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Why I like states counterplans

States counterplans - having the 50 states enact the plan instead of the Federal Government - have been a staple for decades. In the last few years, however, I've run across an increasing number of people who think that the states counterplan is abusive or a cop-out. This year's NCFCA resolution has plenty of room for states arguments, so it's worth a quick discussion.

In this post I'll discuss several of the most common objections to states counterplans, and why states arguments make sense as a legitimate Negative strategy.

The "multiple actors" complaint

"The states counterplan fiats all 50 states at once. If they're allowed to control multiple different agents, what's to prevent them from fiating peace between Israel and Palestine?"

The problem of multiple agencies is not unique to the Negative: The Affirmative is fiating multiple agencies too (the President, the 535 members of Congress, various enforcement agencies, etc.) Granted, they're all part of the same government - but the 50 states are still part of the same country.

There's a better example, however. In 2005, the NCFCA Team Policy resolution was Resolved: That medical malpractice law should be significantly reformed in the United States. Experienced debaters may notice something unusual: The resolution doesn't specify an actor. Since they weren't restricted to "the United States Federal Government", most teams just ran state-level plans that passed the same law in all 50 states. Under the "multiple agencies is bad" mindset, this should have been a recipe for chaos - but it wasn't.

On the other hand, it's perfectly possible to have an abusive counterplan with only one actor (for example, "North Korea will unilaterally disarm.") The point here is not that multiple-agent plans can't be abusive, it's just that the number of actors is not the determining factor. We shouldn't automatically reject a plan just because it uses multiple agencies.

The "not real world" complaint

Here's another related counterargument: "50-state counterplans aren't real-world. The 50 states never get together and decide to implement the same laws - that just doesn't happen. If the Negative is allowed to propose solutions that are theoretically possible but wildly unrealistic, what's to prevent them from fiating world peace?"

This would be a good argument - except that it's completely incorrect.

The Uniform Law Commission, also known as the National Conference of Commissioners on Uniform State Laws (NCCUSL), is a multi-state organization dating back to 1892. It has one purpose: Propose uniform laws for adoption by all 50 states. To date, the NCCUSL has drafted over 100 act proposals, on topics ranging from adoption to student credit.

Ever wonder why checks work the same in every state? Most people just assume that there's a federal law standardizing check formats, but in fact, it's a state law - the Uniform Commercial Code, a joint project of the NCCUSL and the American Law Institute.

Think about that. That's amazing. The Federal government could easily have done it - they'd have no problem justifying it under the Commerce Clause - but, instead, the states all got together and did it. Real-life counterplan!

Testing the resolution: Why states arguments make sense

Let's look at the NCFCA resolution this year:

Resolved: The United States Federal Government should significantly reform its criminal justice system.

Debaters are expected to make all sorts of arguments about the resolution:

  • We shouldn't significantly reform the criminal justice system; the problems are small.
  • We shouldn't reform the criminal justice system; it's fine the way it is.
  • We shouldn't reform the criminal justice system; the problems are with the laws, not their enforcement.

We're expected to argue about "should", "significantly", "reform", "its", and "criminal justice system". So why aren't we expected to argue about "The United States Federal Government"?

A states counterplan is just like a significance argument: it tries to prove that part of the resolution is false (in this case, "The United States Federal Government should".) If you're OK with counterplans theoretically, it makes no sense to allow arguments about the second half of the resolution while shunning arguments about the first half.

Federalism: Why states arguments are important

States counterplans are not a cop-out, "we-like-this-plan-but-we-have-to-argue-against-it" strategy. Simply put, there are lots of things that should be done on a state level, not the federal level. The 10th Amendment of the U.S. Constitution reads:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

In other words, many federal solutions are unconstitutional (by overstepping the authority granted to the Federal Government.) Besides the constitution, local control has many other potential advantages, such as easier adaption to regional diversity.

All this is merely to say that when you run a states counterplan you're raising a really important issue - not just grasping at straws so you have something to argue.

Extend-o-tron 5000: Competing with the Affirmative

States counterplans are in an interesting position, because they don't compete with the Affirmative in a direct, conventional way. Let me quickly recap the idea of competition.

In order for a counterplan to be a voting issue, it needs to "compete" with the Affirmative - that is, provide a reason to reject the resolution. It can't just be "another nice idea." In practice, this means that the counterplan alone must be better than both the counterplan and the Affirmative plan (otherwise, you could just implement them both, and there's no reason to reject the resolution.) Conventionally, there are two ways to achieve competition: 1) make the plans mutually exclusive (so you can't have them both at the same time), or 2) run disadvantages against the Affirmative plan. In many cases, states counterplans can go with #2 - if it's clear that the Affirmative plan is unconstitutional, you can just argue that the Federal solution is bad and the states solution is good.

There's another type of competition, however, which is rarely discussed: "competition through irrelevancy". A vast body of legal cases (see, i.e., Prigg v. Pennsylvania) have held that federal laws override state laws under Article VI of the U.S. Constitution. If the judge enacts both the Affirmative plan and the counterplan, the Affirmative (Federal) plan will take precedence.

In other words, if the judge decides to implement both plans, he/she is really deciding to implement only the Affirmative plan. The counterplan just disappears from the picture.

Comments (12) Trackbacks (0)
  1. Good thoughts, but could you give us an example of what a state’s counterplan looks like?

    • Basically what it says in the post – the plan text is “the 50 states do this instead of the federal government”, and the justifications are usually constitutionality. It’s something you can make up on the fly if you have a constitutionality generic like the ones in COG (although pre-scripting it can be helpful.)

      Justification: Constitutionality
      Link 1: No Federal Power – Aff’s plan doesn’t fit under any of the powers in Article 1, Section 8
      Link 2: Reserved For States – 10th amendment therefore reserves it for the states
      Impact: Plan Is Illegal – the constitution is the supreme law of the land (or whatever)

      Counterplan Text
      Mandate: The 50 states shall implement the Aff’s plan instead of the Federal government.
      Topicality: The resolution requires the Federal Government to act, so we do not uphold it.
      Competition: Voting for the Aff plan would be unconstitutional, so you should vote Negative for only the counterplan.

      Uphold the constitution

  2. Here are my thoughts on the States CP. The Federal CJS and the States CJS are arguably 51 different systems. Yes the States can all unite and reform all of their Criminal Justice Systems, but it still leaves the Federal CJS lacking the same reform. Arguably if the reform makes sense we should reform all 51 systems (there is the argument that all of these are different and we can’t just make the same reform over all of them, though.) It seems because of that, the plan just does not have competition with the Aff, unless the Aff is creating an agency of soem kind in which instance it might make sense.

    • CJS states counterplans only compete when there is overlap. Where there are two entirely separate jurisdictions, the CP doesn’t compete. For example:

      AFF: “Prisons have problems. Let’s fix them.” NEG: “Let’s fix the state prisons instead.” (not competitive, because that doesn’t solve for the federal prisons)
      AFF: “Let’s prosecute this crime federally.” NEG: “No, that’s unconstitutional, let’s have the states do it.” (competitive, because it solves the problem – the crime gets prosecuted.)

      That’s kind of a different issue, though; this post was mostly about abusiveness objections to state CPs.

      • Oh ok, would you say that the States CP will only work in a very limited amount of cases? Also what is your opinion on a Federal mandate of Federal CJS and States CJS, counter plan?

        • Yes, application of the states CP to the CJS resolution is restricted to a few specific areas. It remains to be seen what proportion of the active debate cases will fall in those areas.

          Regarding the second question, that’s what we call a ‘plan-plus’ counterplan. It’s generally not competitive, because it’s not a reason to reject the resolution – you’re still saying that the Aff’s case is good, you’re just proposing adding another layer to it. In order to provide a reason to vote Negative, you have to show that we shouldn’t do it at the federal level.

  3. Question.

    There’s a case to abolish the federal death penalty and then send the saved funds to solve prison overcrowding (BOP).

    My CP idea is: abolish death penalty in the 50 states, which have 3051 death row inmates vs. 58 death row inmates at the federal level. Then send the money to state prisons which are overcrowded as well.

    Now it doesn’t solve for the federal problem, but it does reduce government spending and solve overcrowding. Is that legitimate, and how would I argue it?

    The alternative is to send the money to BOP as well, instead of to state prisons. Is that legitimate?

    I just think it would be hard to solve the federal part of the problem with a states counterplan.


    • It doesn’t sound competitive to me; it’s just another nice thing to do, not a reason to vote against the Aff plan. (You could easily do both.) There may be a way to make it competitive, but I’m not sure how.

  4. Haven’t commented on this in awhile.
    In terms of competition, could you simply argue comparative advantage?
    The Judge(s) can only choose between the affirmative and negative teams, there isn’t an option to enact both plans.
    If a States CP provides more benefit than the plan would under the Fed CJS, than isn’t that a substantial reason to reject the resolution, comparative advantage?
    I understand from a real world perspective that the two plans could be enacted at the same time, but that’s how issues are actually solved.
    “Don’t choose solution B because solution A could still be enacted!”
    No if legislators are attempting to solve a problem, they’re going to pick one solution to the problem.

    • The problem is that the judge isn’t voting for a plan, they’re voting for the resolution. (This is pretty much of the basis of all debate theory; even parametrics accepts this, with modifications. That’s why the resolution is a “resolution” – with the word “resolved” – instead of just a topic statement, like “debate about criminal justice.”) The Aff plan tries to prove the resolution true, and the Neg team tries to prove the resolution false (or at least prove that the Aff team hasn’t proven it true.)

      Remember, we’re arguing about what we SHOULD do. If doing the Aff plan means losing the opportunity to do something better, then you SHOULDN’T vote for the plan. (That’s basically the argument a counterplan makes.) If you just present something else that is a nice idea but doesn’t compete with the Aff plan, then you SHOULD still vote for the plan.

      Basically, the judge has to decide whether the Aff plan should be adopted – not choose between two plans. A counterplan has to be a valid reason to NOT adopt the Aff plan to be legitimate.

  5. For this years resoloution (Federal Election Law), I am assuming it would not really work to do a state counterplan, correct?

    • Probably not, since most topical reforms can only be done on the Federal level. Certain things like public campaign finance might be possible to do at the state level instead, however. (Although they’d arguably still be topical under some interpretations of the resolution, which makes their theoretical legitimacy a lot stickier.)

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