1NC – T

Substantial reform requires a holistic approach to the overall

criminal justice system.
Morris 78 — Norval Morris, Former Professor of Law at and Dean of the University of
Chicago Law School, Former Founder and Board Member of the U.S. Bureau of Prisons
National Institute of Corrections, holds a Ph.D. in Law and Criminology from the
University of London, 1978 (“Reviewed Work(s): Denial of Justice: Criminal Process in
the United States by Lloyd L. Weinreb,” Harvard Law Review, Volume 91, Available
Online to Subscribing Institutions via JSTOR, Accessed 08-21-2020, p. 1369-1370)
It is often unfair, though common, to criticize a book for not being a different book; an author may surely select his own
topics. But in this case one cannot but regret the failure to offer at least a primitive guide to the reformer's path. Few
scholars take as holistic an approach to the criminal justice system as Lloyd Wein-
reb does in Denial of Justice. Undoubtedly, such an overarching perspective
is essential to serious and substantial reform of our present anarchic,
inefficient, and unjust system; to leave the book with a sense of a chapter or chapters missing, however,
is a dis- appointment. The truly difficult task in criminal justice reform is to define
politically viable courses of legislative, regulatory, and judicial conduct
which are capable of avoiding the formidable ability of existing institutions
to swallow changes without affecting the overall system . There should have been at least
one long chapter, of this prescriptive nature, sketching the path between the diagnosis in the first five chapters and
Weinreb's utopian "alternative model." Am I condemning Weinreb for not writing a different book? I think not. It may be
true, as Weinreb argues, that fundamental change in our criminal justice system is
needed. But this does not necessarily imply that such a grand vision of a new goal cannot be achieved by means of
politically viable incremental steps. Weinreb, in neglecting (or rejecting) this pos- sibility, fails to fulfill the promise of his
earlier critical analysis of the criminal justice system and leaves this book troublesomely incomplete.

Violation — the affirmative is an individual change to the

criminal justice system.

Vote negative to preserve predictable limits and negative ground

— including reforms to individual criminal laws and
enforcement tactics in all three areas explodes the topic and
encourages small cases
 1NC – K
Framing debates in securitized terms creates self-fulfilling
prophecies that undermine global cooperation – that’s a gateway
issue
Burke et al 2014 (Anthony [Associate Prof and Reader in International and Political
Studies at UNSW Australia], Katrina Lee-Koo [Senior Lecturer in IR at U of
Queensland], and Matt McDonald [Senior Lecturer in IR at U of Queensland]; Ethics
and Global Security; Routledge; p. 19-21; kdf)
A final point is necessary on the relationship between security and ethics as we conceive it, by way of introduction to this
book. To develop a cosmopolitan ethics of security is not simply a case of applying
"cosmopolitanism" to a particular issue area in global politics (security), but rather,
rethinking how we understand and practice security . What limits existing
accounts of the relationship between ethics and security is the tendency to ignore or
downplay the particular politic of security: its centrality to the political legitimacy of the key
actors in global politics; its capacity to define the core values of communities, and the manner in which
they might be protected or advanced; its capacity to mobilise particular political responses or the
actors undertaking them. -Fins is particularly applicable to discourses of "human security'', for example, and to some
extent, critical engagement with security grounded in concerns with emancipation (Booth 2007). It is for these reasons
that security is often seen to belong to the realm of "high politics": the most important
objective of states, wherein the naming and relationship of "security" and "threat"
designates political priority and can trigger extraordinary (and frequently illiberal and
antidemocratic) responses, such as the violation of human rights or international law. This political function
of security makes an analysis of the ethics of security more urgent, in part because of what
is at stake in debates about security (definitions of community and values, and responsibilities to the
self and others, for example). But this politics of security also complicates the simple
application of cosmopolitan thought. In our view, what is needed is sustained engagement
with the "politics of security" that argues for moral progress, while taking seriously the
dangers of securitization and the apparent constraints placed upon the articulation of
radical security alternatives. When taking account of the politics of security here, we particularly focus
on the 'function of representations or discourses of security in defining group identity, enabling
particular policy or legitimating particular actors as security providers' (Browning and McDonald 2013). Engagement with
the politics of security in this way has tended to come from theorists ofs ecurity in the post-structural tradition. For such
thinkers, representations of security define political community or integrate individuals into an abstract notion of political
community or national values (Burke 2008a; Campbell 1998a; Weldes 1999 ).
Security, in this sense, can become
a form of governmentality that shapes and moulds individuals for political ends . David
Campbell's (1992, 1998a) analysis of the function of Cold War discourses of the communist threat in the United States is
perhaps the most obvious case here. For Campbell ,
national security discourses served to define
American identity in a narrow and highly, politicised way . In the process of constructing
external threats to which the state ( in this instance) positions itself as the actor capable of
providing security, those with power can exclude dissenting voices and political
alternatives, and shut down needed debates about policy. For the so-called Copenhagen (or
"securitization") School, security can be understood as a social construction, brought into being through "speech acts" that
define particular dynamics, actors or things as existential
threats. In the process, these issues are elevated
above the realm of "normal- politics and into the high politics arena of security, where
they are dealt with through urgency and secrecy. While its proponents do not deny the possibility that such
developments may be progressive, ultimately their preference is for desecuritization: the removal of issues from the
security agenda. This is most frequently based on the claim that security has an illiberal logic, limiting the possibility for
dialogue and locating responsibility for providing security to those with power. But such a sedimented view of the logic of
security can also apply to its meaning. For Ole Wxver (1995), at the heart of the concept of security 'we still find something
to do with defence and the state' ( see also Berki 1986; Neocleous 2008). These alternative conceptions of security will be
examined in more detail in the Chapter 1. They suggest something distinct about the study of security that makes it
qualitatively different from other issue areas or "promises" of government. In this, we would agree, and reaffirm the need
to take seriously the politics of security. But if these critics have most explicitly engaged with the politics of security and its
dangers, their proposed response to the dangers of securitization—resisting or escaping security and its logics is
problematic (Dillon and Reid 2009; Dillon 1996; W;,ever 1995). For these scholars, security is something that should be
resisted, escaped or challenged. We think such critics go too far. They are right to identify the dangers of an unthinking
embrace of security as a site of progress, and right too in drawing attention to the ways in which the promise of security
for some can all too easily be defined on the basis of the continued suffering and marginalization of others, both within a
particular political community and beyond. Yet, in acknowledging the pathologies of a dominant security discourse, and in
failing to articulate a progressive alternative, they mistake this discourse for the timeless essence of what security means
and does, paradoxically reinforcing its centrality in international relations. In rejecting the possibility that a range of
actors can and do enact progressive notions of security, they deprive marginal actors and communities of a site of
contestation and change. This pessimism has been contested in a range of " positive. " critical accounts of security (Booth
2007; Burke 2013a; Floyd 2011; Nunes 2012; Hoogensen-Gjory 2012; McDonald 2014; Roe 2012). What is needed,
then, is an approach that is at once attuned to the dangers of embracing security —given its
history of contributing to exclusionary practices and the status quo— while refusing to give up on defining a
cosmopolitan conception of security oriented towards an integrated global society, and
the rights and needs of the least powerful and most vulnerable . In a related way, we are
concerned to see global security as a major priority that can be addressed as a part of the
normal (not exceptional) practice of government and civil society action that are
democratically and internationally accountable . In part, this is because exceptionalist practices
have tended to reinforce nationalism and alienation , privilege the security of the few and undermine it
for the many, and gravely damage global cooperation and consciousness. When international
organisations become involved in global security governance, it is imperative that their practices and
objectives either reflect the global interests and international norms painstakingly
developed over decades, or seek to improve them in the cause of a just global security order that supports human
dignity and flourishing.
 1NC – CP
The United States federal government should interpret that the
death penalty is unconstitutional because it’s not in line with
ICCPR. In the event of a legal challenge, the Solicitor General of
the United States should waive any defense other than Chevron
deference.

Chevron faces imminent demise - durable fiat ensures the

counterplan is upheld - saves the doctrine
Pojanowski 18 (June 21st, 2018, Jeffrey Pojanowski is a Professor of Law at Notre
Dame Law School, “The Future of Chevron Deference: Of Zombie Fungus and Acoustic
Separation,” http://yalejreg.com/nc/the-future-of-chevron-deference-of-zombie-
fungus-and-acoustic-separation-by-jeffrey-pojanowski/)
The Supreme Court tossed a proverbial squib into the administrative law
world this morning, and the takes, hot and otherwise, are sparking
everywhere. It handed down three decisions with implications for
administrative law which already had its own
: Lucia v. SEC, Pereira v. Sessions, and Wisconsin Central Ltd. v. United States. Lucia,

symposium on this blog, gave much for Appointments Clause aficionados to

chew on. Pereira and Wisconsin Central—and especially Pereira— restoked
discussion about whether the Supreme Court would ever, eventually, at some point
jettison Chevron deference. As you know, Dear Reader, this is not a new discussion, but some fresh data points came in. First, as many have noticed, Justice Kennedy wrote separately to

Justice
announce his discomfort with Chevron, at least as it is currently practiced. It is important to not read too much into this—Jon Adler makes good points here—but it’s also important to not read in too little, either.

Kennedy joined the Chief Justice’s Chevron-skeptical opinion in City of

Arlington, but until now that could easily be have been read as favoring a
narrow exception for jurisdictional questions. He says the Court Here, he goes a bit further.

should revisit deference to agency interpretation of procedural and

substantive questions, he cites Chevron-skeptical opinions by Justice Thomas and
then-Judge Gorsuch , and he closes with citation to the portion of the Chief’s
City Arlington dissent that raises more general concerns about the rise of
the administrative state and separation of powers. We don’t know where Justice Kennedy’s reexamination of the doctrine would lead,
but this is not the concurrence of one whom is happy with the status quo, and this is the first time he has explicitly noted these worries. Perhaps even more significant is Justice Alito’s dissent. He does not exactly celebrate Chevron, but he points
out the fact that it is governing law and that, faithfully applied, it requires deference to the government’s interpretation. Although Justice Alito joined the Chief’s dissent in City of Arlington and has expressed worries about Auer deference, it is
notable here that he is not calling for a reexamination of the doctrine. To the contrary, he seems quite comfortable applying it here and, importantly, applying it with a Step One that does not swallow the doctrine. (More on that below.) Alito’s is a

When you combine today’s decision with Justice Breyer’s

Chevron application that the D.C. Circuit could love.

proposed softening of Chevron in this year’s SAS Institute decision, it

appears that there are at least five votes to narrow Chevron in some form (Roberts,
Kennedy, Thomas, Breyer, and Gorsuch), with Kennedy at least in play for a more
substantial revision alongside Thomas and Gorsuch . Alito, by contrast, seems cooler toward narrowing Chevron than he did when he joined the Chief’s
dissent in City of Arlington. Perhaps we should not read too much into one opinion, but today suggests Alito is not rushing to join Thomas and Gorsuch on a wholesale revision to Chevron, so it looks like it will be harder for Chevron’s critics to

But the most interesting portion of Alito’s dissent suggests

count to five for explicit overruling.

Chevron critics can lose that battle but win the war . After explaining at length
why he thought the majority’s interpretation of the statute was plausible but
not compelling, he noted Choosing between these competing interpretations might have been difficult in the first instance. But under Chevron, that choice was not ours to make…[U]unless

Having a super-strong Step One, Alito

the Court has overruled Chevron in a secret decision that has somehow escaped my attention, it remains good law.

suggests, is in many cases not all that different from abandoning Chevron
deference a strong Step One essentially takes (a) one category of
. As I have argued before, such

Step Two cases (hard questions of statutory interpretation) and files them
under nearly de novo review and (b) takes another category of Step Two cases
(questions where it is really hard to apply any of the traditional interpretive
tools…think “act in the public interest”) and drops those questions into ordinary
arbitrary and capricious review. In a poof, the strong Chevron that treats legitimate interpretive disagreement as a forum of policy choice disappears and informal Skidmore or de novo

or defenders of Chevron
review takes over under the guise of applying Step One. Or, more simply, does this by noting that Chevron does apply because the statute is clear. F

deference, this is equivalent of the zombie fungus that takes over ants’ bodies to
control their minds: on questions of law, the doctrinal form of deference remains, but an
aggressive, non-deferential spirit controls its remaining husk . For Chevron’s critics,
it’s a pretty neat move. It does not require the sturm und drang of
overruling an old case, or it at least gives the Court a chance to experiment with
less deferential review before whether deciding how to make such a change and make it
official. such an overruling may not be necessary If the Justices rarely feel
In the end, though, .

like they are ceding their power to say what the law is, the urgency to
jettison the doctrine simply goes away. The deference space becomes the exclusive preserve of true agency policy choices and, while some judges and scholars

All of which raises the

may worry about the non-delegation doctrine, there is no similar groundswell to replace arbitrary-and-capricious review with de novo judicial policymaking.

question of what do you do with the husk of Chevron wandering around the
U.S. Reports? It is possible, as
This is a pressing question for appellate and district courts, who don’t have the luxury of ignoring decisions or recognizing stealth overrulings.

Adrian Vermeule and Chris Walker suggested on Twitter, that we could have
a regime of de facto de novo review at the Supreme Court but de jure
deferential review that lower courts are instructed to obey and might, in
fact, actually obey. And if you think Chevron makes sense because (a) it allows for uniform decisions across the circuits and (b) busy district and appellate courts don’t have time to get deep in the weeds of
regulatory interpretation, there’s a logic to having unofficial de novo at the Supreme Court and official rules of deference across the circuits.

The PTO is inefficient now – but chevron makes it better.

Micheals 19 - an Assistant Professor of Law at University of Houston Law Center,
where he currently teaches Patent Law, Intellectual Property Survey, and Statutory
Interpretation & Regulation, (Andrew, “Examining the USPTO’s Bid for Adjudicatory
Chevron Deference,” IP Watchdog, 10-1-19,
https://www.ipwatchdog.com/2019/10/01/examining-usptos-bid-adjudicatory-
chevron-deference/id=114132/, Accessed 7-4-20, LASA-AH)
In response to a request for supplemental briefing from the Federal Circuit in Facebook
v. Windy City Innovations, the U.S. Patent and Trademark Office (USPTO) recently
argued that its precedential panel opinions interpreting the America Invents Act (AIA)
are entitled to Chevron deference , under which (essentially) courts must defer to an
agency interpretation of a statute so long as the interpretation is reasonable. To the
extent that this bid for Chevron deference is limited to procedural administrative Patent
Trial and Appeal Board (PTAB) matters such as the one at issue in that case, (an
interpretation of 35 U.S.C. § 315(c) which relates to the USPTO Director’s ability to join a
party in inter partes review [IPR]), it is arguably defensible. But to the extent that the
agency claims (or plans to claim) that its precedential PTAB opinions are owed deference
on issues of substantive patent law, it is likely incorrect.
Deference Under Mead
The basis for this distinction lies in the agency’s Congressional grant of authority.
According to the Supreme Court decision in Mead, “administrative implementation of a
particular statutory provision qualifies for Chevron deference when it appears that [1]
Congress delegated authority to the agency generally to make rules carrying the force of
law, and [2] that the agency interpretation claiming deference was promulgated in the
exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).
The Court in Mead thus set forth two distinct requirements; first, that there be a
delegation of authority from Congress, and second, that the agency interpretation
claiming deference be a proper exercise of that authority.
The first requirement of Mead, the delegation of authority, is likely met for procedural
PTAB issues, but not for substantive patent law issues. Although the AIA does explicitly
provide the USPTO with authority to prescribe regulations “establishing and governing
inter partes review,” 35 U.S.C. § 316(a)(4), Congress has made no such grant of authority
to the USPTO with respect to issues of substantive patent law . See, e.g., Merck & Co. v.
Kessler, 80 F.3d 1543, 1549-50 (Fed. Cir. 1996) (explaining that Congress has authorized
the PTO to “promulgate regulations direct only to ‘the conduct of proceedings in the
PTO,’ but not ‘to issue substantive rules’”); Ass’n for Molecular Pathology v. U.S.PTO,
687 F.3d 1303, 1357 (Fed. Cir. 2012) (Bryson, J., concurring in part dissenting in part)
(“the PTO lacks substantive rulemaking authority as to issues such as patentability”).
When, in exercising its procedural rulemaking authority, the USPTO issues notice and
comment regulations governing the conduct of IPR, such regulations are likely entitled
to Chevron deference. This was the case in Cuozzo, where the Supreme Court
deferred under Chevron to the USPTO’s (subsequently revoked) regulation providing for
the broadest reasonable construction claim interpretation standard in IPR. See Cuozzo
Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2146 (2016) (“the Patent Office’s regulation,
selecting the broadest reasonable construction standard, is reasonable”). Similarly, in
SAS Institute, the Supreme Court applied the Chevron framework to the USPTO’s
regulation allowing for the use of “partial institution” in IPRs, but avoided deferring by
finding that the PTO’s interpretation of the statute was unreasonable. See SAS Inst., Inc.
v. Iancu, 138 S. Ct. 1348, 1358 (2018) (“we are left with no uncertainty that could warrant
deference”).

Efficient patents are key to biotech

Gregory 18 – Adam Gregory, Associate Patent Attorney at Mewburn Ellis LLP,
November 26th ("The Importance Of Patents To Biotech Start-Ups," Biotech Connection
Singapore, Available online at https://www.biotechconnection-sg.org/the-importance-
of-patents-to-biotech-start-ups/, Accessed 9-11-2020) LR

biotech companies are often founded

Why do patents matter to biotech start-ups? Early-stage
based on the exciting results of pre-clinical research relating to a new
product or treatment. However, due to the need for refinement/development, as
well as the extensive work required to demonstrate safety and efficacy in order to obtain regulatory approval, early-stage
biotech companies are often a long way away from bringing a new drug or
therapy to market. Unlike in many industries where a new company will have a product/service that can be
readily commercialised to generate revenue, early stage biotech companies often find that they
have a concept for a new product/treatment that could ultimately generate billions of dollars in
sales annually, but have no obvious way to commercialise or finance the technology in the short-
term . This problem is compounded by the very large amount of capital required to advance a new drug or therapy from
the pre-clinical stage to treating patients in the clinic. The Tufts Center for the Study of Drug Development (CSDD)
estimates that it now costs more than USD 2.5 billion to bring a new drug to market. The
ability to attract
investment is therefore critical for an early stage biotech company to thrive. In the
absence of a tangible product, would-be investors will look at the potential
future commercial revenue if the product or treatment makes it to market. The
decision of whether or not to invest, and the scale of any investment, is based on how
well the technologies that form the core of a company have been protected. This is where
patents come in. As the actual and potential scope of commercial exclusivity is the basis for the value
proposition, investors look very closely at patent portfolios. Essentially, potential
investors ask ‘what can this company do that no other company can do without their
permission?’ Any serious investor will usually undertake thorough due diligence of
the patent portfolio , looking not only the granted patents, but also at the pending patent applications, to
understand what protection the company already has, and what they are seeking protection for.
Patents can also be useful for generating revenue in the short-term . Patents and
patent applications can be sold, or licensed to other parties that wish to use the
invention. Licensing agreements can also form the basis of collaborations with
other companies or research institutions, which can in turn lead to improvements to the
tech nology. Having patent protection, or the opportunity to obtain patent protection, covering the
core technology of the company, and being able to present a plan for generating future IP, can be key to
the success of a biotech start-up.

Biotech solves ABR – allows genetically engineered solutions to

remove resistant genes
Johnson 15 (Bryan Johnson is an entrepreneur, venture capitalist and founder of the
OS Fund a $100 million fund that invests in science and technology and Braintree,
“Nature-Inspired Factories Are the Future of Manufacturing”, Live Science, April 10,
2015, https://www.livescience.com/50449-nature-inspired-factories-are-future-of-
manufacturing.html)
∂ A new type of foundry has moved into Boston Harbor, but it has no metal cutters or molten steel. In the 18,000-square-
foot (1,672 square meters) facility, engineers churn out products ranging from scents and
flavors to probiotics that fight antibiotic resistance . All of the custom-designed
products come from an unlikely source: microorganisms. ∂ Ginkgo Bioworks, part of the
OS Fund, is one of a growing number of companies engineering technology with lessons from nature. Its founders
are redesigning industrial engineering for a new generation — a
manufacturing revolution powered by biology.∂ Synthetic biology goes mainstream∂ This
nascent field, known as synthetic biology, is now at a place similar to where computers were in the 1950s and 1960s —
slow, tedious and manual. But it is rapidly advancing and evolving with new technology: The industry is expected to reach
$5.6 billion by 2018 — up from $1.9 billion in 2013. ∂ Like many synthetic biology companies, Ginkgo's first commercially
ready products are in the food and cosmetics industries, and they take a page from humanity's long history of culturing
foods. Just like yeast is used to make wine and beer, scientists are using the natural processes of microorganisms to
produce new flavors, nutrients and perfumes. [Probiotics' Future: 3 Promising Research Areas ] ∂ But the company's vision
is grander than consumer products: Collaborations
include projects with the U.S.
Department of Energy and the U.S. Defense Advanced ResearchProjects
Agency to make microorganisms that fight disease and remove greenhouse
gases from the air. ∂ It's a tall order, but by working to apply its technology across multiple levels of
complexity — from food to carbon mitigation — these bioengineers hope to make a biological
manufacturing method as reliable and predictable as the assembly lines that make
cars or cellphones.∂ Manufacturing with life's blueprints∂ Biology is a powerful technology. How a plant self-assembles and uses water, air and
sunlight to make food is downright magical compared to how people manufacture electronics. Bioengineers want to harness that power to design new technology from nature. They are writing a
new code base for humanity, taking the programming of biology out of the realm of the unpredictable and into the predictable. ∂ Ginkgo is part of a growing group of companies, such as Synthetic
Genomics and Human Longevity, that are changing the way people think about nearly every aspect of life by reimagining the world's biological tool kit. These applied biologists are making
organism engineering into a truly predictable engineering discipline. ∂ Because DNA-based code comprises sequences of base pairs that repeat across organisms, researchers are now creating the
tools and infrastructure needed to build new operating systems and applications using those codes. This is something computer software engineers have been doing for a long time, using 0s and 1s
to create predictable outcomes in everything from airplane autopilot systems to credit card transaction processing. ∂ Because of nature's complexity, biological code is not yet so predictable. For
decades, biologists, geneticists and chemists have been working to unlock the secrets of genetics to make a universal biological programming language — one in which they can design organisms to
perform specific functions in predictable ways. ∂ Just in the last few years, scientists have made amazing breakthroughs, learning how to write and edit DNA code. Making this code more
predictable will take time, and the effort will start in unlikely places — for example, in natural flavors and scents. ∂ Scaling up nature's assembly lines∂ Traditionally, making a scented rose oil has
required more than 1,000 petals to be harvested, collected and pressed to produce a small bottle of perfume. Through Ginkgo's organism design process, scientists are taking the genes from roses,
transferring them into yeast and growing it in a fermenter to produce rose oil in a process akin to beer brewing. [Engineers Follow Mother Nature's Lead on Keeping Clean] ∂ Speeding the scaling
of such processes are banks of robotic technologies for engineering the biological cells — work that used to be performed by an army of Ph.D.s. Researchers can instead spend their time doing the

Another application of synthetic biology aims

hard work of designing and customizing cells to solve specific problems. ∂

to tackle a pressing problem for humanity: antibiotic-resistant superbugs . Antibiotic resistance is

responsible for an estimated 700,000 deaths per year, according to a recent Wellcome Trust/UK report. And yet,
pharmaceutical companies are moving away from antibiotic development. ∂
What if, instead of trying to create new antibiotics, bioengineers found a way to remove
the antibiotic-resistant genes? Penicillin, for example, works well — just not against infectious bacteria
that have the genes for penicillin resistance. Researchers are working to design new types of
probiotics by engineering bacteria that can target and remove bacteria with
harmful traits such as antibiotic resistance. ∂ The time for synthetic biology,
to pursue our best opportunities and solve our greatest challenges, has arrived — it opens
up an entirely untapped world of solutions for humanity.

Too late to correct overuse – only biotech can prevent extinction

Kadiyali M. Srivatsa 17, is a doctor, inventor, and publisher. He worked in acute and
intensive pediatric care in British hospitals., 1-12-2017, "Superbug Pandemics and How
to Prevent Them," American Interest, https://www.the-american-
interest.com/2017/01/12/superbug-pandemics-and-how-to-prevent-them/
It is by now no secret that the human species is locked in a race of its own
making with “superbugs.” Indeed, if popular science fiction is a measure of awareness, the theme has pervaded English-language
literature from Michael Crichton’s 1969 Andromeda Strain all the way to Emily St. John Mandel’s 2014 Station Eleven and beyond. By a combination of massive
inadvertence and what can only be called stupidity, we must now invent new and effective antibiotics faster than deadly bacteria evolve—and regrettably, they are

I do not exclude the possibility that bad actors might

rapidly doing so with our help.

deliberately engineer deadly superbugs.1 But even if that does not happen,
humanity faces an existential threat largely of its own making in the
absence of malign intentions. As threats go, this one is entirely predictable.
The concept of a “black swan,” Nassim Nicholas Taleb’s term for low-
probability but high-impact events, has become widely known in recent
years. Taleb did not invent the concept; he only gave it a catchy name to help mainly business executives who know little of statistics or probability. Many have
embraced the “black swan” label the way children embrace holiday gifts, which are often bobbles of little value, except to them. But the threat of inadvertent

If one likes catchy labels, it better fits the

pandemics is not a “black swan” because its probability is not low.

term “gray rhino,” which, explains Michele Wucker, is a high-probability,

high-impact event that people manage to ignore anyway for a raft of social-
psychological reasons .2 A pandemic is a quintessential gray rhino, for it is
no longer a matter of if but of when it will challenge us—and of how
prepared we are to deal with it when it happens. We have certainly been warned. The curse we have created
was understood as a possibility from the very outset, when seventy years ago Sir Alexander Fleming, the discoverer of penicillin, predicted antibiotic resistance.

When interviewed for a 2015 article, “The Most Predictable Disaster in the
History of the Human Race, ” Bill Gates pointed out that one of the costliest
disasters of the 20th century, worse even than World War I, was the Spanish
Flu pandemic of 1918-19. As the author of the article, Ezra Klein, put it: “No
one can say we weren’t warned. And warned. And warned. A pandemic
disease is the most predictable catastrophe in the history of the human
race, if only because it has happened to the human race so many, many
times before.”3 Even with effective new medicines, if we can devise them,
we must contain outbreaks of bacterial disease fast, lest they get out of
control. In other words, we have a social-organizational challenge before us
as well as a strictly medical one. That means getting sufficient amounts of
medicine into the right hands and in the right places, but it also means
educating people and enabling them to communicate with each other to
prevent any outbreak from spreading widely. Responsible governments and cooperative organizations have
options in that regard, but even individuals can contribute something. To that end, as a medical doctor I have created a computer app that promises to be useful in
that regard—of which more in a moment. But first let us review the situation, for while it has become well known to many people, there is a general resistance to

Bacteria are among the oldest living

acknowledging the severity and imminence of the danger. What Are the Problems?

things on the planet. They are masters of survival and can be found
everywhere. Billions of them live on and in every one of us, many of them
helping our bodies to run smoothly and stay healthy. Most bacteria that are
not helpful to us are at least harmless, but some are not . They invade our cells, spread quickly, and
cause havoc that we refer to generically as disease. Millions of people used to die every year as a result of bacterial infections, until we developed antibiotics.

These wonder drugs revolutionized medicine, but one can have too much of
a good thing. Doctors have used antibiotics recklessly, prescribing them for
just about everything, and in the process helped to create strains of bacteria
that are resistant to the medicines we have. We even give antibiotics to cattle
that are not sick and use them to fatten chicke ns. Companies large and small still mindlessly market
antimicrobial products for hands and home, claiming that they kill bacteria and viruses. They do more harm than good because the low concentrations of
antimicrobials that these products contain tend to kill friendly bacteria (not viruses at all), and so clear the way for the mass multiplication of surviving unfriendly

Perhaps even worse, hospitals have deployed antimicrobial products on

bacteria.

an industrial scale for a long time now, the result being a sharp rise in
iatrogenic bacterial illnesses. Overuse of antibiotics and commercial
products containing them has helped superbugs to evolve. We now
increasingly face microorganisms that cannot be killed by antibiotics,
antifungals, antivirals, or any other chemical weapon we throw at them .
Pandemics are the major risk we run as a result, but it is not the only one.
Overuse of antibiotics by doctors, homemakers, and hospital managers
could mean that, in the not-too-distant future, something as simple as a
minor cut could again become life-threatening if it becomes infected . Few
non-medical professionals are aware that antibiotics are the foundation on
which nearly all of modern medicine rests. Cancer therapy, organ
transplants, surgeries minor and major, and even childbirth all rely on
antibiotics to prevent infections. If infections become untreatable we stand
to lose most of the medical advances we have made over the past fifty years.
And the problem is already here. In the summer of 2011, a 43-year-old woman with complications from a lung transplant was transferred from a New York City
hospital to the Clinical Center at the National Institutes of Health (NIH), in Bethesda, Maryland. She had a highly resistant superbug known as Klebsiella
pneumoniae carbapenemase (KPC). The patient was treated and eventually discharged after doctors concluded that they had contained the infection. A few weeks
later, a 34-year-old man with a tumor and no known link to the woman contracted KPC while at the hospital. During the course of the next few months, several
more NIH patients presented with KPC. Doctors attacked the outbreak with combinations of antibiotics, including a supposedly powerful experimental drug. A
separate intensive care unit for KPC patients was set up and robots disinfected empty rooms, but the infection still spread beyond the intensive care area. Several
patients died and then suddenly all was silent on the KPC front, with doctors convinced they had seen the last of the dangerous bacterium. They couldn’t have been
more mistaken. A year later, a young man with complications from a bone marrow transplant arrived at NIH. He became infected with KPC and died. This
superbug is now present in hospitals in most, if not all U.S. states. This is not good. This past year an outbreak of CRE (carbapenem-resistant enterobacteriaceae)
linked to contaminated medical equipment infected 11 patients and killed two in Los Angeles area hospitals. This family of bacteria has evolved resistance to all
antibiotics, including the powerful carbapenem antibiotics that are often used as a last resort against serious infections. They are now so resilient that it is virtually
impossible to remove them from medical tools such as catheters and breathing tubes placed into the body, even after cleaning. Then we have gonorrhea, chlamydia,
and other sexually transmitted diseases that we cannot treat and that are spreading all over the world. Anyone who has sex can catch these infections, and because
most people may not exhibit any symptoms they spread infections without anyone knowing about it. Sexually transmitted diseases used to be treatable with
antibiotics, but in recent years we have witnessed the rise of multi-drug resistant STDs. Untreated gonorrhea can lead to infertility in men and women and
blindness and other congenital defect in babies. As is well known, too, we have witnessed many cases of drug-resistant pneumonia. These problems have arisen in

part because of simple mistakes healthcare professionals repeatedly make. Let me explain. Neither superbugs nor common
bacterial infections produce any special symptoms indicative of their cause.
Rashes, fevers, sneezing, runny noses, ear pain, diarrhea, vomiting,
coughing, fatigue, and weakness are signs of common and minor illnesses as
well as uncommonly deadly ones. Therefore, the major problem for
clinicians is to identify a common symptom that may potentially be an early
sign of a major infection that could result in an epidemic. We know that
dangerous infections in any given geographical area do not start at the same
time. They start with one victim and gradually spread. But that victim is only
one among hundreds of patients a doctor will typically see, so many doctors
will miss patients presenting with infections that are serious . They will probably identify
diseases that kill fast, but slow-spreading infections such as skin infections that can lead to septicemia are rarely diagnosed early. In addition, I have

seen doctors treating eczema with antibiotic cream, even though they know
that bacteria are resistant to the majority of these drugs. This sort of action
encourages simple infections to spread locally, because patients are
therefore not instructed to take other, more useful precautions. On top of
that, some people are frivolous about infections and assume doctors are
exaggerating the threat. And some people are selfish. Once I was called to see a passenger during a flight who had symptoms consistent
with infection. He boarded the plane with these symptoms, but began to feel much worse during the flight. I was scared, knowing how infections such as Ebola can
spread. This made me think about a way to screen passengers before they board a flight. Airlines could refund a traveler’s ticket, or issue a replacement, in case of
sickness—which is not the policy now. We currently have no method to block infectious travelers from boarding flights, and there are no changes in the incentive
system to enable conscientious passengers to avoid losing their money if they responsibly miss a flight because of illness. Speaking of selfishness, I once saw a
mother drop her daughter off at school with a serious bout of impetigo on her face. When I asked her why she had brought her daughter to school with a contagious
infection, she said she could not spare the time to keep her at home or take her to the doctor. By allowing this child to contact other children, a simple infection can
become a major threat. Fortunately, I could see the rash on the girl’s face, but other kids in schools may have rashes we cannot see. Incorrect diagnosis of skin
problems and mistaken use of antibiotics to treat them is common all over the world, and so we are continually creating superbugs in our communities. Similarly,
chest infections, sore throats, and illnesses diagnosed as colds that unnecessarily treated with antibiotics are also a major threat. By prescribing antibiotics for viral
infections, we are not only helping bacteria develop resistance, but we are also polluting the environment when these drugs are passed in urine and feces. All of this
helps resistant bacteria to spread in the community and become an epidemic. Ebola is very difficult to transmit because people who are contagious have visible and
unusual symptoms. However, the emerging infections and pandemics of the future may not have visible symptoms, and they could break out in highly populous
countries such as India and China that send thousands of travelers all over the world every day. When a person is infected with a contagious disease, he or she can
expect to pass the illness on to an average of two people. This is called the “reproduction number.” Two is not that high a number as these things go; some diseases
have far greater rates of infection. The SARS virus had a reproduction number of four. Measles has a reproduction number of 18. One person traveling as an
airplane passenger and carrying an infection similar to Ebola can infect three to five people sitting nearby, ten if he or she walks to the toilet. The study that
highlighted this was published in a medical journal a few years ago, but the airline industry has not implemented any changes or introduced screening to prevent
the spread of infections by air travel passengers, a major vehicle for the rapid spread of disease. It is scary to think that nobody knows what will happen when the
world faces a lethal disease we’re not used to, perhaps with a reproduction number of five or eight or even ten. What if it starts in a megacity? What if, unlike Ebola,
it’s contagious before patients show obvious symptoms? Past experience isn’t comforting. In 2009, H1N1 flu spread around the world before we even knew it
existed. The Questions Remains Why do seemingly intelligent people repeatedly do such collectively stupid things? How did we allow this to happen? The answer is
disarmingly simple. It is because people are incentivized to prioritize short-term benefits over long-term considerations. It is what social scientists have called a
“logic of collective action” problem. Everyone has his or her specialized niche interest: doctors their patients’ approval, business and airline executives their
shareholders’ earnings, hospitals their reputations for best-practice hygienics, homemakers their obligation to keep their own families from illness. But no one
owns the longer-term consequences for hundreds of millions of people who are irrelevant to satisfying these short-term concerns. Here is an example. At a recent
Superbug Super Drug conference in London that I attended, scientists, health agencies, and pharmaceutical companies were vastly more concerned with investing
millions of dollars in efforts to invent another antibiotic, claiming that this has to be the way forward. Money was the most pressing issue because, as everyone at
the conference knew, for many years pharmaceutical companies have been pulling back from antibiotics research because they can’t see a profit in it. Development
costs run into billions of dollars, yet there is no guarantee that any new drug will successfully fight infections. At the same conference Dr. Lloyd Czaplewski spoke
about alternatives to antibiotics, in case we cannot come up with new ones fast enough to outrun superbug evolution. But he omitted mention of preventive
strategies that use the internet or communication software to help reduce the spread of infections among families, communities, and countries. It is madness that
we don’t have a concrete second-best alternative to new antibiotics, because we need them and we need them quickly. Of course, this is why we have governments,
which have been known occasionally in the past as commonwealths. Governments are supposed to look out for the wider, common interests of society that niche-
interested professionals take no responsibility for, and that includes public health. It is why nearly every nation’s government has an official who is analogous to
the U.S. Surgeon General, and nearly every one has a public health service of some kind. Alas, national governments do not always function as they should. Several
years ago physician and former Republican Senator Bill Frist submitted a proposal to the Senate for a U.S. Medical Expeditionary Corps. This would have been a
specialized organization that could coordinate and execute rapid responses to global health emergencies such as Ebola. Nothing came of it, because Dr. Frist’s
fellow politicians were either too shortsighted or too dimwitted to understand why it was a good idea. Or perhaps they simply realized that they could not benefit
politically from supporting it. Plenty of mistakes continue to be made. In 2015, a particularly infectious form of bird flu ripped through 14 U.S. states, leading
farmers to preventively slaughter nearly 40 million birds. The result of such callous and unnecessary acts is that, instead of exhausting themselves in the host
population of birds, the viruses quickly find alternative hosts in which to survive, and could therefore easily mutate into a form that can infect humans. Earlier,
during the 1980s, AIDS garnered more public attention because a handful of rich and famous people were infected, and because the campaign to eradicate it
dovetailed with and boosted the political campaign on behalf of homosexual rights. Methicillin resistant Staphylococcus aureus (MRSA) in hospitals, by far the
bigger threat at the time, was virtually ignored. Some doctors knew that MRSA would bring us to our knees and kill millions of people worldwide, but
pharmaceutical companies and device and equipment manufacturers ignored these doctors and the thousands of patients dying in hospitals as a result of MRSA.
They prioritized the wrong thing, and government did not correct the error. And that is partly how antibiotic-resistant infection went from an obscure hospital
problem to an incipient global pandemic. Politics well outside the United States plays several other roles in the budding problem that we are confronting. Countries
often will not admit they have a problem and request help because of the possible financial implications in terms of investment and travel. Guinea did not declare
the Ebola epidemic early on and Chinese leaders, worried about trade and tourism, lied for months in 2002 about the presence of the SARS virus. In 2004, when
avian influenza first surfaced in Thailand, officials there displayed a similar reluctance to release information. Hospitals in some countries, including India, are
managed and often owned by doctors. They refuse to share information about existing infections and often categorically deny they have a problem. Reporting
infections to public health authorities is not mandatory, and so hospitals that fail to say anything are not penalized. Even now, the WHO and the CDC do not have
accurate and up-to-date information about the spread of E. coli or other infections, and part of the reason is that for-profit hospitals are reluctant to do anything to
diminish their bottom line. Syria and Yemen are among those countries that are so weak and fragmented that they cannot effectively coordinate public healthcare.
But their governments are also hostile to external organizations that offer relief. Part of the reason is xenophobia, but part is that this makes the government look
bad. Relatedly, most poor-nation governments do not trust the efficacy of international institutions, and think that cooperating with them amounts to a re-
importation of imperialism. They would rather their own people suffer and die than ask for needed help. That brings us to the level of international public health
governance. Alas, sometimes poor-country governments estimate the efficacy of international institutions accurately. The WHO’s Ebola response in 2014-15 was a
disaster. The organization was slow to declare a public health emergency even after public warnings from Médecins Sans Frontières, some of whose doctors had

This
already died on the front line. The outbreak killed more than 28,000 people, far more than would have been the case had it been quickly identified.

isn’t just an issue of bureaucratic incompetence. The WHO is under-

resourced for the problems it is meant to solve. Funding comes from
voluntary donations, and there is no mechanism by which it can quickly
scale up its efforts during an emergency. The result is that its response to
the next major disease outbreak is likely to be as inadequate as were its
responses to Ebola, H1N1, and SARS. Stakeholders admit that we need another mechanism, and most experts agree that
the world needs some kind of emergency response team for dangerous diseases. But no one knows how to set one up amid the dysfunctional global governance
structures that presently exist. Maybe they should turn to Bill Frist, whose basic concept was sound; if the U.S. government will not act, perhaps some other
governments will, and use the UN system to do so. But as things stand, we lack a health equivalent of the military reserve. Neither government leaders nor doctors
can mobilize a team of experts to contain infections. People who want to volunteer, whether for government or NGO efforts, are not paid and the rules, if any, are
sketchy about what we do with them when they return from a mission. Are employers going to take them back? What are the quarantine rules? It is all completely
ad hoc, meaning that humanity lacks the tools it needs to protect itself. And note, by the way, the contrast between how governments prepare for facing pandemics
and how they prepare for making war. War is not more deadly to the human race than pandemics, but national defense against armed aggression is much better
planned for than defense against threats to public health. There is a wealth of rules regarding it, too. Human beings study and plan for war, which kills people both
deliberately and accidentally, but they do not invest comparable effort planning for pandemics, which are liable to kill orders of magnitude more people. To the

Creating Conditions for Infections to Spread Superbug

mind of a medical doctor, this is strange.

infections spread for several interlocking reasons. Some are medical-

epidemiological. Most of the infections of the past thirty years have started
in one place and in one family. As already noted, they spread because many
infectious diseases are highly contagious before the onset of symptoms, and
because it is difficult to prevent patients who know they are sick from going
to hospitals, work, and school, or from traveling further afield. But again, one reason for
the problem is political, not medical. Many governments have no strategies in place to prevent pandemics because they are unwilling to tell their people how
infections spread. They don’t want to worry people with such talk; it will make them, they fear, unpopular. So governments may have mountains of bureaucracy
with great heaps of rules and regulations concerning public health, but they are generally unwilling to trust their own citizens to use common sense on their own
behalf. This, too, seems very strange. Until now, no one has come forward to help us develop strategies to educate people how to identify and prevent the spread of
infection to their families and communities. The majority of stakeholders have also been oblivious to the use of new technologies to help reduce the spread of these
infections. There are some exceptions. In a fun blog post called Preparedness 101: Zombie Apocalypse, the CDC uses the threat of a zombie outbreak as a metaphor
to encourage people to prepare for emergencies, including pandemics. It is well meaning and insightful, yet when my colleagues and I try to discuss ways of scaling
up the CDC’s example with doctors and nurses, they shut down. Nobody plans for an actual crisis partly because it is too scary and hence paralyzing to think about.
But it is also because it is not most health professionals’ job; it is not what they are trained and paid to do. It is always someone else’s job, except that it has turned

Worse, the situation is not static. While we sit paralyzed,

out to be nobody’s job.

superbugs are evolving. Epidemiological models now predict how an

algorithmic process of disease spread will move through the modern world.
All urban centers around the entire globe can become infected within sixty
days because we move around and cross borders much more than our
ancestors did, thanks to air travel. A new pandemic could start crossing
borders before we even know it exists. A flu-like disease could kill more
than 33 million people in 250 days.3
 1NC – DA
The stimulus bill passes now – trump is pushing it
Zeballos-Roig YESTERDAY [Joseph Zeballos-Roig, bachelor's degree in
international affairs, Trump urges Congress to pass a 'big and focused' coronavirus relief
bill in 1st stimulus comments since losing the election, Business Insider, 11-14-2020,
Accessible Online at https://www.businessinsider.com/trump-congress-big-focused-
coronavirus-relief-bill-2020-11] DL 11-14-2020

President Donald Trump called on Congress to pass a coronavirus relief bill on Saturday in
his first stimulus remarks since losing the election to Joe Biden. "Congress must
now do a Covid Relief Bill," he wrote on Twitter. "Needs Democrats support. Make it big
and focused. Get it done!" Trump's remarks are the first on the subject since Biden won the presidential election. Before November 3, the president
constantly called for another stimulus package. At times, Trump suggested he could support a larger plan than the

$2.4 trillion in further spending that Democrats wanted.

Congress is in negotiations now—looming shutdown deadline

incentivizes sides to reach a deal now, but Biden and
bipartisanship are key—the bill’s key to the economy
Werner et al 11-8 [Erica Werner, Congressional reporter focusing on economic
policy, Paul Kane, Senior congressional correspondent and columnist, and Yasmeen
Abutaleb, National reporter focusing on health policy Washington Post, Lame-duck
Congress and lame-duck president face huge challenges in coming weeks, 11-8-2020,
Accessible Online at https://www.washingtonpost.com/us-policy/2020/11/08/congress-
lame-duck-trump/] SW 11-13-2020
Lawmakers return to Washington on Monday for Congress’s lame-duck session confronting a number of major problems but lacking clear signals from President

Congress
Trump — even as President-elect Joe Biden and his team are poised to begin engaging with congressional Democrats on their priorities.

faces a government shutdown deadline and crucial economic relief

negotiations at a moment of extraordinary national uncertainty, with Trump refusing to concede the presidential election and with coronavirus cases
spiking nationwide. Even before Biden takes office on Jan. 20, Congress must contend with a Dec. 11

government funding deadline. Failure to reach a deal would result in a

government shutdown , and Trump has not signaled whether he would sign a new spending bill. At the same time, House Speaker Nancy
Pelosi (D-Calif.) and Senate Majority Leader Mitch McConnell (R-Ky.) have both expressed the desire to
pass new economic and health-care relief measures to address the surging
coronavirus pandemic — something Congress has not been able to do since the spring. But it is uncertain
whether they will be able to find common ground in the weeks ahead : McConnell is
pushing for a narrow and targeted bill, while Pelosi continues to insist on a broader and bolder relief package. Members of Biden’s transition

team, meanwhile, are expected to begin conversations with congressional

Democrats and aides this coming week to map out a strategy for the lame-duck session, with
the aim of getting money for their priorities in spending legislation before the end of the year, two people familiar with the developments said Sunday. They spoke

Lame-duck sessions of Congress can be

on the condition of anonymity because the conversations were private.

ceremonial affairs, particularly as one presidential administration begins its exit and a new one prepares to take control. But this
transition is already shaping up to be much different, with the country
facing severe economic uncertainty and the coronavirus pandemic entering
a deadly new phase. Since Election Day on Tuesday, Trump has not publicly expressed much interest in changing course on the economy or
coronavirus response. Trump administration officials have indicated they are unlikely to play much of a role in

any new round of stimulus talks, instead letting McConnell take the lead . Meanwhile, Biden allies predicted Sunday that
 Biden and Vice President-elect Kamala D. Harris will press Congress to
produce a compromise coronavirus relief bill that has eluded lawmakers and Trump administration officials
for months. “Joe is going to be able to pull together leaders in Congress to deliver the relief that we need and
deserve, and one way that President Trump can show some graciousness in the next 73 days during the transition is to publicly support a significant pandemic
relief bill,” Sen. Christopher A. Coons (D-Del.), a top Biden surrogate, said Sunday on ABC’s “This Week.” Biden’s deputy campaign manager, Kate Bedingfield,
said that “the work starts right away,” with Biden preparing to announce a coronavirus task force Monday and begin the work of a presidential transition in

earnest. “ He’ll be making calls . He’ll be making announcements to the American people about how he’s going to make good on these
campaign promises,” Bedingfield said on NBC’s “Meet the Press.” Despite Biden’s victory, McConnell could very well retain his role as majority leader in the new
Congress, although that outcome depends on the results of two runoff Senate races in Georgia in early January. Pelosi will also continue as speaker, although she
will be presiding over a smaller majority after Democrats performed below their expectations in House and Senate races in Tuesday’s election. Republican
lawmakers argued Sunday that those results amounted to a rejection of far-left policies and a call for compromise, most immediately on legislation addressing the
coronavirus crisis. Cases are on the rise nationally, and the economy is showing signs of slowing back down after much of the stimulus money Congress approved
in the spring has dried up. “We begin, I think, with an immediate need to get relief to families and small businesses that are suffering as a result of the economic

Romney (R-Utah) said on CNN. “That’s something we’re going to have to do, and we’re
downturn associated with covid,” Sen. Mitt

going to have to do it in a bipartisan way .” Romney is among just a handful of GOP leaders who have offered
congratulations to Biden on his victory. Others, such as Sen. Patrick J. Toomey (R-Pa.), are calling for the vote-counting process to conclude before Biden’s victory
can be conclusive, though Toomey said Sunday on CBS that “the media projection is probably correct.” A handful of Trump’s staunchest allies insisted Sunday that
the election is far from over. Sen. Lindsey O. Graham (R-S.C.), who chairs the Senate Judiciary Committee, claimed in an interview on Fox News’s “Sunday
Morning Futures” that there have been suspect voting incidents in Pennsylvania, Michigan and elsewhere. “And I’m hellbent on looking at it,” Graham said. “Do
not accept the media’s declaration of Biden. Fight back.” There is no evidence of any widespread fraud in the election. But the divisions among congressional
Republicans over whether to acknowledge Biden as the president-elect mean that negotiations over a new spending package or coronavirus relief bill will proceed

Those spending negotiations are expected to begin in earnest

under something of a cloud.

this week as lawmakers work to cobble together a massive package

wrapping up the 12 annual must-pass spending bills that fund government
agencies. McConnell and Pelosi have said they want to finish work on the
fiscal 2021 spending bills during the lame-duck session , rather than just
passing another short-term funding extension on Dec. 11 that would punt
the real work of funding the government to the next administration. If they cannot
agree on new spending legislation, however, a short-term “continuing resolution” would become the likeliest fallback. Any number of thorny issues are likely to
arise in the course of spending talks, including how much money to devote to certain programs and language over abortion that perennially divides the parties. It is

economic relief measures, which could

uncertain whether the work on spending legislation will collide with negotiations over

be attached to the spending bill or move separately. Lawmakers in both parties widely
agree on the need for more spending on health-care systems, vaccines,
schools and small businesses, and McConnell and Pelosi have indicated
support for sending out a new round of $1,200 stimulus checks to
individuals. McConnell also indicated support shortly after the election for sending additional aid to cities and states, something that has been a
central Democratic demand. But McConnell and Pelosi have been far apart on the overall price tag of any economic relief legislation, with McConnell arguing this
past week that a jobs report showing unemployment had dropped to 6.9 percent supported his push for a narrower relief bill — a position Pelosi rejected. Pelosi has
pushed for legislation with a price tag north of $2 trillion, while McConnell has backed a bill costing around $500 billion. If they cannot get a deal in the lame-duck
session, that would leave Biden with the job of cobbling together a new economic relief bill as an early priority when he takes office, while Americans who have

another issue pending for the lame-duck session, Congress

been waiting months for additional relief would have to wait even longer. In

has yet to unveil or vote on a compromise version of the annual defense

authorization bill, which got hung up in a dispute over whether military installations named after Confederate generals should be renamed.
Trump had threatened to veto any legislation requiring the name changes.

CJR causes Senate GOP in-fighting.

Zhou 18 -- Li Zhou reporter @ Vox, 12-12-2018. ("Republicans’ civil war over criminal
justice reform, explained," https://www.vox.com/2018/12/12/18131130/mitch-
mcconnell-criminal-justice-reform)//MGreen

another twist to Senate Republicans’

Louisiana Republican John Kennedy just added yet
heated internal fight over criminal justice reform .
Kennedy — a longstanding opponent of sentencing changes in criminal justice legislation — said he intends to block a vote
on the bill this Thursday, because he’d like some more time to review it, according to BuzzFeed’s Paul McLeod.
 a contentious back-and-forth that has roiled
Kennedy’s move marks the latest development in
Senate Republicans — who are deeply divided on the matter, despite President
Donald Trump’s endorsement of the legislation .

On the one hand, there’s Sens. Chuck Grassley, Lindsey Graham, Tim Scott and Rand Paul, who are among a vocal GOP
contingent pressing the Senate to support the First Step Act, a bipartisan criminal justice reform bill aimed at easing
prison sentences for those incarcerated in the federal system. On the other, there’s
a group of Senate
Republicans, including most prominently Sen. Tom Cotton , who have vowed
to oppose the legislation and argue that it could give violent criminals a pass.

The result is a split among Republicans during a time when, increasingly,

everything is partisan : There is a small but dedicated group of Republicans
for whom criminal justice reform feels personal. There is another subset of
Republicans who worry it makes the party of “law and order” seem weak
on crime . And there’s a president who, as a criminal probe into his campaign’s activities during the election circles
closer, no one is quite sure where he stands despite his official support.

Because of these intra-party dynamics , Senate Majority Leader Mitch McConnell had
been reluctant to bring the bill to the floor, though he announced that he would do so earlier this
week.

Great power war

Sandaram 19 [Jomo Kwame Sundaram, a former economics professor, was United
Nations Assistant Secretary-General for Economic Development, and received the
Wassily Leontief Prize for Advancing the Frontiers of Economic Thought, and Vladimir
Popov is a Research Director at the Dialogue of Civilizations Research Institute in Berlin,
“Economic Crisis Can Trigger World War,” Feb 12, 2019,
http://www.ipsnews.net/2019/02/economic-crisis-can-trigger-world-war/]
Economic recovery efforts since the 2008-2009 global financial crisis have mainly depended on unconventional monetary
policies. As fears rise of yet another international financial crisis, there are growing concerns about
the increased possibility of large-scale military conflict. More worryingly, in the current
political landscape, prolonged economic crisis , combined with rising economic
inequality, chauvinistic ethno-populism as well as aggressive jingoist rhetoric, including
threats, could easily spin out of control and ‘morph’ into military conflict, and
worse, world war . Crisis responses limited The 2008-2009 global financial crisis almost
‘bankrupted’ governments and caused systemic collapse. Policymakers
managed to pull the world economy from the brink, but soon switched from
counter-cyclical fiscal efforts to unconventional monetary measures , primarily
‘quantitative easing’ and very low, if not negative real interest rates. But while these monetary interventions
averted realization of the worst fears at the time by turning the US economy around, they did little to address
underlying economic weaknesses, largely due to the ascendance of finance in recent decades at the expense
of the real economy. Since then, despite promising to do so, policymakers have not seriously pursued, let alone achieved,
such needed reforms. Instead, ostensible structural reformers have taken advantage of the crisis to pursue largely
irrelevant efforts to further ‘casualize’ labour markets. This lack of structural reform has meant that the unprecedented
liquidity central banks injected into economies has not been well allocated
to stimulate resurgence of the real economy. From bust to bubble Instead, easy credit raised
asset prices to levels even higher than those prevailing before 2008. US house prices are now 8% more than at the peak of
the property bubble in 2006, while its price-to-earnings ratio in late 2018 was even higher than in 2008 and in 1929, when
the Wall Street Crash precipitated the Great Depression. As monetary tightening checks asset
price bubbles, another economic crisis — possibly more severe than the last, as the economy has
become less responsive to such blunt monetary interventions — is considered likely. A decade of such unconventional
monetary policies, with very low interest rates, has greatly depleted their ability to revive the economy. The implications
beyond the economy of such developments and policy responses are already being seen. Prolonged economic
distress has worsened public antipathy towards the culturally alien — not only abroad,
but also within. Thus, another round of economic stress is deemed likely to foment
unrest , conflict , even war as it is blamed on the foreign.
 1NC – DA
Democrats in Georgia will win now — presidential results, high
turnout, and campaigning.
Stewart 11/10 — Briana Stewart, Campaign Reporter for ABC News, 2020 ("Balance
of power in the Senate rests on election runoffs in Georgia," ABC News, November 10th,
Available Online at https://abcnews.go.com/Politics/democratic-candidate-jon-ossoff-
georgia-senate-race/story?id=74107561, Accessed 11-13-2020)
"That doesn't worry me at all. ... There was no enthusiasm in Georgia, even
among Republican voters for incumbent senators David Perdue or Kelly
Loeffler," he said.
Ossoff believes while Democrats are invigorated by the results in the election,
Republican voters will not show up when President Donald Trump is not on
the ballot.
"Those who came out and voted for him weren't motivated because they
support Loeffler and Perdue; they were voting in the presidential race," the
Democratic Senate candidate said.
"Meanwhile Georgia Democrats have tremendous momentum. We're
invigorated by our success here. This has been a 10-year effort to register
voters, organize and train volunteers as the state becomes younger and
more diverse. And we're ready to proceed and win these runoff elections," he
continued.
The momentum in Georgia was brought on, in large part, by Abrams who
founded Fair Fight and The New Georgia Project, two separate voting rights
organizations, which increased voter registration and voter turnout in the
2018 and 2020 elections.
The New Georgia Project has already begun recruiting volunteers to help
with canvassing efforts for Ossoff and Warnock.
Jaira Burke, rapid response director of the New Georgia Project, told ABC News that the
organization will work to galvanize Democratic voters through January.
"We're going to be registering people to vote, talking to people about the electoral
process and how that impacts their lives," Jaira Burke said.
Abrams has raised over $7.2 million through Act Blue, an online fundraising
platform for Democratic candidates. The money raised will be split evenly
between Fair Fight, Ossoff and Warnock.
Criminal justice reform creates a policy distraction and
emboldens “law and order” attacks — that guarantees that Dems
lose.
Caygle and Ferris 11/5 — Heather Caygle, Congress Reporter for Politico, and
Sarah Ferris, Congress Reporter for Politico, 2020 ("Dem leaders warn liberal rhetoric
could blow Georgia races," Politico, November 5th, Available Online at
https://www.politico.com/news/2020/11/05/house-democrats-warn-caucus-left-
434428, Accessed 11-10-2020)
Speaker Nancy Pelosi and her top lieutenants had a stark warning for Democrats on
Thursday: Swing too far left and they’re all but certain to blow their chances
in the Georgia runoff that will determine which party controls the Senate.
Congressional Democrats are collectively pinning their hopes on a pair of
Senate races in January in one of the most competitive states in the nation —
an outcome that could determine whether Democrats hold all levers of
power in Washington next year, despite a disappointing night on Tuesday. While Joe
Biden is looking likely to win the presidency, Democrats were shut out of key Senate
races, dashing their hopes of reclaiming control of the chamber, and lost ground in the
House despite being expected to significantly expand their majority.
When the next Congress convenes in January, Republicans look favored to
carry a narrow majority into the Georgia runoff, with undeclared races in Alaska
and North Carolina leaning in their favor. But if Democrats were able to win both
Georgia Senate seats — a long shot, to say the least — they would secure control
of the chamber with a Biden White House as the tie-breaker.
If “we are going to run on Medicare for All, defund the police, socialized medicine,
we're not going to win," House Majority Whip Jim Clyburn (D-S.C.) warned
on the caucus call, according to three people listening.

The Democrats' warning comes as lawmakers try to assign blame over their
election night losses, with progressives' ambitions beginning to emerge as a
top target that could hinder left-leaning policies from advancing in the
House.

Pelosi also had her own message to House Democrats, telling them to focus
on an "agenda of lowering health care, better paychecks, building
infrastructure.” While she didn’t explicitly say it, those ideas are more likely to
be appealing to moderate Georgia voters who will decide the fate of the
Senate in January.
The next two months leading up to the Jan. 5 runoff will be “fraught with
meaning” Pelosi added.
“This has been a life or death fight for the very fate of our democracy. We did not win
every battle, but we did win the war,” Pelosi said on the call. “We held the House. Joe
Biden is on a clear path to be the next president of the United States.”
In the hotly contested Georgia races, GOP Sen. David Perdue is expected to
face off against Democratic challenger Jon Ossoff and GOP Sen. Kelly
Loeffler will take on Democratic candidate Raphael Warnock.
Democrats and Republicans in Congress will likely spend those two months battling over
a massive coronavirus stimulus package — which has already divided both parties for
months — as well as the presidential transition and a potentially seismic Supreme Court
decision on the fate of Obamacare.
The comments from Pelosi and Clyburn echo many private conversations that have taken
place among members and top aides in the past 48 hours, with moderate Democrats
and even some left-leaning members arguing that GOP attacks on “socialism”
and “law and order” cost their party support in Trump country.
The call grew emotional at times as some members who lost their races spoke up,
including Rep. Debbie Mucarsel-Powell of Florida, who started crying while urging
Democrats to remain unified and not “tweet” attacks at one another. Others were clearly
not appeased by Pelosi touting the wins for Democrats on Tuesday night — including
Biden’s potential victory — saying that didn’t make up for the disappointment of missing
a shot at taking over the Senate and losing at least half a dozen Democratic centrists in
the House.
Rep. Abigail Spanberger of Virginia, a Blue Dog whose race remains uncalled though she
declared victory this week, grew angry as she warned her party against some of
the rhetoric she argued hurt moderate Democrats like herself, saying the
election results were a “failure.”
“No one should say ‘defund the police’ ever again,” Spanberger said on the call,
according to two sources. “Nobody should be talking about socialism."
Spanberger also warned that if Democrats kept up their tactics in 2022: "We will
get f------ torn apart."
Spanberger was one of several battleground Democrats who faced a barrage
of GOP attack ads accusing her of attempting to “ defund the police ” after
she voted for a policing reform bill this summer amid a national reckoning
over police brutality and systemic racism.

Flipping the Senate solves democracy

Bunch, '19 (Will Bunch is the national opinion columnist at the Philadelphia
Inquirer, "Mitch McConnell’s democracy-crushing smirk is why just getting rid of Trump
isn’t enough," The Philadelphia Inquirer, https://www.inquirer, 6-2-2019,
https://www.inquirer.com/opinion/commentary/mitch-mcconnell-senate-democracy-
threat-supreme-court-trump-impeachment-20190602.html, accessed 6-20-2020, SShaf)
**edit for possibly triggering language denoted in brackets**
So this is how liberty dies with a — hideous, utterly shameless smirk on the face of arguably the most cynical political leader in American history, as the warriors in

his political tribe cackle with laughter. The end came Tuesday in about the most out-of-the-way venue you could imagine: a chamber of commerce luncheon in Paducah, Ky., where Mitch McConnell — the 77-year-old son
of bluegrass country, now one of America’s three most powerful politicians as Senate majority leader — was finally asked a question that’s long been on people’s minds, about how he might handle an unexpected Supreme Court vacancy if one

occurs during the 2020 presidential election. It was in 2016, you surely remember, that Justice Antonin Scalia died suddenly and McConnell wouldn’t allow even then-President Barack
Obama’s nominee , a thoroughly decent federal appeals court judge named Merrick Garland, to get a hearing . This wasn’t, McConnell insisted at the time, what it looked
like — denying Obama his constitutional power to fill a vacancy that was never questioned for the 42 (cough, cough ... white) presidents who came before him, and a naked power play to make sure pro-business judges set our laws for the next 40

years. No, the Senate leader told us, this was about
democratic principles the highest , that "[t]he American

Three years later, McConnell is

people should have a voice in the selection of their next Supreme Court Justice,” while also claiming political precedents that didn’t really exist.

telling us people’s voice is only audible when it’s Republican voters

now that the

looking to replace a Democratic POTUS . “Oh, we’d fill it,” McConnell said Tuesday, unable to suppress his laughter that quickly spread through a room of

a U.S.
Kentuckians who also see the lighter side of 21st-century neo-fascism. He prattled on for a minute or two about the importance of a permanent wall of judges which, in his words, “cannot be undone.” That’s just proof of how

government with McConnell

that fails to enshrine one person, one vote (neither in the electoral college nor the small-state rural dominance of the Senate) can — the aid of ’s ruthless

will control women’s bodies while cramming pro-corporate

realpolitik — create a judiciary that

pablum down the throat of a nation that gives more popular votes to
Democrats running for president and for our hopelessly (6 out of the last 7 times)

gerrymandered Congress the Senate leader’s . McConnell’s comment got some news coverage, but not as much as it should have. For one thing,

amoral political cynicism has been barely concealed since Obama (if at all) ever the dawn of the
presidency, when he declared the goal of what was once known, years ago, as “the world’s greatest deliberative body” was no longer to pass laws but to deny Obama a second term. And a lot of important news gets drowned underneath the Iowa-
level flooding that is President Trump’s daily barrage of inane tweets and increasingly dictatorial policy pronouncements. But May 28, 2019 should be marked on the calendar of American history as the day that democracy was taken off life
support and officially declared dead — because there’s no longer even the slightest pretense of pretending that the ancient words of the U.S. Constitution, fealty to the rule of law, and 243 years of imperfectly upheld democratic norms matter

McConnell and Trump

anymore. are in an arms race to see — soon to be helped, no doubt, by the Brett Kavanaugh Supreme Court — now

who can blow up America’s founding documents faster through illegal wars ,

and arms deals, tariffs

by dictatorial fiat, ignoring subpoenas and now judicial orders ... all with that same knowing smirk.

McConnell’s crimes against democracy

Let’s quickly review a couple more of For past and probable future , lest you think that was an exaggeration: – all

efforts to cover up
the (justified) talk about Russian interference in the 2016 presidential the extent of

election no actor did more than McConnell who

, arguably blocked damage , in September of that fateful year explicitly

the Obama administration from warning the public about Putin’s ploy and Vladimir

from taking stricter measures to stop it. (Then, in a cynical ploy almost as shameless as his Supreme Court flip-flop, he used April’s release of the Mueller
report to blame it all on Obama.) In 2019, McConnell is blocking bills that might prevent Russian interference in 2020. – What does McConnell get out of his less-than-vigilant approach to Russian meddling in our democracy? One of his biggest
donors (a whopping $3.5 million to McConnell’s leadership PAC) is Russian-born U.S. citizen Len Blavatnik, who’s maintained close ties in his homeland and has business partnerships with two Russian oligarchs who’ve figured prominently in

McConnell used his Senate clout to get U.S. sanctions

Trump-tied scandals, Viktor Vekselberg and Oleg Deripaska. recently

lifted on Deripaska and Rusal which his large aluminum company , promptly announced a plan to invest $200 million in a new plant ... in McConnell’s Kentucky. (His

might be the Russian mafia

biggest home state newspaper wrote flatly that “Kentucky McConnell going into business with .”) – Since Trump’s election, has taken

ramming through more

a running tit-for-tat with Democrats over judicial nominations to its ultimate nuclear extreme, not just the president’s two high-profile Supreme Court picks but

than 100 federal judicial nominees while refusing to even (the vast majority of them white men, naturally)

consider progressive bills like the Equality Act

a slew of judges sent over since this winter by a Democrat-led House. These

will guarantee for decades a legal order that protects the white patriarchy
and business elites , in opposition to the will of the American people who are becoming ever younger, more diverse, and less enamored with the inequality baked into today’s capitalism. – Believe it or not,
things could get worse. This week there were reports that — if the House carries out its constitutional duty and votes to impeach Trump after airing the evidence in public hearings — McConnell and his Senate won’t bother to conduct a proper
trial as was held for Bill Clinton in 1999, but stage a brief kangaroo court to absolve the president. That would be the equivalent of firing another round of bullets into democracy’s already motionless corpse. The contrast right now between the

the House Speaker Pelosi

two centers of power on Capitol Hill could not be greater. In , Nancy — with her ability to keep a ridiculously diverse Democratic caucus together, both to win votes

has been America’s best traditional lawmaker since LBJ the

and support her leadership — . But

traditions she honors that are — as shown by her reluctance to confront the ongoing assault on the rule of law with Trump’s impeachment — are those of the 20th century, and they

getting steamrolled by McConnell hold for the unwritten rules of the lack of respect that either Trump or

the democracy road. McConnell’s [tight grip] on American politics

As stranglehold 21st-century

becomes clear , there’s been something of a cottage industry to discover why Mitch does what he does — to somehow find the soul inside this democracy-crushing machine. Within the last year, the New York Times
Magazine invested months of reporting on McConnell, including interviews, seeking to find the motive. There was nothing there. The Kentuckian’s life journey from a young man who was ambitious but with a dollop or two of idealism — learning
from a popular center-left war hero, Sen. John Sherman Cooper, hearing the words of Martin Luther King if not absorbing them — to a power-crazed institutionalist isn’t unique, but his long, strange trip has been even more amoral than most.

The question that matters going into 2020 is “how How

It’s pointless to ask “why” about Mitch McConnell. only ”—

can McConnell be stopped term, his rise and his unholy reign pose hard ? In the long

questions about the very nature of American democracy and its foundation —

whether the constitutional checks and balances of a Senate that gives

citizens in Wyoming so much more power than their fellow Americans in
California makes sense in today’s world. McConnell’s assault on But

democracy can be stopped in the short run the

also leader is up for . For starters, Senate majority

reelection Democrats can

in 2020, and even if you don’t live or vote in Kentucky, any American can donate or volunteer to help his election opponents. But even if that falls short,

end McConnell’s reign as leader — and make sure he’s not thwarting the
replacements for aging Supreme Court justices like Ruth Bader Ginsburg or
Stephen Breyer — with a net gain of three or four Senate seats. For anyone who cares about

liberty beating McConnell

keeping is every bit as important as beating Trump
alive, next year .
That’s why it’s so frustrating that the elites of the Democratic Party don’t seem to get it. Rather than making a reclamation of the Senate the national moral crusade that it needs to be, the allure of the Trumpian reality show has sucked the top tier
of potential candidates — Beto O’Rourke and Julian Castro of Texas, Steve Bullock of Montana and Stacey Abrams of Georgia — into the presidential race or related pursuits. Vanity and shortsightedness could leave a President Warren or Harris
or Biden one vote short in 2021 of the progress that their voters demanded. The only good news is that the 2020 general election is still 16 months away — plenty of time for the Democrats and concerned voters to shift gears, make the Senate a
priority, keep liberty alive ... and wipe the smirk off Mitch McConnell’s face.

Democratic spread puts a cap on conflict, and authoritarianism

makes all of their impacts more likely
Diamond 19 – PhD in Sociology, professor of Sociology and Political Science at
Stanford University (Larry, “Ill Winds: Saving Democracy from Russian Rage, Chinese
Ambition and American Complacency,” Kindle Edition)
To make our republics more perfect, established democracies must not only adopt reforms to more fully include and
empower their own citizens. They must also support people, groups, and institutions struggling to achieve democratic
values elsewhere. The best way to counter Russian rage and Chinese ambition is to show that Moscow and Beijing are on
the wrong side of history; that people everywhere yearn to be free; and that they can make freedom work to achieve a more
just, sustainable, and prosperous society. In our networked age, both idealism and the harder imperatives of global power
and security argue for more democracy, not less. For one thing, if we do not worry about the quality of governance in
lower-income countries, we will face more and more troubled and failing states. Famine
and genocide are
the curse of authoritarian states, not democratic ones. Outright state collapse is the
ultimate, bitter fruit of tyranny. When countries like Syria, Libya, and Afghanistan descend into civil war; when poor
states in Africa cannot generate jobs and improve their citizens’ lives due to rule by corrupt and callous strongmen; when
Central American societies are held hostage by brutal gangs and kleptocratic rulers, people flee—and wash up on the
shores of the democracies. Europe and the United States cannot withstand the rising pressures of immigration unless they
work to support better, more stable and accountable government in troubled countries. The
world has simply
grown too small, too flat, and too fast to wall off rotten states and pretend
they are on some other planet. Hard security interests are at stake. As even the
Trump administration’s 2017 National Security Strategy makes clear, the main threats to U.S. national
security all stem from authoritarianism, whether in the form of tyrannies from
Russia and China to Iran and North Korea or in the guise of antidemocratic terrorist
movements such as ISIS. 1 By supporting the development of democracy around the
world, we can deny these authoritarian adversaries the geopolitical running
room they seek. Just as Russia, China, and Iran are trying to undermine democracies to bend other countries to
their will, so too can we contain these autocrats’ ambitions by helping other countries
build effective, resilient democracies that can withstand the dictators’ malevolence. Of course,
democratically elected governments with open societies will not support the American line on every issue. But no free
society wants to mortgage its future to another country. The American national
interest would best be
secured by a pluralistic world of free countries —one in which autocrats can
no longer use corruption and coercion to gobble up resources, alliances, and
territory. If you look back over our history to see who has posed a threat to the
United States and our allies, it has always been authoritarian regimes and empires. As
political scientists have long noted, no two democracies have ever gone to war with each
other—ever . It is not the democracies of the world that are supporting
international terrorism, proliferating weapons of mass destruction, or
threatening the territory of their neighbors.
 1NC – CP
CP: The United States Supreme Court should make an 8th
amendment ruling that the death penalty is unconstitutional
because it violates the ICCPR and customary international law.

A court ruling on the eight amendment solves and aligns with

the ICCPR - empirics
Burleson 5 (Elizabeth Burleson, Juvenile Execution, Terrorist Extradition, and
Supreme Court Discretion to Consider International Death Penalty Jurisprudence, 68
Alb. L. Rev. 909 (2005).) [edited for ableist language]
Since the Eighth Amendment comes from a provision in the English Declaration of
Rights of 1689,67 United Kingdom jurisprudence has significant relevance in
determining what is cruel and unusual. The United Kingdom, currently without a death
penalty, abolished juvenile execution long before addressing capital punishment
generally. Parliament ended juvenile executions by enacting the Children and Young
Person's Act of 193368 and the Criminal Justice Act of 1948.69 The United States has a
distinct national character from that of the United Kingdom. Yet, as Justice Kennedy has
pointed out, "[iut does not lessen our fidelity to the Constitution or our pride in its
origins to acknowledge that the express affirmation of certain fundamental rights by
other nations and peoples simply underscores the centrality of those same rights within
our own heritage of freedom."7 ° This statement builds upon Atkins' 2002 reaffirmation
that the Supreme Court may consider international developments in
determining "evolving standards of decency." 7 " 64 Id. at 1200; see also Brief
of Amici Curiae Human Rights Committee of the Bar of England and Wales, Human
Rights Advocates, Human Rights Watch, and the World Organization for Human Rights
USA, 2005 WL 1628523, at *12, Roper v. Simmons, 125 S. Ct. 1183 [hereinafter Human
Rights Brief]. 65 Roper, 125 S. Ct. at 1200. 6 Id. at 1215-16 (O'Connor, J., dissenting). 6'7
According to the Human Rights Brief, the principle of cruel and unusual punishment
itself came from the Magna Carta. See Human Rights Brief, supra note 64, at *4. The
English Declaration of Rights of 1688 states that, "excessive bail ought not to be required
nor excessive Fines imposed; nor cruel and unusual Punishments inflicted." 1 W. & M., c.
2, §10, in 9 Eng. Stat. at Large 69 (1770). 68 Children and Young Person's Act, 1933, 23
Geo. 5, c. 12, § 53, sched. 1 (Eng.) (rejecting execution of those who were eighteen when
they were sentenced). 69 Criminal Justice Act, 1948, 11 & 12 Geo. 6, c. 58, § 16 (Eng.)
(abolishing capital punishment for individuals under eighteen at the time their crime
was committed). 70 Roper, 125 S. Ct. at 1200. 71 See Atkins, 536 U.S. at 311-12. Atkins
returned to Thompson's approach rather than the approach taken in Stanford. See id. at
316 n.21. While the Court in Thompson said that 20051 HeinOnline -- 68 Alb. L. Rev. 921
2004-2005 Albany Law Review 3. Atkins v. Virginia, Mental Retardation, and
Comparative Constitutionalism In its 1989 Penry v. Lynaugh decision, the U.S. Supreme
Court ruled that the execution of individuals who are mentally [disabled] did not violate
the Eighth Amendment of the United States Constitution.72 Such a condition was only a
mitigating factor since a "national consensus" had not evolved against putting people
who were mentally [disabled] to death. Georgia and Maryland were the only states to
have banned executions of this kind. By 2002, the Court was able to find that a
national consensus had evolved against executing people with mental
retardation since sixteen more states had prohibited such executions. Given
this development, the Court in Atkins v. Virginia found the execution of
people who are mentally [disabled] to be an unconstitutional violation of
the Eighth Amendment's ban on cruel and unusual punishment.73 The
Supreme Court's reference in Atkins to the amicus curiae brief filed by the
European Union in favor of a ban indicates that the United States' death
penalty policy can be influenced by international legal and political
developments.74 Comparative constitutionalism appears to be emerging as a means
by which the U.S. Supreme Court determines contemporary standards of
decency regarding cruel and unusual punishment and due process.75 Justice
Brennan's Stanford dissent,76 a plurality in Thompson,77 the majority in Atkins,7 and
the majority in Roper79 used a comparative the laws and practices of other nations were
relevant to determining current standards of decency, Thompson v. Oklahoma, 487 U.S.
815, 830-31 & n.31 (1988), Justice Scalia's majority opinion in Stanford stated that the
practices of foreign countries should not be considered. Stanford, 492 U.S. at 369 n.1. 72
Penry v. Lynaugh, 492 U.S. 302, 340 (1989). "' Atkins, 536 U.S. at 321 (holding that the
execution of prisoners with mental retardation was unconstitutional since a "national
consensus" had developed that such executions were cruel and unusual punishment). No
states had reinstated juvenile capital punishment and many states had passed legislation
prohibiting executions of offenders with mentally retardation. See id. at 315-16. 4 See
Dieter, supra note 17. 7 A plurality of the Court in Trop v. Dulles noted that the scope
of the Eighth Amendment is not fixed ; rather "evolving standards of
decency" should be used in determining cruel and unusual punishment. 356
U.S. 86, 100-01 (1958); see Ruti Teitel, Comparative Constitutional Law in a Global Age,
117 HARV. L. REV. 2570, 2594-95 (2004). 76 Stanford, 492 U.S. at 389-90 (Brennan, J.,
dissenting). 7 Thompson v. Oklahoma, 487 U.S. 815, 830-31 (1988) (plurality opinion).
Justice Scalia made the counter-argument that international law should not be relevant
to constitutional interpretation. See id. at 868 n.4 (Scalia, J., dissenting). " Atkins, 536
U.S. at 316 n.21. The dissent argued that national developments, particularly state
legislation, should provide the basis for decency. Id. at 324-25 (Rehnquist, [Vol. 68
HeinOnline -- 68 Alb. L. Rev. 922 2004-2005 International Death Penalty
Jurisprudence analysis of international developments to determine evolving standards of
decency. Beyond the death penalty context, Lawrence v. Texas found a due process
violation in part by considering ECHR jurisprudence. 80 C. Lawrence v. Texas and
Consideration of International Developments In Lawrence v. Texas, Justice Kennedy
explained that: Had those who drew and ratified the Due Process Clauses of the Fifth
Amendment or the Fourteenth Amendment known the components of liberty in its
manifold possibilities, they might have been more specific. They did not presume to have
this insight. They knew times can blind us to certain truths and later generations can see
that laws once thought necessary and proper in fact serve only to oppress.1 Lawrence
overturned Bowers v. Hardwick.2 In 2003, Lawrence marked a turning point in
the Supreme Court's readiness to consider laws beyond the United States .
83 The Court looked to the ECHR and ICCPR in determining the evolving
standards of decency regarding sexual orientation. In three separate
decisions, the European Court of Human Rights has interpreted the ECHR as
prohibiting criminalization of private, same-sex sexual conduct between consenting
adults.8 " In the 1981 Dudgeon v. United Kingdom decision, the European Court of
Human Rights found that Northern Ireland's sodomy law could not be justified under
Article 8(2) as necessary in a democratic society for the protection of morals or the rights
and freedoms of others.8 5 In reaching this conclusion, the European Court of Human
Rights observed that the majority of the member states of the Council of Europe did not
have similar laws.8 6 It went on to note that Northern Ireland itself had not C.J.,
dissenting). 79 Roper, 125 S. Ct. at 1198-1200. 8o See Lawrence v. Texas, 539 U.S. 558,
576 (2003). s, Id. at 578-79. 82 Id. at 578 (overruling Bowers v. Hardwick, 478 U.S. 186
(1986)). Bowers had upheld the constitutionality of a Georgia sex statute that prohibited
private consensual adult sodomy between two men. Id. at 196. 83 Diane Marie Amann,
"Raise the Flag and Let it Talk" On the Use of External Norms in Constitutional Decision
Making, 2 INT'L J. CONST. L. 597, 598 (2004). 84 Dudgeon v. United Kingdom, 45 Eur.
Ct. H.R. (ser. A) para. 60 (1981); Norris v. Ireland, 142 Eur. Ct. H.R. (ser. A) para. 38
(1988); Modinos v. Cyprus, 259 Eur. Ct. H.R. (ser. A) paras. 23-26 (1993). 85 Dudgeon,
45 Eur. Ct. H.R. para. 60. 86 Id. 2005] HeinOnline -- 68 Alb. L. Rev. 923 2004-2005
Albany Law Review enforced its law.87 In similar cases brought by David Norris against
the Republic of Ireland and by Alecos Modinos against Cyprus, the European Court of
Human Rights reached the same conclusion. In Norris v. Ireland, the European Court of
Human Rights went on to reject the notion that a government such as Ireland could
claim that "the moral fibre of a democratic nation is a matter for its own institutions....
88 In Modinos v. Cyprus, the European Court of Human Rights held that the fact that a
law such as that of Cyprus had not been enforced was irrelevant to the country's
obligation to repeal the law.8 9

The CP solve AND reinvigorates CIL, CJR is key.

De la Vega 15 Connie de la Vega, Marshall P. Madison Professor of Law and Academic
Director of International Programs, University of San Francisco, School of Law; 4-1-15;
Using International Human Rights Standards to Effect Criminal Justice Reform in the United
States; American Bar Association; https://www.americanbar.org
/groups/crsj/publications/human_rights_magazine_home/2015--vol--41-/vol--41--no--2---
human-rights-at-home/using-international-human-rights-standards-to-effect-criminal-ju/ -
BS
While Americans might wonder why we are concerned about what treaties and international law provide, there are a number of areas where

Criminal justice is
individuals’ rights are better protected under international standards than our own Constitution and statutes.

one of those area s where international standards and treaties that the U nited S tates is
party to provide more protection than our laws and have been and can continue to provide a
foundation for c riminal j ustice r eform in the U nited S tates. Indeed, in the past 10 years, international law has
provided the support for prohibiting excessive sentences for juvenile offenders, such as the death penalty and
mandatory juvenile life without parole (JLWOP). This article will discuss how international standards can and have been used by the courts to
support greater protection of human rights and how they can continue to be used to promote better protection of rights in the area of criminal
justice.

International human rights are applicable in three ways in state and federal courts. First, under Article VI of the United States Constitution, treaties ratified by the United States are the “supreme law of the land” and have the same effect as federal law.
Second, human rights provisions that are part of customary international law may apply in a manner similar to United States common law. Third, courts may refer to international law in determining the content of both federal and state laws, and in
particular their constitutions.
The United States is a party to three human rights treaties that include protection of rights in the criminal justice arena: the International Covenant on Civil and Political Rights (ICCPR) (ratified by the United States on June 8, 1992); the Convention against
Torture (CAT) (ratified by the United States on October 21, 1994); and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (ratified by the United States on October 21, 1994). A number of provisions of the ICCPR
implicate sentencing practices, including: Article 7, which prohibits cruel, inhuman, and degrading treatment or punishment; Article 10, which provides that people deprived of their liberty shall be treated with humanity, that accused persons should be
segregated from convicted persons, that accused juvenile persons shall be separated from adults and brought to adjudication as speedily as possible, and that the aim of the penal system is the reformation and social rehabilitation of those convicted;
Article 14, which provides many protections covered by the Eighth Amendment but includes the requirement that procedures for juvenile persons shall be such as will take account of their age and promote their rehabilitation; Article 15, which prohibits
ex post facto penalties and mandates the retroactive application of lighter penalties provided by law subsequent to the commission of the crime; and Article 24, which specifically provides that children shall not be discriminated against based on race and
other categories and shall be given protection as required by their status as minors.

The latter provision was interpreted by the Human Rights Committee, the body that oversees the implementation of the treaty, such that the death penalty could not be imposed for crimes committed by persons younger than 18. In a recent review of the
United States’ report, the Committee requested that the United States not sentence offenders under 18 to life imprisonment without parole. It also has recently held in a case against Australia that sentences for juvenile offenders that do not give a
possibility of review and prospective release notwithstanding the gravity of the crime violate Articles 7, 10(3), and 24. Blessington v. Australia, U.N. Doc. CCPR/C/112/D/1968/2010 (Hum. Rts. Comm. Nov. 3, 2014). The Committee against Torture, the
official oversight body for the CAT, in evaluating the United States’ compliance with that treaty, found that life imprisonment of children “could constitute cruel, inhuman or degrading treatment or punishment” in violation of the treaty. Comm. against
Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and Recommendations: United States of America, U.N. Doc. CAT/C/USA/CO/2, ¶ 34 (July 25, 2006). The Committee that oversees CERD has
noted that the racially discriminatory effects of JLWOP sentences in the United States are also a violation of Article 5 of CERD. Comm. on the Elimination of Racial Discrimination, Consideration of Reports Submitted by States Parties under Article 9 of the
Convention, Concluding Observations: United States of America, U.N. Doc. CERD/C/USA/CO/6, ¶ 21 (May 8, 2008).

Unfortunately, the United States made a number of reservations when it ratified these three treaties, including a declaration that the treaties

were not self-executing (NSE). While advocates have been reluctant

to enforce the treaty obligations directly in U.S. courts because of the NSE declaration, there
are grounds for doing so in criminal defense cases . First, there are questions whether the declaration is valid. See
Connie de la Vega, Civil Rights During the 1990s: New Treaty Law Could Help Immensely, 65 Cinn. L. Rev. 423, 456 (1997). Second, courts have
applied treaties in defensive postures without considering whether they are self-executing. See United States v. Alvarez-Machain, 504 U.S. 655,
699–70 (1992), rev’d on other grounds, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004); United States v. Rauscher, 119 U.S. 407, 430 (1886). Third,
the legislative history of the declarations indicates that the declarations were intended to prohibit private causes of action, not defenses in cases.
See de la Vega, supra, at 456–57 n.206.

In addition to raising the treaty provisions as defenses in criminal law cases, advocates
can raise the sentences such
as JLWOP as violations of c ustomary i nternational l aw and even jus cogens or peremptory norms of

international law, since the United States is the only country in the world to allow them (with the possible exception of Australia as
discussed above). SeeConnie de la Vega et al., Univ. of S.F. Sch. of Law Ctr. for Law & Global Justice, Cruel and Unusual: U.S. Sentencing Practices
in a Global Context 59–60 (2012). As a customary international norm, the prohibition is applicable in the United States as “part of our law, and
[it] must be ascertained and administered by the courts of justice of appropriate jurisdiction.” The Paquete Habana, 175 U.S. 677, 700 (1900).

Besides JLWOP, other long sentencing schemes for juveniles also may be violations of c ustomary
i nternational l aw. Similarly, c ustomary i nternational l aw has been raised before the Connecticut Supreme Court in
cases addressing the issue of whether abolishing the death penalty by the legislature should be applicable retroactively to
people with pending death sentences. The argument is based on Article 15 of the ICCPR as well as the practice of nations—no country that has
abolished the death penalty has ever executed anyone with a prior sentence.

The greatest success thus far has been raising international human rights law as a guide to the courts in interpreting the U.S. Constitution. In Trop v. Dulles, 356 U.S. 86, 100 (1958), the U.S. Supreme Court expounded on the need for dignity and civility in
interpreting the Eighth Amendment. Because the Eighth Amendment’s words are not precise and the scope is not static, the Court established the propriety and affirmed the necessity of referring to “the evolving standards of decency that mark the
progress of a maturing society” to determine which punishments are so disproportionate as to be cruel and unusual. Id. at 100–01. For example, it noted that the “civilized nations of the world are in virtual unanimity that statelessness is not to be
imposed as punishment for crime.” Id. at 102–03.

In Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977), the Court considered “the climate of international opinion concerning the acceptability of a particular punishment.” In support of its conclusion that a death sentence for rape was cruel and unusual, the
Court stated it is “not irrelevant that out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue.”Id.

In Enmund v. Florida, 458 U.S. 782, 796 n.22 (1982), the Court acknowledged Coker, noting that the “climate of international opinion concerning the acceptability of a particular punishment” is an additional consideration which is “not irrelevant” under
the Eighth Amendment. In finding the death penalty is cruel and unusual punishment for felony murder, the Court noted that felony murder “has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth
countries, and is unknown in continental Europe. It is also relevant that death sentences have not infrequently been commuted to terms of imprisonment on the grounds of the defendant’s lack of premeditation and limited participation in the homicidal
act.” Id. (citation omitted).

In Thompson v. Oklahoma, 487 U.S. 815, 830 (1988), the Court recognized the relevance of the views of “respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western
community” in its conclusion that the Eighth and Fourteenth Amendments prohibited execution of a defendant convicted of first-degree murder that he committed when he was 15 years old. The Court made an additional reference to international
practice and opinion in a footnote: “We have previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual.” Id. at 830 n.31.

In Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002), the Court looked to the overwhelming disapproval of the “world community” to sentencing mentally retarded offenders to death. “Although these factors are by no means dispositive, their consistency
with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue.” Id.

In Roper v. Simmons, 543 U.S. 551, 575–78 (2005), the Supreme Court abolished the juvenile death penalty. The Court relied on the “evolving standards of decency” reasoning applied in Trop and Thompson, and looked to international law, practice, and
opinion to categorically prohibit juveniles from receiving the death penalty. In the inquiry whether the death penalty for juvenile offenders is cruel and unusual, the Court gave due deference to international treatment of juvenile offenders. “It is proper
that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime.” Id. at
578.

In Graham v. Florida, 560 U.S. 48, 81 (2010), the Court, citing Roper, reaffirmed the relevance of international practice and opinion in holding unconstitutional life without parole sentences for juveniles for non-homicide crimes. Justice Stevens’s
concurrence in Graham acknowledges that “evolving standards of decency” have played a central role in Eighth Amendment jurisprudence for decades and will continue to do so. Id. at 85 (Stevens, J., concurring).

The international law standards have been raised in the juvenile sentencing cases primarily by amici curiae, and the Court has not referred to international standards in more recent juvenile sentencing cases. In Miller v. Alabama, 132 S. Ct. 2455 (2012),
the Court held that mandatory sentences for juvenile offenders violate the Eighth Amendment but did not cite to international standards as it had in Roper and Graham. The international standards were raised by amici curiae and not the parties.

State courts have also found international standards helpful in deciding criminal cases as well as those involving other fundamental rights. In Connecticut v. Santiago, 49 A.3d 566 (Conn. 2015), the Connecticut Supreme Court held that the abolition of the
death penalty by the legislature applied retroactively to the 11 persons already on death row. Justice Eveleigh, concurring, referred to other nations’ practices regarding retroactive application of ameliorative laws. The California Supreme Court used
worldwide “standards of decency” to reject a penalty as impermissibly “unusual” under the California Constitution. People v. Anderson, 493 P.2d 880, 897–99 (Cal. 1972). It compared another penalty “with the punishments prescribed for the same
offense in other jurisdictions having an identical or similar constitutional provision” in concluding the penalty at issue “shocks the conscience and offends fundamental notions of human dignity.” Inre Lynch, 503 P.2d 921, 930, 932 (Cal. 1972).

The California Supreme Court also referred to international standards when interpreting other California state constitutional provisions. See, e.g., In re Marriage Cases, 183 P.3d 384, 426 n.41 (Cal. 2008) (recognizing that “the California and federal
Constitutions are not alone in recognizing that the right to marry is not properly viewed as simply a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basic civil or human right of all people”;
citing Universal Declaration of Human Rights, art. 16; ICCPR, art. 23), superseded by constitutional amendment as stated in Perry v. Brown, 671 F.3d 1052, 1065 (9th Cir. 2012), cert. granted, 133 S. Ct. 786 (2012), vacated and remanded sub nom.,
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); City of Santa Barbara v. Adamson, 610 P.2d 436, 439 n.2 (Cal. 1980) (citing international law in interpreting right to privacy under the state constitution).

Other state supreme courts have also considered international standards when interpreting their state constitutions. In Servin v. State, 32 P.3d 1277, 1291–92 (Nev. 2001) (Rose, J., concurring), the Supreme Court of Nevada’s Justice Rose found in a
concurring opinion that customary international law supersedes contrary state law. In Moore v. Ganim, 660 A.2d 742, 780–81 (Conn. 1995) (Peters, C.J., concurring), the Supreme Court of Connecticut’s Chief Justice Peters discussed the “wide
international agreement on at least the hortatory goals identified in” the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR) as support for finding a Connecticut state constitutional
right to minimal subsistence notwithstanding that the United States was not a party to the ICESCR and that federal law had not identified that constitutional right. In Sterling v. Cupp, 625 P.2d 123, 131 (Or. 1981) (en banc), the Supreme Court of Oregon
referred to international instruments in construing the guarantee against “unnecessary rigor” in the state constitution. In Pauley v. Kelley, 255 S.E.2d 859, 863–64 n.5 (W. Va. 1979), the Supreme Court of Appeals of West Virginia cited the Universal
Declaration of Human Rights in holding education to be a fundamental right under the state constitution. See generally Anna Maria Gabrielidis, Human Rights Begin at Home: A Policy Analysis of Litigating International Human Rights in U.S. State Courts,
12 Buff. Hum. Rts. L. Rev. 139, 169 (2006); Hon. Margaret H. Marshall, “Wise Parents Do Not Hesitate to Learn from their Children”: Interpreting State Constitutions in an Age of Global Jurisprudence, 79 N.Y.U. L. Rev. 1633 (2004).

Perhaps one of the more helpful sources for addressing the disproportionate use of extreme sentences on minorities in the United States is CERD. In addition to prohibiting discrimination “based on race, colour, descent, or national or ethnic origin,”
Article 1 also requires that state parties take special measures to ensure equal enjoyment or exercise of human rights and fundamental freedoms for certain racial or ethnic groups or individuals. Such special measures are not deemed racial
discrimination. Article 5(a) specifically provides for the “right to equal treatment before the tribunals and all other organs administering justice.” Because the goal of the treaty is to attain equality, it is not necessary to find intent behind discriminatory
practices used in the criminal justice system. Article 6 provides for effective remedies for violation of the treaty, and Article 7 provides for immediate and effective measures for teaching and information to combat prejudices that lead to racial
discrimination.

In addition to using the international standards in courts , advocates can use them to
promote legislation that will help to ameliorate problems and violations in the
criminal justice system, such as excessively long sentences that result from life
without parole sentences, recidivist statutes , consecutive sentences , and mandatory
minimum sentences. See de la Vega et al., Cruel and Unusual, supra. In addition to violating basic principles of international law, the use
of these sentences is way out of proportion with their use in the rest of the world. Publicizing these discrepancies could be useful to mobilize
change at the legislative level, where there is already pressure to reduce the extremely high incarceration rates in a number of states. The

international standards and practices help to focus attention on the need to have a
fair and humane criminal justice system that has the goal of rehabilitation so that criminal offenders can become
productive members of society. They are also helpful for ending the racial discrepancy that continues in the use of extreme sentences in the
United States.

CIL incorporation uniquely revitalizes global governance---solves

extinction
Noah Feldman 8, Professor of Law and Senior Fellow of the Society of Fellows, Harvard
Law School, former senior constitutional advisor to the Coalition Provisional Authority in
Iraq, and advised the Iraqi Governing Council on drafting the interim constitution, former
law clerk to Justice David H. Souter of the U.S. Supreme Court, J.D. Yale Law School, former
Rhodes Scholar, D.Phil. Oriental Studies, Oxford University, A.B. Near Eastern Languages
and Civilizations, Harvard University, “When Judges Make Foreign Policy,” New York Times
Magazine, 9-25-2008, http://www.nytimes.com/2008/09/28/magazine/28law-t.html?
pagewanted=all&_r=0
Every generation gets the Constitution that it deserves. As the central preoccupations of an era make their way into the legal system, the Supreme Court eventually weighs in, and nine lawyers in robes
become oracles of our national identity. The 1930s had the Great Depression and the Supreme Court’s “switch in time” from mandating a laissez-faire economy to allowing New Deal regulation. The
1950s had the rise of the civil rights movement and Brown v. Board of Education. The 1970s had the struggle for personal autonomy and Roe v. Wade. Over the last two centuries, the court’s decisions,
ranging from the dreadful to the inspiring, have always reflected and shaped who “we the people” think we are. During the boom years of the 1990s, globalization emerged as the most significant
development in our national life. With Nafta and the Internet and big-box stores selling cheap goods from China, the line between national and international began to blur. In the seven years since 9/11,

As the
the question of how we relate to the world beyond our borders — and how we should — has become inescapable. The Supreme Court, as ever, is beginning to offer its own answers.

United States tries to balance the benefits of multilateral alliances with the demands of unilateral
self-protection, the court has started to address the legal counterparts of such existential
matters. It is becoming increasingly clear that the defining constitutional problem for the present
generation will be the nature of the relationship of the U nited States to what is somewhat optimistically called the

international order. This problem has many dimensions. It includes mundane practical questions, like what force the United States should give to the law of the sea. It includes
more symbolic questions, like whether high-ranking American officials can be held accountable for crimes against international law. And it includes questions of momentous consequence, like

whether i nternational law should be treated as law in the United States; what rights, if any, noncitizens have to come
before American courts or tribunals; whether the protections of the Geneva Conventions apply to people that the U.S. government accuses of being terrorists; and whether the

U.S. Supreme Court should consider the decisions of foreign or international tribunals when
it interprets the Constitution. In recent years, two prominent schools of thought have emerged to answer these questions. One view, closely associated with the Bush
administration, begins with the observation that law, in the age of modern liberal democracy, derives its legitimacy from being enacted by elected representatives of the people. From this standpoint, the
Constitution is seen as facing inward, toward the Americans who made it, toward their rights and their security. For the most part, that is, the rights the Constitution provides are for citizens and provided
only within the borders of the country. By these lights, any interpretation of the Constitution that restricts the nation’s security or sovereignty — for example, by extending constitutional rights to
noncitizens encountered on battlefields overseas — is misguided and even dangerous. In the words of the conservative legal scholars Eric Posner and Jack Goldsmith (who is himself a former member of
the Bush administration), the Constitution “was designed to create a more perfect domestic order, and its foreign relations mechanisms were crafted to enhance U.S. welfare.” A competing view,
championed mostly by liberals, defines the rule of law differently: law is conceived not as a quintessentially national phenomenon but rather as a global ideal. The liberal position readily concedes that

a fuller, more complete conception of law demands that

the Constitution specifies the law for the United States but stresses that

American law be pictured alongside international law and other (legitimate) national constitutions. The U.S. Constitution, on this
cosmopolitan view, faces outward. It is a paradigm of the rule of law: rights similar to those it confers on Americans should protect all people everywhere, so that no one falls outside the reach of some

legitimate legal order. What is most important about our Constitution, liberals stress, is not that it provides rights for us but that its vision of freedom ought to apply universally. The
Supreme Court, whose new term begins Oct. 6, has become a battleground for these two worldviews. In the last term, which
ended in June, the justices gave expression to both visions. In two cases in particular — one high-profile, the other largely overlooked — the justices divided into roughly two blocs, representing the
“inward” and “outward” looking conceptions of the Constitution, with Justice Anthony Kennedy voting with liberals in one case and conservatives in the other. The Supreme Court is on the verge of
several retirements; how the justices will address critical issues of American foreign policy in the future hangs very much in the balance. This may seem like an odd way of thinking about international
affairs. In the coming presidential election, every voter understands that there is a choice to be made between the foreign-policy visions of John McCain and Barack Obama. What is less obvious, but no

Supreme Court appointments have become a de facto part of American foreign policy.
less important, is that

The court, like the State Department and the Pentagon, now makes decisions in cases that
directly change and shape our relationship with the world. And as the justices decide these cases, they are doing as much as anyone
to shape America’s fortunes in an age of global terror and economic turmoil. What Conservatives Understand About International Law The debate between inward-looking conservatives and outward-
looking liberals has recently taken a turn toward the shrill. Liberal lawyers do not simply accuse their conservative counterparts of denigrating the rule of law; they accuse them of violating it themselves.
Calling last spring for the firing of the tenured Berkeley professor John Yoo, an architect of the Bush administration’s legal strategy in the war on terror, Marjorie Cohn, the president of the National
Lawyers’ Guild, declared that “Yoo’s complicity in establishing the policy that led to the torture of prisoners constitutes a war crime under the U.S. War Crimes Act.” The conservatives’ arguments are no
less heated: not only, they contend, do liberals paint a naïvely romantic picture of the world — one in which the United Nations and its agencies and courts would make law for Americans — but liberals
are also endangering American lives. Dissenting this past June from the Supreme Court decision giving those held at Guantánamo Bay a right to challenge their detention, Justice Antonin Scalia wrote that
the majority’s ruling “will almost certainly cause more Americans to be killed.” These sorts of accusations are overstated and unhelpful. Neither the liberal nor the conservative view corresponds to the
stereotype assigned to it by its opponents. Notwithstanding their limitations, both views express values that are deeply grounded in the American constitutional tradition and in the rule of law. Each is
necessary to help us make sense of the Constitution’s role in an increasingly complex global world. Consider first the conservative vision, which is sometimes called “sovereigntist” because it emphasizes
the power and prerogative of the United States to act as if it is responsible to no one but itself. The Bush administration, through its characteristic combination of boldness, historical ambition and
operational incompetence, has given sovereignty a bad name, much as it has for unilateralism. But the constitutional principle here is actually one that most liberals also fully embrace: namely, the
principle of democracy. International law, as even its staunchest defenders must acknowledge, often fails to accord with democratic principle. Such law is not passed by a democratically elected Congress
and signed by a democratically elected president. It is true that the U.S. Constitution says that international treaties signed by the president and approved by the Senate shall be the supreme law of the
land, thereby conferring some democratic legitimacy on treaties. But a great deal of international law derives not from treaties signed by consenting nations but rather from the vague category of
international custom, which over time can harden into binding law. For hundreds of years, until more formal treaties were adopted, custom was the main way international law was created, giving rise to
the laws of war, for instance, and condemning terrorism and torture. Even today, the existence of a treaty among only a select group of nations can be invoked in international forums as evidence of an
established custom — and nonparticipating countries can come to be bound by treaties that they themselves never signed. To conservatives, such international “law” is anathema. Even in cases in which
explicit treaties among nations do exist, conservatives worry. Such treaties, after all, are increasingly interpreted by nondemocratic institutions like tribunals of the World Trade Organization or the
United Nations’ International Court of Justice. Two hundred years ago, treaties tended to be simple agreements between two parties, with each reserving the right to interpret (and, if necessary, enforce)
the treaty’s terms for itself. Today, though, many of the most important treaties — those governing trade, the environment and other crucial matters — involve a large number of nations that agree as a
condition of the treaty to be bound by the decisions of an international body. To sign on to such a treaty, conservatives point out, confers future lawmaking authority on some unelected and thus
undemocratic body. According to the sovereigntists, the United States, faced with such undemocratic regimes, should feel free to reject any undesirable verdict of a body like the International Court of
Justice and embrace a policy more in line with U.S. interests — much in the way that Israel responded to the I.C.J.’s condemnation of the path of its security barrier on the West Bank. In a world where
Libya can lead an international human rights commission, no international institution is free from the distortions that arise when all countries are treated as equals. Even within the distinguished higher
echelons of the United Nations or European Union, there is a risk that bureaucrats may pursue policies that reflect the values and priorities of their own technocratic classes. The worst-case scenario,
from the perspective of the conservatives, is one in which enemies of the United States engage in “lawfare,” opportunistically charging the country with violations of international law to impede it from
rightfully ensuring its safety. Another key sovereigntist principle is the right of the United States, when acting abroad, to protect itself, whether fighting wars or preventing terrorist attacks. Historically,
the court has given the president, as commander in chief, great latitude to act abroad as he sees fit. In situations in which Congress has explicitly authorized the president’s action, the court has
recognized the prerogative as almost absolute. For instance, when the United States acquired Puerto Rico, Guam and the Philippines in the Spanish-American War, the Supreme Court allowed Congress
and the president to govern those territories without extending constitutional rights to the residents. Similarly, after World War II, when Germans held by the United States in occupied Germany pending
war-crimes charges petitioned for judicial review, the Supreme Court turned them away. Conservatives argue, not implausibly, that these historic decisions did not undermine the rule of law: they
embodied it. The Supreme Court’s judgments derived, after all, from the Constitution itself and its own democratic pedigree. One central reason that the people of the United States formed the
Constitution was in order to provide for the common defense. The Constitution does protect rights, according to this view — but they are the rights of citizens, not the rights of mankind in general or of
foreigners who have never even set foot in the United States. What Liberals Understand About International Law From the liberal perspective, the vision espoused by the conservatives is crabbed and
parochial. Of course the Constitution demands democracy and gives rights to American citizens. But, say the progressives, that does not explain why over the last two centuries the Constitution has
become the very model of what a system of government under law looks like. The key to the Constitution’s global appeal, according to the liberal view, is that the document stands for the universal
principle that state power over individuals may only ever be exercised through law — no matter what government is acting, and no matter where on earth. This outward-looking, “internationalist”
conception of the Constitution respects the sovereignty of the United States and that of other countries — provided they deliver a just legal order to their citizens. But liberals point out that even a
constitutional state that guarantees rights for its own citizens will not protect people in many places and times, often when rights are most sorely needed. In wartime, for instance, almost no nation will

have an interest in protecting the rights of foreign enemies that it encounters. On the open seas, no domestic law applies. And for reasons of sheer
practicality, no country’s laws regulate all its potential relations with all other states. To cover situations like these, where domestic law runs out of rope, is the task of international law. Such law seeks to
ensure rights for all, not by replacing the domestic law of independent nations but by holding it to standards of universal justice and by supplementing it where it is incomplete or inadequate. From this

perspective, international law is necessary to ensure that the rule of law will actually obtain in situations where individual states do not provide it. This is why, for liberals, it is essential
that the United States comply with its international obligations. The framers of the Constitution were certainly eager to demonstrate such
compliance. When they made treaties the law of the land, they were saying — according to an interpretation of Chief Justice John Marshall’s that dates back to 1829 — that the moment the Senate ratifies

from the
a treaty, it automatically becomes the supreme law of the land, binding in every court in the nation. Deepening their historical argument, the liberals also point out that

earliest days of the United States, the nation’s courts applied c ustomary i nternational l aw,
regularly deciding who owned ships captured on the high seas according to immemorial
practice that was not found in any treaty. What is more, the framers’ reliance on international law
and custom went to the very heart of their constitutional endeavor : what, otherwise, did the framers mean when they
spoke in the Constitution about the declaration of war, or about letters of marque and reprisal, or about judicial authority over ambassadors? In practice, the internationalist camp argues for the prudent

not only for purposes of rhetoric and persuasion but also

use of international legal materials in constitutional decision-making —

to provide rules and principles to help actually decide cases . For example, liberals argue that if the United States
adopts laws designed to comply with the Geneva Conventions, the government is obligated to follow the
treaty to the letter should the government invoke the authority to detain prisoners that the treaty confers. Likewise, when the United States has undertaken to comply with the
decisions of international tribunals, those tribunals’ rulings must be treated as law, just as the treaties themselves are. Liberals concede that the framers showed respect for international law, in part,
because their country was new and revolutionary, and they sought legitimacy in the community of nations. But the liberal view stresses that the tradition of respect continued even once the nation was
well established, and that it was kept alive by successive generations for different but always compelling reasons. The United States helped found the United Nations after World War II, for instance, at
what was then the nation’s moment of greatest global power. Franklin Delano Roosevelt’s idea, shared by liberals then and now, was that the international rule of law was good not just in principle but
also in practice. As a country governed by law, we were asserting the superiority of our system to others governed by dictatorship. Moreover, since the United States was a permanent member of the
Security Council, any compromises to our national sovereignty were more than outweighed by the tremendous benefits of having a legitimate international legal order through which, as a superpower, it

being a leading exponent of the rule of law internationally

could assert its will. As liberals see it,

strengthens America’s ability to pressure or bully other countries

 to respect the rights of their own citizens. In this way, oddly enough, the liberal view is consonant with certain aspirations of the Bush administration. In Afghanistan, Iraq and beyond, President Bush has
tried to export liberal constitutionalism, including both elections and basic rights. His “freedom agenda” is, in fact, a direct descendant of liberal internationalism, a policy associated with Woodrow
Wilson and his plans to make the world safe for democracy through the work of international institutions. The Bush administration, of course, distrusts international organizations that continue in the
tradition of the League of Nations, which Wilson helped to found (though he could not persuade his own country to join it). But Bush’s notion that America’s democratic Constitution should be an
inspiration for the world is identifiably Wilsonian — as is the zeal to spread the good word, voluntarily when possible but by force if necessary. If the greatest tragedy of the Bush presidency is the
enormous human cost of America’s ham-handed efforts to accomplish this worthy goal, a second, related tragedy is that the spreading of constitutional democracy is rarely talked about anymore as a
liberal goal at all. The Court’s Liberal Victory Each constitutional worldview — the one conservative and inward-looking, the other liberal and outward-focused — has found exponents on the current
Supreme Court. This past spring, in two cases before the court, each side won an important victory. The larger battle, however, was widely overlooked. The liberal victory was widely publicized, but its
full implications were not often noted. As for the conservative win, its very existence went almost entirely unnoticed. The liberal victory, in the case of Boumediene v. Bush, took place against the
backdrop of the detentions of suspected terrorists at Guantánamo Bay, Cuba. The detainees were being held there because the Bush administration’s lawyers were confident that, under the Supreme
Court’s precedent, the detainees would not enjoy constitutional rights. Like the Germans denied review after World War II, the detainees were noncitizens who were neither arrested nor held in the
United States. Guantánamo was leased from Cuba under a 1903 treaty, so it was not in the United States, and yet there was no tradition of applying Cuban law there. In light of these circumstances, the
Bush administration seemed to believe it could treat Guantánamo as a law-free zone. Unlike Iraq, which the administration conceded was a war zone in which the Geneva Conventions applied,
Guantánamo was initially considered legally off the grid. It is often said by liberal critics that Bush’s anti-terror policies ignored the Constitution and international law. But this is a misleading
oversimplification. What the choice of Guantánamo demonstrates, rather, is the profoundly legalistic way in which those policies were designed. Using the law itself, the lawyers in the Bush
administration set out to make Guantánamo into a legal vacuum. The court’s decision in Boumediene repudiated that attempt. The majority, led by Justice Kennedy, announced that for constitutional
purposes, Guantá namo Bay was part of the United States: the detainees there enjoyed the same rights as if they had been held in Washington. The Boumediene decision was chiefly the accomplishment of
Justice John Paul Stevens, who has made overturning the Bush detention policies into the legacy-defining task of his distinguished career. In key opinions issued in 2004 and 2006, Stevens chipped away
at the special status asserted for Guantánamo, each time referring the matter of judicial review for the detainees back to Congress. But Congress repeatedly approved the administration’s proposals to
deny access to the courts. To win the fight even against Congress, Stevens needed Kennedy to provide the fifth vote and hold that denying the Guantánamo detainees their day in court actually violated
the Constitution. The opinion that Kennedy wrote for the court’s majority in Boumediene announced squarely that the Constitution applied to the detainees being held in Guantánamo. Kennedy insisted
that he was not overruling the precedent of the German detainees who were denied review. Unlike the situation with the Germans after World War II, he argued, the Guantá namo detainees had not
received a hearing; the Guantánamo naval base was entirely under U.S. control; and granting hearings was not so impractical that it would fundamentally disrupt the operation of the prison. In effect,
however, Kennedy’s opinion rejected what the Bush administration claimed to be the rule that noncitizens held outside the United States were not entitled to constitutional protection. Having refused to
overturn Roe v. Wade in the 1990s and having championed gay rights in recent years, Kennedy may now be depicted as an unlikely liberal hero — the latest in a line of Republican appointees (one of
whom is John Paul Stevens) who gradually evolved into staunch exponents of liberal rights. The key to Kennedy’s reasoning in the Guantá namo case was his expansive conception of the rule of law. In the
central paragraph of the decision, Kennedy explained his underlying logic: if Congress and the president had the power to take control of a territory and then determine that U.S. law does not apply there,
“it would be possible for the political branches to govern without legal constraint,” he wrote. Government without courts, Kennedy suggested, was not constitutional government at all. “Our basic
charter,” he went on, “cannot be contracted away like this.” What seemed to most offend Kennedy about Guantánamo, then, was precisely the effort by the executive branch, with the approval of
Congress, to make Guantánamo into a place beyond the reach of any law. By insisting on its own authority, the court was striking a blow for law itself. In this way, the court embraced the ideal of the
outward-looking Constitution: a document that protects the rights not only of citizens within the United States but also of noncitizens outside its formal borders. This Constitution, by extension, stands for
the ideal of legal justice being made available to all persons — no matter where they might be. Holding that the Constitution did indeed follow the flag to Guantánamo was an act with tremendous
international resonance. It can even be read as an attempt to hold the Bush administration to its own rhetoric about democracy. The rule of law, after all, is not solely an American ideal but one that is
broadly shared globally. To insist that some law covers all people wherever they may be found underscores the universality that law aims to create. The Court’s Conservative Victory From the
conservative point of view, of course, Kennedy’s decision did not follow from the basic principle of the rule of law. According to the four conservative dissenting justices, whose views closely tracked
those of the Bush administration, the Constitution unquestionably binds the government. But according to their view, the Constitution also allows the president and Congress, acting together, to lease or
even acquire territory and govern it without allowing recourse to the courts. Indeed, this view was precisely the one adopted by the Supreme Court after the Spanish-American War, when the United
States was a rising imperial power. The dissenters in Boumediene actually agree with the liberals that law does apply to Guantánamo; they just maintain that the courts are not part of it. The
conservative cause may have lost in Boumediene. It prevailed, however, in a case decided last March that garnered little public attention— but that was, in its own way, just as important to defining our
constitutional era. The case, Medellín v. Texas, grew from a conflict between the Supreme Court and the International Court of Justice over death-row inmates in the United States who were apparently
never told they had the right to speak to the embassies of their home countries, a right guaranteed by a treaty called the Vienna Convention on Consular Relations. The international court declared that
the violation tainted the inmates’ convictions and insisted that they have their day in court to try to get them overturned. The Supreme Court disagreed. In his initial trial and appeal, José Medellín, the
man who brought the Supreme Court case, did not raise his right to speak to his embassy — presumably because, having never been informed of the right, he had no idea that it existed. Under the arcane
rules for postconviction judicial review, a defendant ordinarily cannot ask the courts to consider legal arguments that were not raised when he was tried in the first place. And in its decision, the court
upheld those rules: the violation of the treaty, it held, did not demand any special exception to the usual rules governing review. The fact that the United States had violated its international-treaty
obligation was of no use on death row. Medellín was executed by the State of Texas on Aug. 5. What made this conflict between the Supreme Court and the International Court of Justice particularly stark
was that the Bush administration had for once taken the side of international law. Before the Supreme Court issued its opinion, President Bush issued a memorandum advising state courts to follow the
judgment of the International Court of Justice. With the ruling of the Supreme Court on one side, and that of the international court — endorsed by the president — on the other, just what did the
Constitution require the state courts to do? The United States signed three separate treaties stating that it undertook to obey the judgments of the International Court of Justice. But the Supreme Court
bridled at the thought that the international court’s decision might trump its own. This was not just instinctive turf-protection, though that concern no doubt played a part. Never before had an
international body replaced the Supreme Court in telling lower courts in the United States that their own procedural rules were unacceptable. The natural order of things seemed to be turned on its head.
The Supreme Court held that the treaties obligating us to listen to the International Court of Justice were not binding law. Chief Justice John Roberts wrote that a careful reading of the text of the treaties
revealed no intention to subject the United States to the judgments of the international court — not, that is, unless Congress passed a separate statute demanding such obedience. This opinion upended
the rules for applying treaties in the U.S. courts. In dissent, Justice Breyer painted a grim picture of the consequences. If treaties were not automatically binding law unless they said so, he wrote, the
applicability of some 70 treaties involving economic cooperation, consular relations and navigation was now thrown into doubt. The rest of the world, he intimated, would be left wondering whether the
United States intended to obey its treaty obligations or not — which is not a trivial concern when the world also suspects the United States of ignoring its obligations of humane treatment under the
Geneva Conventions. To Breyer, the decision was a reversal of nearly 180 years of precedent and a message to the world that the United States was prepared to play fast and loose with its international
commitments. When the justices rejected the death-row appeal, they were acting on the basis of familiar conservative concerns. The judges of the International Court of Justice were not appointed
according to any constitutional procedure. To let the international body decide matters of law that would be binding for state courts seemed fundamentally undemocratic — an unjust usurpation of the
judicial function. It would be absurd for the Constitution, as the core document of our democracy, to require such a result. The old precedent regarding treaties was thus, according to the conservatives,
truly obsolete. It made no sense to apply it in a globalized world where treaties are not just straightforward agreements between sovereign states; now, they often create irresponsible international
tribunals to adjudicate their meaning. If the judgments of an international court were to be obligatory, a democratically legitimate body should say so explicitly — either the Senate that approved the
treaty promising compliance or the whole Congress in a separate legal enactment. By its own lights, the Supreme Court in the Medellín case was reading the Constitution to guarantee us control over our
own destiny. That meant turning away from international law in a systematic and profound sense. The cost to the United States might be real, but the court considered it justified by the preservation of
our democratic sovereignty. Which Side Is Right? The Boumediene decision saw the Constitution as facing outward, expanding and promoting the rule of law throughout the world. The Medell ín
decision, by contrast, saw the Constitution as a domestic blueprint designed to preserve and protect the United States from foreign encroachment, even at some cost to the international rule of law.
Underscoring the tension between the two cases is the fact that nearly all the justices of the Supreme Court voted consistently across both of them. The four conservatives — Justices Antonin Scalia,
Clarence Thomas, John Roberts and Samuel Alito — dissented from the extension of habeas corpus rights to Guantánamo Bay in Boumediene and joined the majority opinion in Medellín that made it
harder for treaties to become law. Meanwhile the court’s liberals — Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — joined the majority in the Guantá namo case, and
all but Stevens dissented in Medellín. (Though Stevens voted with the majority in that case, he did so seemingly only for tactical reasons; he wrote a separate, concurring opinion that did not embrace the
logic of Roberts’s majority opinion.) The key vote in both cases was that of Kennedy. In both cases, he acted to uphold the prerogatives of the Supreme Court — against the president and Congress in the

Guantánamo case, and against the international court in the Medellín decision. And Kennedy does argue that such judicial supremacy is crucial to the
rule of law. But the other justices did not see the cases in those terms. To them, the cases were not primarily about the perennial issue of the division of powers between the different
branches of government. To these eight justices, the cases were about what sort of Constitution we have: either outward-facing or inward-looking. Who is right? It is tempting to

conclude that the Constitution must look inward and outward simultaneously . But
embracing contradiction is not the answer , either. Instead what we need to resolve the present difficulty is a subtle shift in perspective. There
is an important way in which neither of the predominant approaches to the Constitution and the international order can provide a fully satisfactory answer to the problem. Although they differ deeply
about what the Constitution teaches, the two sides share a common image of what the Constitution is. Both imagine it to be a blueprint offering a coherent worldview that will allow us to reach the best
results most of the time. According to this shared assumption, the way to find the real or the true Constitution is to identify the core values that the document and the precedents stand for, and to use
these as principles to interpret the Constitution correctly. There is nothing wrong with this picture of constitutional interpretation when it is applied to the vast majority of constitutional decisions, from
the right to bear arms to the meaning of equal protection of the laws. Deciding what deep principles emerge from our history can help resolve even problems unimagined by the framers, like those
presented by abortion or claims to gay rights. Most of the time, constitutional interpretation proceeds in precisely this way — and so it should. But when we are talking about the basic direction the

in order to achieve its goals in the modern world, deriving principles from history
country needs to face

is often inadequate to dictate outcomes. The national and global situations in which we find
ourselves are ever-changing. The ship of state must navigate in waters that correspond to no existing chart. The complexity of the world, coupled with the profound
changes in the role the United States plays in it, is a very different thing from, say, our progressive recognition that African-Americans, women, gays and lesbians deserve the same equality and respect as
everybody else. For this reason, when the world has changed drastically, the Constitution has always had the flexibility to change along with it. The industrial economy, for example, was so much bigger
and more complex than the economy of 1787 that the old constitutional order no longer worked. The New Deal ushered in systematic regulation and administrative agencies that had no real place in the
three-branch system — but that we now accept as constitutional today. The original federal system limiting the power of the central government relative to the states also had to be reconfigured when

the economy became truly national. The changed nature of the president’s war powers offers yet another pragmatic example of flexibility and change. Modern wars demand
rapid decision-making and overwhelming concentrations of force; in the light of these
needs, we have largely abandoned the framers’ model for war powers, which gave Congress
much more authority than it is able to exercise today. On each occasion that the Supreme
Court has had to confront such drastically changed circumstances, it has adopted the
approach of seeing constitutional government as an ongoing experiment . Justice Oliver Wendell Holmes Jr. wrote
that our system of government is an experiment, “as all life is an experiment.” Justice Robert Jackson, confronting the separation of powers — about which the Constitution is cryptic at best — admitted
frankly that nothing in the document, the case law or the scholars’ writings got him any closer to an answer. Then he tried to come up with his own rules, designed to reflect political reality and the

changed nature of the presidency. Looking at today’s problem through the lens of our great constitutional experiment, it emerges that there is no single, enduring
answer to which way the Constitution should be oriented, inward or outward . The truth is
that we have had an inward- and outward-looking Constitution by turns, depending on the
needs of the country and of the world. Neither the text of the Constitution, nor the history of its interpretation, nor the deep values embedded in it justify one
answer rather than the other. In the face of such ambiguity, the right question is not simply in what direction does our

Constitution look, but where do we need the Constitution to look right now? Answering this
requires the Supreme Court to think in terms not only of principle but also of policy :
to weigh national and international interests; and to exercise fine judgment about how our
Constitution functions and is perceived at home and abroad . The conservative and liberal approaches to
legitimacy and the rule of law need to be supplemented with a healthy dose of real-world
pragmatism. In effect, the fact that the Constitution affects our relations with the world requires
the justices to have a foreign policy of their own . On the surface, it seems as if such
inevitably political judgments are not the proper province of the court . If assessments of the state of the world are
called for, shouldn’t the court defer to the decisions of the elected president and Congress? Aren’t judgments about the direction of our country the exclusive preserve of

the political branches? Indeed, the Supreme Court does need to be limited to its proper role. But
when it comes to our engagement with the world, that role involves taking a stand, not
stepping aside . The reason for this is straightforward: the court is in charge of interpreting the Constitution, and
the Constitution plays a major role in shaping our engagement with the rest of the world.
The court therefore has no choice about whether to involve itself in the question of which
direction the Constitution will face; it is now unavoidably involved . Even choosing to
defer to the other branches of government amounts to a substantive stand on the question.
That said, when the court exercises its own independent political judgment, it still does so
in a distinctively legal way. For one thing, the court can act only through deciding the cases that
happen to come before it, and the court is limited to using the facts and circumstances of those cases to shape a broader constitutional vision. The court
also speaks in the idiom of law — which is to say, of regular rules that apply to everyone
across the board. It cannot declare, for instance, that only this or that detainee has rights. It must hold that the same rights extend to every detainee who is similarly situated.
This, too, is an effective constraint on the way the court exercises its policy judgment. Indeed, it is this
very regularity that gives its decisions legitimacy as the product of judicial logic and reasoning. Why We Need More Law, More Than Ever So what do we need the Constitution to do for us now? The

the Constitution must be read to help us remember that while the war on terror continues, we are also
answer, I think, is that

in the midst of a period of rapid globalization. An enduring lesson of the Bush years is the extreme difficulty and cost of doing things by
still

ourselves. We need to build and rebuild alliances — and law has historically been one of our best

tool s for doing so. In our present precarious situation, it would be a terrible mistake to
abandon our historic position of leadership in the global spread of the rule of law . Our
leadership matters for reasons both universal and national. Seen from the perspective of the world, the fragmentation of power after the cold war

creates new dangers of disorder that need to be mitigated by the sense of regularity and
predictability that only the rule of law can provide . Terrorists need to be deterred. Failed states need to be
brought under the umbrella of international organizations so they can govern themselves. And economic interdependence demands

coordination, so that the collapse of one does not become the collapse of all. From a national perspective, our
interest is less in the inherent value of advancing individual rights than in claiming that our allies are obligated to help us by virtue of legal commitments they have made. The Bush administration’s

lawyers often insisted that law was a tool of the weak, and that therefore as a strong nation we had no need to engage it. But this notion of “lawfare” as a threat to
the United States is based on a misunderstanding of the very essence of how law operates. Law comes into
being and is sustained not because the weak demand it but because it is a tool of the
powerful — as it has been for the United States since World War II at least. The reason those with power prefer law to brute force is that it regularizes and
legitimates the exercise of authority. It is easier and cheaper to get the compliance of weaker
people or states by promising them rules and a fair hearing than by threatening them
constantly with force. After all, if those wielding power really objected to the rule of law, they could abolish it, the way dictators and juntas have often done the world over. On
those occasions when the weak, using the machinery of courts, are able to vindicate their legal rights, the reason their demands are honored is generally that those who have the most influence in the
system recognize it is in their own long-term interest to make the concession. Those who consider law a tool of the weak mistake these rare trade-offs for defeat, when — from the perspective of power
— they are simply part of the cost of doing business. This is why, for example, the police and prosecutors embrace the Miranda warnings: they require that defendants be read their rights. But once the

Applying the lesson that the world and

formality is satisfied, it is almost guaranteed that the defendants’ statements will be admissible into evidence.

the United States need law more than ever at this particular moment yields some specific
conclusions. The executive branch certainly should be accorded considerable leeway in defending the nation from attacks by stateless groups like Al Qaeda. But it was an error of
constitutional dimensions to choose Guantánamo as a global symbol of those efforts precisely because of the way it seemed to be outside the reach of our domestic Constitution, the law of any other
country or international law itself. The Supreme Court therefore was right to reinsert Guantá namo in the legal grid — but not because this was definitively the best reading of the constitutional materials,

What justifies the decision is the practical necessity and importance of

which were contradictory and indeterminate.

reassuring the citizens of the United States and the world at large that the United States had not given
up the role it assumed after World War II as the chief proponent of the rule of law
worldwide. Not every Supreme Court decision has this monumental symbolic effect — but the
Boumediene case was guaranteed to be seen as either a victory or a defeat for the very idea of law itself. In an ideal world, the Supreme Court would not have had to send this message, and it could have

globalization
avoided the substantial expansion of its own power to which it was driven by the foolishness of the Bush administration. The Medellín case is trickier. On one hand,

inevitably inserts us into an ever-widening array of treaty regimes, each with its own
mechanism of adjudication. There is no turning back the clock to the simpler world of the
framers. Joining the World Trade Organization, as we have, or the Kyoto Protocol, as we ultimately have not, does detract from the democratic legitimacy of the laws that govern us. This lesson
can be easily learned from a glance at the European Union, where countries increasingly cede sovereign authority to the bureaucrats in Brussels. Under these circumstances, there is much to be said for
requiring either the treaty ceding this authority to speak explicitly, or else for Congress to make this concession expressly, in full view of the public who elects it. On the other hand, there is the problem
of timing. Had the United States not invaded Iraq under a claim of international law that many other countries rejected, or had the Guantánamo disaster been avoided by the exercise of wiser judgment, it

But the
would be relatively easy to conclude that the Supreme Court was right to pull us back from too rapid an entrance into an international order that undercuts our sovereignty.

treaty decision came at just the moment when the United States was trying to reassert its
commitment to the rule of law internationally. The conservatives who carried the day did not care. For them, upholding international judgments
that differ from our own courts’ is inconsistent with our core constitutional values. The message sent, then, in the world and at home, is

precisely the wrong one for this historical juncture, when the United States needs — at least for
the moment — to convince the world that the project of international legality is one in
which we believe . What the Election May Bring There are going to be many more opportunities in the
coming years for the court to take a position on the Constitution and the international order .
Should John McCain become president, there is good reason to believe he would be more committed than President Bush to the international rule of law. Influenced by his experience of being tortured in
Vietnam, McCain has sponsored legislation requiring that U.S. government personnel comply with the Geneva requirement of humane treatment of prisoners. Yet McCain has also snubbed Justice
Kennedy, promising to nominate justices like Roberts and Alito in their ideological orientation; justices of this persuasion are likely to see the Constitution in largely inward-looking terms. Meanwhile,

But if, as
Barack Obama, with his globalized upbringing and insistence on multilateralism, could be expected, as president, to nominate justices more sympathetic to an outward-looking Constitution.

seems likely , the first retirees from the court are liberals, the best Obama could hope for would be to maintain the status quo — not to
institutionalize a liberal majority for the future. Whichever candidate is elected, once the Bush administration is out of office, the war on terror
will almost certainly be waged differently, and the constitutional issues that arise will not be exactly the same as before. Guantánamo Bay will probably be closed, and the legal team that planned it will be
long gone. But most of its detainees will still have to be tried, and their appeals will reach the Supreme Court once again. Of course we will still want to catch terrorists — especially before they act — and
we will have to figure out what to do with them when we do. No matter who is president, the United States will still find itself deeply enmeshed in the affairs of Afghanistan, even if in the next few years
there are substantial troop withdrawals from Iraq. At the same time, the processes of globalization have not been turned back by the war on terror. The growing global financial crisis calls for more

Conflicts between U.S. courts and international tribunals about the meaning
international regulation, not less.

of our international obligations are going to become more and more common , just as they have become for
members of the European Union. Next time, the Supreme Court may not be able to avoid conflict by assert ing

that the courts are not obligated to listen to the international body. When that happens,
new doctrines and solutions are going to have to be developed. In these all-important processes, as always in the history of
the court, people are everything. Justices vary widely in temperament, ideology, intelligence and preparedness. The best justices can be really very impressive; the worst ones truly disastrous. Charged

with interpreting the Constitution and therefore shaping its contemporary orientation, the Supreme Court needs to be extraordinarily
sensitive to the demands of history. When the court gets it wrong, the consequences can be
serious. The Constitution we get will still be the one we deserve, but our deserts need not be good ones. The Constitution, let us not forget, gave us slavery and segregation. It gave us
dysfunctional limitations on progressive legislation that was desperately needed in the years before the Great Depression. We like to think the Constitution is
always leading us toward a more perfect union. But this has not always been the case, and
as with any experiment, there is no guarantee that it will be in the future .
 1NC – Terror
State death row is an alt cause

It’s not a viable threat – no evidence a single group can do it

 Experts and officials agree there’s no risk
 No evidence a single group can do it – from Unal, research fellow in nuclear
policy
 It’s hard for states, let alone terrorists
 Too hard to access or create enriched uranium, but it degrades naturally, and
they can’t maintain it
 Majority of attacks are conventional like knives and cars

Ward 18 [Antonia Ward is an analyst on the Defence, Security, and Infrastructure

team at RAND Europe. s the Threat of Nuclear Terrorism Distracting Attention from
More Realistic Threats? July 27, 2018. https://www.rand.org/blog/2018/07/is-the-
threat-of-nuclear-terrorism-distracting-attention.html]

experts and officials contest the

Despite Obama's remarks in 2016 and these two incidents,
viability of the nuclear terror ism threat . Dr Beyza Unal, a research fellow in nuclear
policy at think tank Chatham House, argued there is currently no evidence that terrorist
groups could build a nuclear weapon. Similarly, a report by the C ouncil on F oreign
R elations in 2006 emphasized how building a nuclear bomb is a difficult task for states ,
let alone terrorists

. This is because
of the issues involved in accessing uranium and creating and
maintaining it at the correct grade ( enriched uranium ).

While nuclear terrorism is a concern, the majority of terrorist attacks are conducted with
conventional explosives. The 2017 Europol Terrorism Situation and Trend Report states that 40 percent of
terrorist attacks used explosives. These explosives originate from a wide variety of countries across the world. According to
a study by Conflict Armament Research, large quantities of explosive precursor chemicals used to make bombs as seen in
the 7/7 attack in London in 2005 and the 2017 Manchester Arena attack, have been linked to supply chains in the United
States, Europe, and Asia via Turkey. The threat from the spread of chemical precursors prompted the EU to begin looking
at ways to tighten the regulations of these chemicals (PDF).

A nuclear terrorist attack would have grave consequences, but it is currently not a realistic or viable
threat given that it would require a level of sophistication from terrorists that has not yet been
witnessed . The recent focus of terrorist groups has been on simplistic strikes , such
as knife and vehicular attacks . If countries are concerned about nuclear terrorism, the best way to
mitigate this risk could be to tighten security at civilian and government nuclear sites. But governments would be better
off focusing their efforts on combatting the spread and use of conventional weapons.
COVID, budget cuts, and surveillance are alt causes to effective
counter terror – we’re yellow
Mohamed 1AC ELDoh 10/2, ELDoh is a businessman with 10 years in international
business development and international relations. He holds an Advanced Certificate in
Counterterrorism and Security Studies from University of St. Andrews, UK and a DBA,
"COVID-19 and the Increasing Risk of Terrorism," Global Security Review, 10-2-2020,
https://globalsecurityreview.com/covid-19-and-the-increasing-risk-of-terrorism/ //AK
While intergovernmental counterterrorism frameworks, cooperation, and efforts already
exist, the current pandemic crisis still presents a n unprecedented challenge to many
countries. This includes the redirection of security forces and militaries’ actions in
curbing the pandemic spread, implementing lockdowns, curfews, regulating
borders entry, and supporting the national overwhelmed healthcare authorities. Though
the latter is important to ensure the general public safety, security bodies must not lose their focus
on countering terrorism, reinforcing border security, and stepping up surveillance and
intelligence activities to anticipate any risks or terrorism plots. Additionally, extremist – but nonviolent –
groups should be closely monitored during the pandemic and economic crisis to counter how such groups
might use the pandemic to advance their propaganda and gain more sympathy from the general public. This includes
right-wing, left-wing, and single-issue extremism groups such as climate activists who turn to terrorism.

Furthermore, as the economic recession builds up, different countries may implement
spending cuts and reduce budgets dedicated to national security, intelligence, military, and law
enforcement concerning various security programs, including counterterro rism. Accordingly, this should not
be the case at all. Even if the economic recession is currently taking its toll on all
sectors, government spending, and budgets dedicated to national security, intelligence, military, and law
enforcement, counterterrorism efforts should not be reduced . As extremists and
terrorist groups are likely to exploit the coronavirus pandemic and post-pandemic economic crisis for
their benefit and incite violence, national governments should not undermine such a
dormant yet imminent threat while tackling the economic consequences of the pandemic crisis. In this
respect, military, national security, intelligence, and law enforcement bodies across the world should
increase , and hone their counterterror ism capabilities, intel ligence sharing , and
international cooperation .

ICCPR isn’t enogh to solve Alt cause – allies are scared about
information security after Trump revealed ISIS info to the
Russians.
Cohen and Gaouette ’17 (Zachary and Nicole; 5/16/2017; writers for CNN Politics; “US allies taken
aback by intel sharing revelation,” http://www.cnn.com/2017/05/16/politics/trump-revelations-russia-allies-
impact/index.html; Date Accessed: 12/25/2017; DS)

Indications that allies are discussing the possibility of reconsidering their information-sharing
relationships with the US comes in the wake of Monday's bombshell Washington Post
report, major details of which were confirmed by CNN, that Trump had shared with the Russians
information provided by a foreign partner agency. The information that "endangered
cooperation from an ally that has access to the inner workings of the Islamic State ,"
according to the Post, was reportedly so sensitive that details were withheld from other
international partners and restricted even within the US government. Trump's national security
adviser, H.R. McMaster, said Tuesday that he stands by his previous statement on The Washington Post report -- he said
the story "as reported is false" -- adding, "The premise of that article is false that in any way the President had a
conversation that was inappropriate or that resulted in any kind of lapse in national security." McMaster said he has not
spoken to foreign nations regarding the reports and intelligence sharing. Israeli intelligence was a source for some of the
information ISIS bomb-making capabilities that the President reportedly discussed with Russian diplomats, according to
US and diplomatic officials. Israeli's ambassador to the United States, Ron Dermer, would not comment on the
intelligence, but expressed confidence in the relationship with the US. The
potential consequences of
disclosing such sensitive information could hardly be more serious, former CIA case officer
Bob Baer told CNN's Erin Burnett on Monday. "The President, by revealing this to the Russians, has lost
control of this information. It's going to go to the Syrians, It's going to go to the
Iranians -- Russian allies," Baer said. "The ability to protect that source whoever he is,
wherever he is has been seriously undermined. ... If a CIA officer had revealed this information to
the Russians, he would be fired instantly."

Britain proves.
Cohen ’17 (Zachary; 5/26/2017; writer for CNN politics; “How US intelligence leaks upset two allies in one week,”
https://www.cnn.com/2017/05/24/politics/manchester-us-leaks-allies/index.html; Date Accessed: 2/18/2018; DS)

Washington (CNN)With multiple high-profile intelligence leaks in recent weeks, the US has
now managed to upset two of its closest allies by allowing the disclosure of sensitive
information -- a trend that is raising concerns around potentially jeopardizing the
trust of key information-sharing partners. Just days after President Donald Trump was
reported to have revealed highly sensitive, likely Israeli-shared intelligence to
Russian officials in the Oval Office, the United Kingdom is voicing its frustration over
leaked information coming from US sources. Although the nature of the two leaks was very different --
with the President reportedly sharing sensitive information with a foreign power in one instance and US law enforcement
sources providing information to the media in the other -- the
two headline-grabbing disclosures both
revealed underlying frustrations maintained by those affected. UK Home Secretary Amber
Rudd slammed US leaks on the investigation into the attack at an Ariana Grande concert
in Manchester, England, as "irritating" on Wednesday after a string of details emerged from US law
enforcement sources before they were released by British police or officials. "The British police have been very clear that
they want to control the flow of information in order to protect operational integrity, the element of surprise," Rudd told
BBC Radio 4's "Today" program. "So it is irritating if it gets released from other sources, and I have been very clear with
our friends that that should not happen again."

But coop is inevitable- monetenegro says terror finance coop

now despite death penalty

Extradited terrorists can’t do anything- they’ve already done the

crime and no reason for deterrence

No reason death penalty is key – other eu fights thump

 1NC – I-Law
Koh card has a bunch of alt causes – it’s about broad foreign
policy which they don’t solve
Harold Hongju 1AC Koh 20, Sterling Professor of International Law at Yale Law
School. He has served as the State Department Legal Adviser (2009-2013) and as
assistant secretary of State for the Bureau of Democracy, Human Rights, and Labor
(1998-2001), “Why U.S. Leadership Matters for the Global Defense, Protection and
Promotion of Human Rights,” American Foreign Service Association, June 2020,
https://www.afsa.org/why-us-leadership-matters-global-defense-protection-and-
promotion-human-rights
A Global System to Promote Human Rights

Remarkably, after World War II, the U nited S tates helped to erect a version of the global system that
Kant envisioned. Through the Marshall Plan, the United States supported the revival of an economically united Europe,
led by the European Union and protected by NATO, that became our
indispensable global partner in
promoting human rights . This approach to global governance formed the
basis for the United Nations—our system to end war and promote human
rights —and associated international institutions to govern international monetary flows,
trade and development. The U nited S tates became the indispensable balance wheel of a
values-driven system of global governance that empowered like-minded
nations to organize ambitious multilateral attacks on all manner of world
problems .

The last few years have offered instead a disturbing counter-vision —

hauntingly evocative of the “ spheres of influence ” painted by George Orwell’s 1984—of a system
where global megapowers are increasingly indistinguishable from one
another in their authoritarianism and commitment to disinformation .
These great powers ignore the violation of human rights and the rule of law in other
spheres and violate them within their own, forging cynical alliances and manipulating public
opinion to make today’s adversaries tomorrow’s allies. Physical and economic barriers are going up everywhere; European
unity is cracking ; and the global commitment to human rights and the rule
of law seems to be eroding . Without consistent U.S. leadership , we risk
returning to the balkanized world that helped bring about the devastations
of the last century .

As a nation, we must ask: Are we really ready to follow this dead end? If we downgrade human
rights in favor of a more “pragmatic” foreign policy, what makes us different from any other country? After all,
advancing human rights is our founding national credo . Abandoning
America’s leadership role is both contrary to our interests and risks further global
destabilization .
It is a false dichotomy to claim that a pragmatic foreign policy must “balance” the pursuit of our national interests with the
Paramount
preservation of our fundamental values, including the defense and protection of human rights.
among our national interests must always be the preservation of our
fundamental values. For ours is not a country built on a common race, ethnicity or religion. Instead, America
is an idea: “we hold these truths to be self-evident.” If we do not consistently defend, protect and promote human rights at
home and abroad, we will lose our distinctive national identity.

Particularly in a time of COVID -19, climate change and refugee outpouring s , U.S.
leadership matters in the global defense, protection and promotion of
human rights . The coronavirus pandemic has unveiled the close global
intertwining of environment, health, economy and human rights. Climate-
caused injury destroys animal habitats, triggering zoonotic (animal-to-
human) diseases, causing pandemics that shatter lives, exacerbating income
inequality and spurring the rise of authoritarian governments that
perpetuate climate injury. Unless we break this vicious cycle , more
pandemics will surely come .

This unsettling moment of instability and uncertainty makes it all the more
urgent that we get back to first principles , both at home and abroad. There is still time
to return our human rights policy to simple values: telling the truth, setting an example ,
and pursuing a consistent vision of human rights protection for the past, present and future.

SPA cards are highlighted out of context – They say that both
countries have trade incentives to maintain relationships with
each other

IL card about cooperation solving is the squo – it says japan

remains eu’s largest trading partner after china. It also calls for
a lot of reforms that the death penalty doesn’t result in.

Ohno is why the status quo solves – it says that current SPA
results in global follow on

The alliance IL is silly – it has nothing to do with the aff

Japan won’t – resistance towards ending capital punishment is

at an all time high
Itabashi, 20 (Hiroyoshi Itabashi, Hiroyoshi Itabashi is a staff writer at Asahi
Shimbun, "Survey: 80.8% approve of death penalty, while 9% opposed: The Asahi
Shimbun", Asahi Shimbun, http://www.asahi.com/ajw/articles/AJ202001190021.html,
1-19-2020, Accessed 7-5-2020) //ILake-JQ

Although the global trend is toward abolishing capital punishment, the

ratio of Japanese who find the death penalty “unavoidable” remains high,
edging up to 80.8 percent in the latest survey .

The figure for those opposing the death penalty dropped to 9.0 percent.
Japan carried out three executions in 2019 and 15 in 2018.
The results of the survey, released Jan. 17 by the Cabinet Office, showed that
56.6 percent of those who approve of capital punishment cited "the feelings
of victims and their relatives” as a reason.
It was followed by “perpetrators of heinous crimes should atone with their own lives,” at
53.6 percent, and “perpetrators of heinous crimes continue to pose a risk of committing
similar crimes if they are allowed to live,” at 47.4 percent.
The finding marked the fourth survey in a row that found more than 80 percent in favor
of executions.
The survey on the death penalty marked the sixth by the Cabinet Office since 1994.
In the face-to-face poll, conducted every five years, respondents were allowed to pick
more than one from a set of answers. Those answers remained almost identical in each
survey.
The latest poll, conducted in November, contacted 3,000 males and females
across Japan age 18 or older. Valid responses were received from 1,572, or
52.4 percent of the total.
The previous polls involved adults 20 years or older.
The 80.8 percent supporting the death penalty represented an increase of
0.5 percentage point from the previous survey in 2014.
The 9.0 percent opposing capital punishment marked a drop of 0.7 point
from the last survey.
Opponents of the death penalty cited that “it is irreparable if a court ruling was flawed,”
at 50.7 percent, up by 4.1 points from the 2014 survey.
The next most common response was “convicts should be allowed to live to atone for
their crimes,” which was cited by 42.3 percent.

The survey found that a majority of respondents view capital punishment as an

effective crime deterrent .

It showed that 58.3 percent said the abolition of the death penalty would lead
to an increase in heinous crime s.

The three inmates executed in 2019 marked the eighth consecutive year that Japan has
carried out the death penalty.

It has no bearing on international law

UNODC 19 [United Nations Office on Drugs and Crime. "The death penalty."
https://www.unodc.org/e4j/en/terrorism/module-8/key-issues/the-death-
penalty.html]
Despite the official or even de facto abolition of the death penalty in many
countries, accompanied by broader international efforts towards its total abolition, including within the United Nations
human rights system, a
number of States continue to use it, notably here to punish some
convicted terrorists . This is reflected too in the fact that some countries have either not ratified the ICCPR at
all or else have entered reservations seeking to limit its application on these issues. (See Ratification Interactive
Dashboard).

Such usage is a controversial issue, premised on various political, legal and moral arguments.
Nonetheless, under international law , there is no absolute blanket
prohibition on capital punishment. The effect though of certain treaty
obligations is that some States have accepted not to use it, whilst others have
also voluntarily agreed not to impose it, under any circumstances.

Under article 2(1) of the European Convention on Human Rights ( ECHR ), the starting
premise is that "[e]veryone's right to life shall be protected by law" and that
"[n]o one shall be deprived of his life intentionally save in the execution of a
sentence of a court following his conviction of a crime for which this penalty
is provided by law" (emphasis added). Technically, this permits the death penalty . Despite
this wording, however, as the case of Ocalan demonstrates, the view of the European Court of Human Rights is that
"capital punishment in peacetime [is now] regarded as unacceptable [and] no longer permissible under Article 2" (2003,
paras. 163 and 166). The
Court added that in order to avoid an arbitrary deprivation
of life, "the most rigorous standards of fairness " should be observed during
criminal proceedings .