular black
people, distrust the police, they don’t actively want the number of officers in their neighborhood
reduced. I suspect that disconnect owes to people’s automatic equation of police with safety: people
want to feel safer, and policing is the only solution to public safety on offer. Why do you think this gap
exists, and how do we bridge it?

AV

I think it’s analogous to the situation with Bernie Sanders. You saw the exit polls showing that people
liked Sanders’s ideas but voted for Biden. They’re afraid. They’re not ready. They have a stake in
conformity and they don’t trust this new thing, even though on some level they understand and believe
in it.

When it comes to police, we’re dealing with a forty-year legacy of people being told that the only thing
they can have to fix any problem in their neighborhood — loose dogs, noise complaints, rowdy
teenagers — is more police. That’s the only option. So people have been conditioned to think, “Oh, if I
have a problem, it’s a problem for the police to solve.” When people say they want police, they’re saying
they want fewer problems.

We really have to break out of this thinking. We have to empower people to actually ask for what they
want, and we also have to equip people with more examples of things that they could demand that
would actually make their communities healthier and safer. A lot of people would agree that it would be
better if they had a new community center, for example. They just don’t believe it’s possible. They think,
“There’s no point asking for that, cause they’re never going to give us that.”

We need to be putting concrete alternatives out there. For example, mental health crisis calls have
become major part of what police to every day in New York City. There are seven hundred of them a
day. We don’t need police to do that work, and in fact we don’t want armed police doing that work,
because it’s dangerous for people having mental health crises. We need to create a twenty-four-hour
non-police mental health crisis response system. Jumaane Williams in New York City has called for
exactly that in an excellent detailed report. The proposal is to take the money that’s spent on police
crisis calls and shift it over to delivering mental health services.

It’s a concrete idea for an alternative to policing. We need more of those to instill a sense of possibility
and optimism, and broaden people’s imaginations.
 1nr
Escalates every hotspot.
Castellaw ’17 (John; Founder and CEO of Farmspace Systems LLC, a provider of precision agricultural aerial services, former President
of the non-profit Crockett Policy Institute, member of the Center for Climate and Security’s Advisory Board and the National Security Advisory
Council of the U.S. Global Leadership Coalition; 36-year Lieutenant General in the United States Marine Corp; 5/1/17; “Opinion: Food Security
Strategy Is Essential to Our National Security”; https://www.agri-pulse.com/articles/9203-opinion-food-security-strategy-is-essential-to-our-
national-security; AgriPulse; accessed 11/11/18; TV)

The United States faces many threats to our National Security. These threats include continuing wars with
extremist elements such as ISIS and potential wars with rogue state North Korea or regional nuclear power Iran. The
heated economic and diplomatic competition with Russia and a surging China could spiral out of control.
Concurrently, we face threats to our future security posed by growing civil strife, famine, and refugee and migration
challenges which create incubators for extremist and anti-American government factions. Our response cannot be
one dimensional but instead must be a nuanced and comprehensive National Security Strategy combining all elements of National
Power including a Food Security Strategy. An American Food Security Strategy is an imperative factor in reducing the
multiple threats impacting our National wellbeing. Recent history has shown that reliable food supplies and stable prices
produce more stable and secure countries. Conversely, food insecurity, particularly in poorer countries, can lead to
instability, unrest, and violence. Food insecurity drives mass migration around the world from the Middle
East, to Africa, to Southeast Asia, destabilizing neighboring populations, generating conflicts, and threatening
our own security by disrupting our economic, military, and diplomatic relationships. Food system shocks from
extreme food-price volatility can be correlated with protests and riots. Food price related protests toppled
governments in Haiti and Madagascar in 2007 and 2008. In 2010 and in 2011, food prices and grievances related to food
policy were one of the major drivers of the Arab Spring uprisings. Repeatedly, history has taught us that a strong
agricultural sector is an unquestionable requirement for inclusive and sustainable growth, broad-based
development progress, and long-term stability. The impact can be remarkable and far reaching. Rising income, in
addition to reducing the opportunities for an upsurge in extremism, leads to changes in diet, producing demand for more diverse and nutritious
foods provided, in many cases, from American farmers and ranchers. Emerging markets currently purchase 20 percent of U.S.
agriculture exports and that figure is expected to grow as populations boom. Moving early to ensure stability in
strategically significant regions requires long term planning and a disciplined, thoughtful strategy. To combat current threats and
work to prevent future ones, our national leadership must employ the entire spectrum of our power including
diplomatic, economic, and cultural elements. The best means to prevent future chaos and the resulting instability is
positive engagement addressing the causes of instability before it occurs. This is not rocket science. We know where the
instability is most likely to occur. The world population will grow by 2.5 billion people by 2050. Unfortunately, this massive
population boom is projected to occur primarily in the most fragile and food insecure countries. This alarming
math is not just about total numbers. Projections show that the greatest increase is in the age groups most vulnerable to
extremism. There are currently 200 million people in Africa between the ages of 15 and 24, with that number expected to double in the
next 30 years. Already, 60% of the unemployed in Africa are young people. Too often these situations deteriorate into shooting
wars requiring the deployment of our military forces. We should be continually mindful that the price we pay for committing
military forces is measured in our most precious national resource, the blood of those who serve. For those who live in rural America, this has a
disproportionate impact. Fully 40% of those who serve in our military come from the farms, ranches, and non-urban communities that make up
only 16% of our population. Actions taken now to increase agricultural sector jobs can provide economic opportunity
and stability for those unemployed youths while helping to feed people. A recent report by the Chicago Council on Global Affairs
identifies agriculture development as the core essential for providing greater food security, economic growth, and
population well-being. Our activesupport for food security, including agriculture development, has helped
stabilize key regions over the past 60 years. A robust food security strategy, as a part of our overall security strategy, can
mitigate the growth of terrorism, build important relationships, and support continued American economic and
agricultural prosperity while materially contributing to our Nation’s and the world’s security.

a. Turns systemic racism - Nuclear war is the quickest path to black genocide.
Nicole Akoukou Thompson 18 Chicago-based creative writer. 4-6-2018. "Why I will not allow the fear
of a nuclear attack to be white-washed." RaceBaitR. http://racebaitr.com/2018/04/06/2087/#

I couldn’t spare empathy for a white woman whose biggest fear was something that hadn’t happened yet
and might not. Meanwhile, my most significant fears were in motion: women and men dying in cells after
being wrongly imprisoned, choked out for peddling cigarettes, or shot to death during ‘routine’ traffic stops. I twitch when
my partner is late, worried that a cantankerous cop has brutalized or shot him because he wouldn’t prostrate himself. As a woman of
color, I am aware of the multiple types of violence that threaten me currently—not theoretically. Street
harassment, excessively affecting me as a Black woman, has blindsided me since I was eleven. A premature body meant being
catcalled before I’d discussed the birds and the bees. It meant being followed, whistled at, or groped. As an adult, while
navigating through neighborhoods with extinguished street lights, I noticed the correlation between women’s safety and street lighting—as
well as the fact that Black and brown neighborhoods were never as brightly lit as those with a more significant white population. I move quickly
through those unlit spaces, never comforted by the inevitable whirl of red and blue sirens. In fact, it’s always been the contrary. Ever so often,
cops approach me in their vehicle’s encouraging me to “Hurry along,” “Stay on the sidewalk,” or “Have a good night.” My spine stiffening, I
never believed they endorsed my safety. Instead, I worried that I’d be accused of an unnamed accusation, corned by a cop who preys on Black
women, or worse. A majority of my 50-minute bus ride from the southside of Chicago to the north to join these women for the birthday
celebration was spent reading articles about citywide shootings. I began with a Chicago Tribute piece titled “33 people shot, seven fatally, in 13
hours,” then toppled into a barrage of RIP posts on Facebook and ended with angry posts about police brutality on Tumblr. You might guess, by
the time I arrived to dinner I wasn’t in the mood for the “I can’t believe we’re all going to die because Trump is an idiot” shit. I shook my head,
willing the meal to be over, and was grateful when the check arrived just as someone was asking me about my hair. My thinking wasn’t all too
different from Michael Harriot’s ‘Why Black America Isn’t Worried About the Upcoming Nuclear Holocaust.” While the meal was partly
pleasant, I departed thinking, “fear of nuclear demolition is just some white shit.” Sadly, that thought would not last
long. I still vibe with Harriot’s statement, “Black people have lived under the specter of having our
existence erased on a white man’s whim since we stepped on to the shore at Jamestown Landing.” However, a
friend—a Black friend—ignited my nuclear paranoia by sharing theories about when it might happen and who faced the greatest threat. In an
attempt to ease my friend’s fear, I leaned in to listen but accidentally toppled down the rabbit hole too. I forked through curated news feeds. I
sifted through “fake news,” “actual news,” and foreign news sources. Suddenly, an idea took root: nuclear
strike would
disproportionately impact Black people, brown people, and low-income individuals. North Korea
won’t target the plain sight racists of Portland, Oregon, the violently microaggressive liberals of the rural
Northwest, or the white-hooded klansmen of Diamondhead, Mississippi. No, under the instruction of the
supreme leader Kim Jong-un, North Korea will likely strike densely populated urban areas, such as Los
Angeles, Chicago, Washington D.C., and New York City. These locations stand-out as targets for a nuclear strike because
they are densely populated U.S. population centers. Attacking the heart of the nation or populous cities would
translate to more casualties. With that in mind, it’s not lost on me that the most populous cities in the United States
boast sizeable diverse populations, or more plainly put: Black populations. This shit stresses me out! There’s a
creeping chill that follows me, a silent alarm that rings each time my Google alert chimes letting me know that Donald Trump has yet again
provoked Kim Jong-Un, a man who allegedly killed his very own uncle. I’ve grown so pressed by the idea of nuclear holocaust that my partner
and I started gathering non-perishables, candlesticks, a hand-crank radio, and other must-buy items that can be banked in a shopping cart.
The practice of preparing for a nuclear holocaust sometimes feels comical, particularly when
acknowledging that there has long been a war on Black people in this country. Blackness is bittersweet in flavor.
We are blessed with the melanized skin, the MacGyver-like inventiveness of our foremothers, and our blinding brightness—but the anti-
blackness that we experience is also blinding as well as stifling. We
are stuck by rigged systems, punished with the prison
industrial complex, housing discrimination, pay discrimination, and worse. We get side-eyes from
strangers when we’re “loitering,” and the police will pull us over for driving “too fast” in a residential neighborhood.
We get murdered for holding cell phones while standing in our grandmother’s backyard. The racism that strung up
our ancestors, kept them sequestered to the back of the bus and kept them in separate and unequal
schools still lives. It lives, and it’s more palpable than dormant. To me, this means one thing: Trump’s America
isn’t an unfortunate circumstance, it’s a homecoming event that’s hundreds of years in the making, no matter how
many times my white friends’ say, “He’s not my president.” In light of this homecoming, we now flirt
with a new, larger fear of a Black genocide. America has always worked towards Black eradication
through a steady stream of life-threatening inequality, but nuclear war on American soil would be
swift. And for this reason I’ve grown tired of whiteness being at the center of the nuclear conversation.
The race-neutral approach to the dialogue, and a tendency to continue to promote the idea that
missiles will land in suburban and rural backyards, instead of inner-city playgrounds, is false. “The Day
After,” the iconic, highest-rated television film in history, aired November 20, 1983. More than 100 million people tuned in to watch a film
postulating a war between the Soviet Union and the United States. The film, which would go on to affect President Ronald Reagan and
policymakers’ nuclear intentions, shows the “true effects of nuclear war on average American citizens.” The Soviet-targeted areas featured in
the film include Higginsville, Kansas City, Sedalia, Missouri, as well as El Dorado Springs, Missouri. They depict the destruction of the central
United States, and viewers watch as full-scale nuclear war transforms middle America into a burned wasteland. Yet unsurprisingly, the
devastation from the attack is completely white-washed, leaving out the more likely victims which are
the more densely populated (Black) areas. Death tolls would be high for white populations, yes, but
large-scale losses of Black and brown folks would outpace that number, due to placement and poverty.
That number would be pushed higher by limited access to premium health care, wealth, and resources.
The effects of radiation sickness, burns, compounded injuries, and malnutrition would throttle Black and
brown communities and would mark us for generations. It’s for that reason that we have to do more to
foster disaster preparedness among Black people where we can. Black people deserve the space to
explore nuclear unease, even if we have competing threats, anxieties, and worries. Jacqui Patterson, Director
of the Environmental and Climate Justice Initiative, once stated: African American communities are disproportionately
vulnerable to and impacted by natural (and unnatural) catastrophes. Our socio-economic vulnerability is
based on multiple factors including our lack of wealth to cushion us, our disproportionate
representation in lower quality housing stock, and our relative lack of mobility, etc.

Transportation funding will likely pass now.

Wehrman 9/8 (Jessica, Roll Call. “Highway bill could hitch a ride on the continuing resolution.”
https://www.rollcall.com/2020/09/08/highway-bill-could-hitch-a-ride-on-the-continuing-resolution/)

With weeks to go before the current surface transportation authorization expires, the biggest mystery is
increasingly whether an extension will be passed as a standalone measure or as part of a likely
continuing resolution to avert a partial government shutdown.

Congressional Democrats and Republicans have signaled that they see an extension of the current law as
inevitable, and the White House, in a four-page document released Sept. 3, indicated its willingness to extend the current highway law as
part of a continuing resolution if Congress does not do so on its own.

The current highway law expires Sept. 30.

House Transportation and Infrastructure Chairman Peter A. DeFazio, D-Ore., said

he would support a one-year extension to
the current authorization. but it’s unclear whether he backs adding it to a continuing resolution.

Ranking Republican Sam Graves, R-Mo., meanwhile, backs

an extension of “at least a year” according to his spokesman, Justin
Harclerode, and believes it “makes sense” to attach the extension to the continuing resolution.
“Graves believes that, in the absence of a new, bipartisan multiyear reauthorization, an extension of at least a year is critical for providing some
stability to states, stakeholders, workers, and the 2021 construction season,” he said.
And Sen. John Barrasso, R-Wyo., the chairman of the Senate Environment and Public Works Committee, is also open to an
extension of at least a year, according to a spokeswoman for the committee.
“Chairman Barrasso believes it is critical that the authorization for federal highway funding not expire or be replaced with month-to-month
extensions,” said EPW spokeswoman Sarah Durdaller.

The Senate EPW panel last year unanimously approved a $287 billion, five-year surface transportation bill, but the full Senate has not yet taken
up the measure. Three other Senate committees with jurisdiction — Senate Commerce, Science and Transportation; Senate Banking, Housing
and Urban Affairs; and Senate Finance — also have yet to act.

The House, meanwhile, passed a five-year, $494 billion bill on July 20, but without Republican support.

Durdaller said Barrasso

is still committed to the bill passed by his committee, but, “if a multiyear bill can’t be
agreed to before September 30, 2020, then an extension should run for at least a year to avoid
unnecessary disruptions in construction and planning .”

While it’s unclear whether the surface transportation bill will be included in the continuing resolution , the
White House has signaled its desire to include one other significant transportation change in the spending bill.

Limited time to get a full-year extension – they’re up against the clock

Ichniowski 8/24 (Tom Ichniowski has been writing about the federal government as ENR’s
Washington Bureau Chief since the George H.W. Bush administration, and he has covered at least five
major highway bills. “Deadline Near, Industry Groups Seek One-Year Highway-Transit Bill.”
https://www.enr.com/articles/49920-with-time-short-industry-groups-push-one-year-highway-transit-
extension)

With few congressional legislative days remaining before the federal highway and transit authorization
law expires on Sept. 30, a major construction coalition is turning to a push for Plan B—a one-year
extension for surface transportation programs, at increased funding levels.
The Transportation Construction Coalition, which the Associated General Contractors of America (AGC) and American Road & Transportation
Builders Association (ARTBA) co-chair, met on Aug. 17 and agreed on three “principal messages,” according to an AGC newsletter.

They are: a one-year extension of the current law, the 2015 Fixing America’s Surface Transportation, or FAST, Act, including a funding hike;
revenue provisions to keep the struggling Highway Trust Fund solvent; and money to offset state transportation departments' coronavirus-
related downturns in motor-fuels taxes and other revenue that support road building programs.

Brian Turmail, an AGC spokesman, says, “We’re just trying to zero in on what is the most realistic, achievable goal.” He adds that at this point, a
one-year bill, to take care of immediate highway and transit needs, “is probably the most realistic
solution, even as we continue to lay the groundwork for some kind of longer-term bill."
Jay Hansen, executive vice president for advocacy at coalition member National Asphalt Pavement Association, notes that when Congress
returns from its break, lawmakers will have 10 or 11 legislative days before the FAST Act expires.

"There’s no way we're going to get a full reauthorization bill” by then, Hansen says. “ We’re up against
the clock.”
Congress has made some progress to date on a multi-year measure. The House on July 1 approved a $1.5-trillion, five-year comprehensive
infrastructure package, which includes $494 billion for surface transportation.

In the Senate, the Environment and Public Works Committee on July 30, 2019 cleared a five-year $287-billion highway bill. But in the months
since then, the Senate banking committee, which has jurisdiction over transit, and the commerce committee, which oversees highway safety
programss, have yet to move their parts of the overall legislation.
Given that picture, Hansen says, “We have to pivot, and in pivoting, we have to do what’s in the best interests of the construction industry.
The best thing for the construction industry and for the state transportation departments is a full-year
extension."

We will that now is key – that’ll be on the bill solvency debate.

Flwos neg
2ac Ichiniowski, 9-14 (Tom Ichniowski has been writing about the federal government as ENR’s Washington Bureau Chief since
the George H.W. Bush administration, and he has covered at least five major highway bills. A recognized expert on government policy on
infrastructure and regulation, Tom is also a Baltimore native and Orioles fan who grew up rooting for Brooks and Frank Robinson. He is a
graduate of Columbia College and Columbia’s graduate school of journalism, where he once used “unrelentless” in a headline., "Will FAST Act
Extension Hitch a Ride on a CR?," No Publication, https://www.enr.com/articles/50045-will-fast-act-extension-hitch-a-ride-on-a-cr, 9-14-2020)
AT

When construction and transportation officials look at the calendar, their eyes are riveted on Sept. 30, when the current highway-transit authorization bill, the 2015
Fixing America's Surface Transportation, or FAST, Act is due to lapse. Sept.
30 also marks the end of fiscal year 2020 and the date
by which Congress must pass at least a temporary appropriations extension, to avert a government
shutdown. Industry groups are hoping Congress will resolve both issues with one bill: a stopgap overall spending package that also extends the FAST Act for a
year. A stopgap continuing resolution , or CR, has been under negotiation and is expected to be

considered by the full House during the week of Sept. 21, a House Democratic aide told ENR via email on Sept. 14. On the
FAST Act front, political realities, and the shortage of time, had led industry groups to shift tactics, for
now, from lobbying for their goal of a multi-year, well-funded bill. Instead they are pushing for a one-
year extension. Susan Howard, American Association of State Highway and Transportation Officials (AASHTO) program director for transportation finance,
says AASHTO, industry and Capitol Hill “are coalescing around the desire to have a one-year extension of the FAST Act.” For example, Senate Environment and
Public Works Committee Chairman John Barrasso (R-Wyo.) prefers the five-year, $287-billion highway bill his panel cleared in July 2019, says committee
spokesperson Sarah Durdaller. But
she says if a long-term bill isn’t doable by Sept. 30, Barrasso wants an extension
to run for at least a year to avoid disruptions in construction and planning. In the House, Rep. Sam Graves (Mo.), the
Transportation and Infrastructure Committee's top Republican, believes that "an extension of at least a year is in the best interests of the stakeholders," spokesman
Justin Harclerode said via email. He added that in Graves' view, "In lieu of a full reauthorization, that will provide the greatest amount of stability for states,
construction seasons and job creation." Stand-alone or CR Durdaller says Barrasso would support a one-year extension “ as a
stand-alone bill or as part of a must-pass bill.” Treasury Secretary Steven Mnuchin and House Speaker Nancy Pelosi (D-Calif.), have said
they want a “clean” CR that extends spending at 2020 levels but generally excludes non-appropriations provisions . A FAST Act provision might

not seem to fit that definition of a “clean” bill. But the House aide told ENR that extensions of expiring
authorizations are one of several items that will be discussed in the negotiations . The Office of Management and
Budget had sent Congress a list of more than 60 such expiring authorizations, including the FAST Act. Mnuchin also said the CR is expected to extend overall federal
appropriations only into December. But infrastructure advocates are hopeful that negotiators will agree to extend
the FAST Act for a full year.

Republican opposition stalls the bill and eats up floor time.

Carney, 18 [Jordain, reporter for the Hill, 11-16-18, “Cotton opposes Trump-backed criminal justice
bill”, https://thehill.com/blogs/floor-action/senate/417165-cotton-opposes-trump-backed-criminal-
justice-bill, BP]

Sen. Tom Cotton (R-Ark.) said Friday that he will not support criminal justice reform legislation despite
President Trump's endorsement of the effort. Cotton — who has opposed previous, broader versions of
the legislation — argued that the newly introduced legislation would result in the "early release for
dangerous, repeat felons." “Unfortunately, the new text of this legislation reveals that what started as a
prison-reform effort has transformed into sentencing reductions and early-release for dangerous, repeat
felons, and I therefore cannot support this bill," Cotton said in a statement. Cotton's opposition to the
legislation, which would pair a House-passed prison reform bill with four sentencing reform measures,
isn't a surprise. He was one of four then-senators who vocally opposed a broader criminal justice bill
spearheaded by Grassley and Durbin in the previous Congress. Cotton said in a tweet Thursday that the
Judiciary Committee should hold a hearing on the legislation, in what supporters viewed as an attempt
to delay the bill. And he published a USA Today op-ed this week writing that "so-called 'criminal-justice
reform' ... is just a misguided effort to let serious felons out of prison." A White House official said this
week that Cotton had been an "ally" to the president on other issues but they believed they could get
the votes needed to pass the bill in the Senate without him. But his entrenched opposition underscores
the uphill battle the legislation faces in getting scheduled for a vote in the Senate, where lawmakers are
running out of time and GOP leadership has been noncommittal about whether they will bring it up
before the end of the year. Majority Leader Mitch McConnell told reporters this week that supporters
needed to introduce the legislation, which they did on Thursday evening, and show that they had 60
votes to pass the bill. Then, leadership would weigh the legislation against other issues that need to
clear Congress in the lame duck session. In addition to Cotton, Sen. John Kennedy (R-La.) said Thursday
that he will object if leadership tries to skip over procedural hurdles in scheduling a vote. If Kennedy
follows through, that would force McConnell to decide between eating up days of floor time during a
tight schedule or kicking the issue to next year. And Sen. Lindsey Graham (R-S.C.) told reporters on
Thursday that acting Attorney General Matthew Whitaker has "problem areas" with the legislation, and
that he shared his "concerns" with the president. Grassley appeared to take aim at Whitaker on Friday,
saying in a tweet that he expects the Justice Department to support his legislation. "Now w Sessions out
as AG + Pres Trump endorsing crim justice reform I expect DOJ to support the bipartisan/tough on
crime/fair First Step Act especially since Acting AG Whitaker told me he would support bill if Trump did,"
Grassley said.

The plan saps up floor time – presidential politics, prospective Senate elections, and
internal disagreement stifle legislation, even if it’s bipartisan.
Hulse 16 (Carl Hulse, Chief Washington Correspondent for the New York Times, “Why the Senate
Couldn't Pass a Crime Bill Both Parties Backed,” 09/16/16, The New York Times,
https://www.nytimes.com/2016/09/17/us/politics/senate-dysfunction-blocks-bipartisan-criminal-
justice-overhaul.html, TM)

A major criminal-justice overhaul bill seemed destined to be the bipartisan success story of the year,
consensus legislation that showed lawmakers could still rise above politics. Then the election, Donald J.
Trump's demand for "law and order" and a series of other political calculations got in the way. Senate
Republicans divided on the wisdom of reducing federal mandatory minimum sentences. Other
Republicans, unhappy that President Obama was reducing hundreds of federal prison sentences on his
own, did not want to give him a legacy victory. A surge in crime in some urban areas gave opponents of
the legislation a new argument. Now, the Senate authors of the legislation say it is effectively dead. "I
do believe it is over," said Senator Richard J. Durbin of Illinois, the No. 2 Democrat in the Senate, who
put considerable effort into difficult negotiations with Republicans to strike a compromise. "We missed
an opportunity." What remains is a stunning display of dysfunction given the powerful forces arrayed
behind legislation meant to provide a second chance for nonviolent offenders facing long prison
sentences while also saving tax dollars on prison costs. Speaker Paul D. Ryan is on board. The
quarrelsome Senate Judiciary Committee passed its bill on a strong bipartisan vote with the imprimatur
of Senator Charles E. Grassley of Iowa, the Republican chairman. Mr. Obama considers the issue a top
priority. The conservative Koch brothers were behind it. So was the liberal Center for American Progress
and just about every advocacy group in between. Polls show the concept has broad public support.
States both red and blue already have moved ahead with successful parallel programs. A cross section of
law enforcement groups backs it. Still, the legislation foundered. "It is one of the things that makes this
a frustrating place to work," said Senator John Cornyn of Texas, the No. 2 Republican in the Senate, who
became a believer in a new approach to criminal justice after seeing the benefits in his home state. Mr.
Cornyn concedes the tumult of this election year was a major factor given sharp disagreement among
Senate Republicans reflected in the decision by Senator Mitch McConnell, Republican of Kentucky and
the majority leader, to not allow a vote on a proposal most believe would pass easily. "I think that
Senator McConnell understandably did not want to tee up an issue that split our caucus right before the
2016 election," said Mr. Cornyn, who noted that aspects of the legislation had been misconstrued by its
critics. Presidential politics were at work as well. Mr. Trump has been campaigning on warnings of a
United States at risk from sinister forces, even though violent crime is low compared with past decades.
But crime surges in some urban areas have given opponents of the legislation ammunition to challenge
it. "I think he's highlighted some of the crime surges we've seen, and I do think it should require
proponents of the federal legislation to re-evaluate their position," said Senator Jeff Sessions,
Republican of Alabama, referring to Mr. Trump. Mr. Sessions is both a chief ally of Mr. Trump on Capitol
Hill and a leading opponent of the criminal justice legislation, along with the Republican Senators Tom
Cotton of Arkansas and David Perdue of Georgia. Mr. Cotton said this year that the United States
suffered from an "under-incarceration" problem, not from too many people being in prison. These critics
have been supported by an association of federal prosecutors that has assailed the legislation.
Frustrated supporters of the proposal have pushed back, noting that even if violent crime is rising in
some locations, the legislation is aimed at nonviolent criminals, mainly drug offenders. But the clash
created a political dissonance and made some Republicans reluctant to risk their tough-on-crime image
immediately before an election. Democrats and progressive groups have been leery of an insistence by
conservatives that any final legislation include a provision that could make it more difficult to prosecute
white-collar crimes. Passage of a separate measure addressing the opioid crisis gave lawmakers an
accomplishment to tout on the drug issue. Despite slim chances for success this year, proponents of the
criminal justice package are not surrendering. Supporters have met with Mr. Ryan to press for a House
vote on a package of three bills before lawmakers leave for the election. House backers of the legislation
have been conducting briefings for lawmakers and aides in hopes of winning enough commitments to
persuade Mr. Ryan to move ahead. "I think we are close," said Holly Harris, executive director of the U.S.
Justice Action Network, a leading bipartisan coalition behind the legislation. "The enemy is the clock."
Even if the House were to act in the next week or so -- a prospect top aides considered unlikely -- there
would be little opportunity for the Senate to follow suit, with senators eager to return to campaigning
in the battle for Senate control. Neither Mr. Cornyn nor Mr. Durbin sees criminal justice legislation as
the type of issue that could be sorted out in a chaotic postelection, lame-duck session, with other issues
clamoring for immediate attention. Both senators, as well as Ms. Harris, predicted that the criminal
justice proposals would be back before Congress in 2017 if nothing happened this year. "This is not a
partisan issue," Mr. Cornyn said. "No matter what happens in November, I think this is still very much
alive and achievable. Some things just take a while." But this was one thing Congress was supposed to
have done by now.

Infrastructure investment solves ag

Amrit Patel 9/05/2016

PhD “Infrastructure For Agriculture & Rural Development In India Need For A Comprehensive Program &
Adequate Investment” https://www.microfinancegateway.org/sites/default/files/mfg-en-paper-
infrastructure-for-agriculture-rural-development-in-india-need-for-a-comprehensive-program-
adequate-investment-sep-2010.pdf )//masw

The studies unanimously confirm that rural infrastructure is a sine qua non for significantly improving
the quality of human life and phenomenally accelerating the process of ag ricultural development. Infrastructure projects,
however, involve huge initial capital investments, long gestation periods, high incremental capital output ratio, high risk, and low rate of returns on investments. Rural infrastructure has direct

and strong relationship with farmers ‟ access to institutional finance and markets , and increasing crop
yields, thereby promoting agricultural growth. Agricultural infrastructure has the potential to transform
the existing traditional agriculture or subsistence farming into a most modern, commercial and dynamic farming system in India. According to Wharton [1967] agricultural infrastructures
are categorized into [i] capital intensive, like irrigation, roads, bridges [ii] capital extensive, like extension services and [iii] institutional infrastructure, like formal and informal institutions. Infrastructure, such as irrigation, watershed
development, rural electrification, roads, markets, in close coordination with institutional infrastructure, such as credit institutions, agricultural research and extension, rural literacy determines the nature and the magnitude of
agricultural output in India. Adequate infrastructure raises farm productivity and lowers farming costs and its fast expansion accelerates agricultural as well as economic growth rate. It is acknowledged that

infrastructure plays a strategic role in producing larger multiplier effects in the economy with
agricultural growth. It is estimated that a 1% increase in the stock of infrastructure is associated with a
1% increase in GDP across all countries. The level of both physical and institutional infrastructure
significantly influences the spread of proven and demonstrated yield enhancing agricultural technology.
Agricultural infrastructure primarily includes wide range of public services that facilitate production,
procurement, processing, preservation and trade . Agricultural infrastructure can be grouped under following broad based categories. Input based infrastructure: Seed,
Fertilizer, Pesticides, Farm equipment and machinery etc. Resource based infrastructure: Water/irrigation, Farm power/energy Physical infrastructure: Road connectivity, Transport, storage, processing, preservation, etc
Institutional infrastructure: Agricultural research, extension & education technology, information & communication services, financial services, marketing, etc. Development economists recognize the growing importance of
agricultural infrastructure in its role not limited to agricultural development but expanding it to encompass economic development of the country. Researchers have identified 11 components of infrastructure, such as [i] irrigation
and public access to water [ii] means of transportation [iii] storage services [iv] commercial infrastructure [v] processing infrastructure [vi] public services [vii] agricultural research and extension services [viii] communication and

scientific literature on agricultural

information services [ix] land conservation services [x] credit and financial institutions and [xi] health and education services. Studies on Infrastructure: The

infrastructure including road connectivity deals with comprehensively its significance on agricultural
development, of which following, among others, are a few most relevant to India. Binswanger [1993] in a study of 13 States in India observed that investments in rural infrastructure lowers transportation costs,
increases farmers‟ access to markets and leads to substantial agricultural expansion. World Bank studies [1994] showed that the growth of farm productivity and non-farm rural employment is closely linked to infrastructure
provision. This has considerable significance since most poor households in developing economies are in rural areas. The effects of infrastructure accentuate the process of commercialization in agriculture and rural sector [Jaffee
and Morton, 1995]. It can also lead to a conversion of latent demand into effective commercial demand. Fan et al [1998] showed that rural infrastructure is not only an important driver for total factor productivity [TFP] growth, but
also directly contributes to a substantial reduction in rural poverty. If the Government were to increase its investments in roads by Rs.100 billion [at 1993 constant prices], the incidence of poverty would be reduced by 0.87% and

Improved infrastructure
TFP would increase by 3.03%. Similarly, investment in agricultural research and extension would contribute to 6.08% growth in TFP and 0.48% reduction in rural poverty.

leads to expansion of markets, economies of scale and improvement in factor market operations. It also
opens up the rural economy to greater competition from outside . This may take the form of cheaper products from lower-cost sources of supply or new
or improved products that may displace some locally produced items. The majority of studies recognize that infrastructure investment has a strong impact on rural incomes and especially on small holders. Among the various

infrastructure facilities,agricultural development was strongly correlated with agriculture infrastructure index followed by
a study indicated that among
index of transport and communication [Singh, 1983]. On the basis of a regression analysis and State level cross-section data for each year from 1971 to 1995,

various physical infrastructures, it was transport infrastructure that had a significantly positive effected
on the agricultural output level and the agricultural development index. The social infrastructure, besides physical infrastructure, had significant positive impact on the dependent variables. At
the district level from the regression analysis, at three points of time viz, 1971,1981 and 1991, the study observed that agricultural and transport infrastructures were

important determinants of agricultural output and agricultural development index [Majumdar 2002]. A recent
study attempted to analyze the impact of infrastructure on agricultural development using larger data,
both in terms of time period and coverage of infrastructure variables that included 10 explanatory variables. The results indicated that

transport, power, irrigation and research infrastructure were four critical components that affected the
agricultural productivity in a significant manner. With improvement in access to power, irrigation facilities substantially improved, particularly through massive energisation
of pumpsets. In turn, improved irrigation facilities, coupled with research input enhanced agricultural productivity. The other infrastructure facilities like access to fertilizer sale points, markets, credit, extension services, also
developed with the development of transport infrastructure [Thorat and Sirohi, 2002]. Irrigation infrastructure increases the land use and cropping intensity, and provides incentives to farmers to use yield enhancing inputs and
thus results in higher agricultural output [Dhawan, Shah, Vaidyanathan]. Rural electrification increases the energisation of pump sets, which helps to increase the irrigated area using groundwater and the output of crops cultivated
under groundwater irrigation is always higher than those under canal or tank irrigation, because of its better reliability and controllability.

Groups from every infrastructure network say FAST is necessary to maintain

infrastructure do to cuts in tax revenue – they need at least 30 billion to stay afloat
Mulero 9/10 – [Eugene Mulero - Eugene Mulero is a senior reporter at Transport Topics, focusing on
Congress and national policy, September 10 th 2020, “Infrastructure Stakeholders Press Congress for
Highway Law Extension”, https://www.ttnews.com/articles/infrastructure-stakeholders-press-congress-
highway-law-extension, eph]
Groups representing nearly every aspect of the country’s infrastructure networks recently called on congressional leaders to approve a
yearlong extension of a soon-to-expire highway law. The
U.S. Chamber of Commerce, the Association of Equipment
Manufacturers, the Commercial Vehicle Safety Alliance, and the American Society of Civil Engineers were
among dozens of stakeholders pressing for an authorizing extension of the five-year 2015 FAST Act, which expires Sept. 30
In addition to the extension, the groups asked the leadership on Capitol Hill to approve more than $ 30 billion in
emergency funding for both state departments of transportation and public transit agencies, as well as guarantee the
solvency of a federal highway funding account during the extension. The account, known as the Highway Trust Fund,
relies on dwindling revenue from fuel taxes. “State and local entities already delayed or canceled $8 billion
in surface transportation projects, with more on the horizon absent any clear sign of support from the federal government,” the groups,
which included the Intelligent Transportation Society of America, the National Safety Council, and the League of American Bicyclists, wrote to
House Speaker Nancy Pelosi, Senate Majority Leader Mitch McConnell, House Minority Leader Kevin McCarthy and Senate Minority Leader
Chuck Schumer on Sept. 9. The groups added, “Failure to approve a one-year extension with increased funding for the purpose
of stability would only exacerbate this dire situation. Passing legislation that includes the aforementioned priorities
would enable critical improvements that increase the safety and efficiency of the surface transportation
system.” If Congress is unable to advance a multiyear update of the FAST Act by Sept. 30, alternatives besides inaction would be to either
pass a temporary extension of the law or include such an extension in must-pass federal funding legislation. Federal funding authority
via appropriations also expires Sept. 30. Key transportation policymakers, scrambling to avoid interruptions to freight and
commuter systems, as well as avert a government shutdown, are endorsing the possibility of a yearlong extension. For instance, Rep. Sam
Graves (R-Mo.), ranking member on the Transportation and Infrastructure Committee, insists states, infrastructure stakeholders, and the
transportation industry’s workforce require stability and certainty an extension of the FAST Act would bring. “ This will be critical to
states’ planning, next year’s construction season , and jobs,” a congressional aide told Transport Topics on Sept. 9. To be
sure, Congress is attempting to update the FAST Act. Over the summer, the House gave partisan approval to a massive infrastructure bill that
included an update of the 2015 highway law. Last year, a Senate committee gave bipartisan backing to a five-year, $287 billion update of the
FAST Act. Neither party has announced negotiations to reconcile differences in the bills. Both measures stopped short of proposing a long-term
fix for the Highway Trust Fund. The fund, projected to run low in the months ahead, is backed by insufficient revenue from the 24.4 cents-per-
gallon diesel tax and 18.4 cents-per-gallon gas tax. Those rates were set in 1993. The White House, meanwhile, has not unveiled a highway
policy proposal this year. During the State of the Union, President Donald Trump called on Congress to approve the Senate committee’s
highway bill. House funding leaders led the passage of most of the chamber’s appropriations bills. The Senate Appropriations Committee has
yet to schedule votes on its fiscal 2021 funding docket. Without Senate action, a likely scenario on Capitol Hill appears to be approving a
temporary funding measure that would avert a partial shutdown of federal agencies. The stopgap fiscal funding bill would need to reach the
president’s desk for enactment by Sept. 30. In a fiscal 2021 funding bill the House approved, the Federal Motor Carrier Safety Administration
would receive $881 million for its operations. The proposed allocation would be a $202 million increase from the fiscal 2020-enacted level, and
$179 million more than the president’s request. “This funding is necessary for our future prosperity, especially as we
transition from pandemic to recovery,” said Rep. David Price (D-N.C.), chairman of the Transportation, and Housing and Urban
Development, and Related Agencies Subcommittee, about the fiscal 2021 transportation funding package.

Association of Equipment Manufacturers says it’s key – specifically because of covid

Heemstra 9/11 – [Jody Heemstra – reporter DRGNews, Sep 11th 2020, “AEM Asking Congress to
Extend the FAST Act”, https://drgnews.com/2020/09/11/aem-asking-congress-to-extend-the-fast-act/,
eph]
The Association of Equipment Manufacturers and several industry partners sent a letter to
Congressional leadership, asking for a one-year extension of the current surface transportation law. The Fixing America’s
Surface Transportation (FAST) Act is set to expire on September 30.

“As our industry and our country continues to navigate the lasting effects of COVID-19, we need congressional leaders to
rise to the occasion and help keep the wheels moving on critical infrastructure projects around the country,” says
Dennis Slater, President of AEM. “As states and local governments continue to see budget shortfalls due to
COVID-19, ensuring that the much-needed repair and modernization of our surface transportation system can continue will
create American jobs and boost demand for construction equipment.”

AEM and dozens of industry partners want members on both sides of the aisle to work together on a long-term, fully-funded
reauthorization that will better prepare America’s roads, highways, bridges, and public transit systems to
meet the demands of a “globally-competitive 21st-century economy.” The letter to congressional leaders asks for a
“turn-key, one-year extension of the current surface transportation law with increased investment levels” in the nation’s infrastructure.