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To read: Tyranny, Inc.: How Private Power Crushed American Liberty–and What to Do About It (2023)
Bibliography| Housing Rights Daily Update
Introduction
In this brief analysis, I’ll cover how the topic is likely to play out and the strategic level, with a focus on the negative. Constructing a strong affirmative case will require building a constructive speech that accounts for the strength of these arguments.
For starters, let me identify one problem with resolutions that require a relatively defined action by the affirmative: The negative has many counterplan options and the entire debate becomes about the prescribed mechanism the affirmative has to defend. In this case, the negative will read counterplans such as massive housing subsidies to solve common advantages due to a lack of housing (poverty, discrimination, gender violence, etc) and then read disadvantages unique to establishing a right to housing. Given the structure of L-D debate, negative teams that force the debate to this particular issue will likely prevail, regardless of the merits of the right to housing.
Positive and Negative Rights
Before I go into the details of how that will likely play out and what the affirmative can do about it, I’m going to explain what a right to housing would be so controversial.
A right to housing would be controversial because in the US there aren’t rights to anything. We speak generally about a “right to an education” and a “right to food,” but nowhere in the law prescribed as a right that there is a right to either of these. In the US, we have rights from things: The government can’t take away your speech, quarter the military in your home, search without a warrant, etc (within limits), but you don’t have rights to things.
The rights you have that that government intervention in your life are negative rights.
Saying that you have a right to something is saying you have positive rights.
Creating a right to housing would create the first positive right in the US, and the negative can draw a lot of ground by focusing the debate on this question.
How Could a Right to Housing (RTH) Be Established?
A RTH could be established by either Congress or the Supreme Court.
Congress could arguably do this directly with legislation or with a Constitutional Amendment and simply say that a RTH exists. It arguably could or could not include funding to support such a right, and it’s hard to say how that would play out as the US has not had any positive rights.
Topically, arguably the only thing the Affirmative can do is argue for the right to be established and not for housing to be funded. Affirmative debaters may argue the funding would follow from the adoption of the right, but given the aversion of the current Congress funding even programs that are already in place, this is unlikely.
The Supreme Court could also say there is a RTH. To do this, they’d have to interpret some provision of the Constitution and say that some particular part of the Constitution or piece of federal legislation requires the US to provide a RTH. For example, maybe they could interpret the preamble – “to promote the general welfare” – to say that a RTH is required. As I said, this would be a stretch (a “creative” interpretation), but the Supreme Court could do this.
The Court could also, perhaps, interpret some US obligation under international law and say that obligation means people have a RTH. We’ll explore this a bit more later.
It’s possible but unlikely the affirmative will say which of these actions they support, as they don’t want to set-up a negative to counterplan with another option (if the affirmative specifies the Supreme Court the negative may counterplan with Congress). They’ll probably say something in cross-x like, “We won’t specific, but we’ll answer disadvantages to each.”
OK, so what are disadvantages that are unique to establishing a right to housing by the Supreme Court? In this section, I’ll review some main disadvantages. The disadvantages with the * can also be used as strong solvency arguments against a RTH.
Court clog*. A RTH would spawn massive litigation by individuals who do not think they have adequate housing. The amount of litigation would be tough for the affirmative to deny, as they’ll say millions of people lack adequate housing.
This will be combined with two things.
One, the affirmative will say millions of people lack housing rights, magnifying the problem.
Two, a reasonable argument can be made that this would create a precedent for positive rights in other areas (health care, education), further clogging the courts.
Three, a lack of enforcement and implementation would simply accelerate claims in the courts.
Given how clogged the courts already are, and given how much they would likely be additionally clogged as a result of the RTH claims, at best, an attempt to get a RTH claim enforced would take years, assuming someone could ever end up getting to court.
Court legitimacy*. Declaring a RTH with such a stretched interpretation of the Constitution would likely undermine the credibility of the Court, which is already a bit perilous. If people don’t view the Court as credible, it would not be able to enforce rights because people will ignore its rulings.
Rights/Courts bad*. There are plenty of arguments floating around that say the legal system is a bad thing for Black people and Hispanics to use because it ends-up discriminating against them. It is combined with an argument that rights-enforcement generally fails (which also means a counterplan can solve better). This “enforcement fails” argument is especially true in this context because it’s implausible that legislators would appropriate the resources to enforce the rights.
A lot of this literature grew out of the “critical legal studies (CLS) movement, and although debaters don’t say they are arguing, “CLS” as they used to, the arguments in the evidence they cite are the same are usually are full of references to claims made by CLS scholars.
CLS scholars point to four main weaknesses in the law.
Indeterminacy of Law: CLS scholars argue that law is inherently indeterminate and that different interpretations can be equally valid. They claim that legal principles and doctrines are often so vague and contradictory that they can support different, even opposing conclusions.
Law as a Tool of Power: They believe that law is not neutral or objective but a tool used by those in power to maintain their interests. They argue that the law often works to reinforce existing social hierarchies and inequalities.
Rejection of Formalism: CLS rejects the formalistic view that legal decisions are made through the unbiased application of rules and principles. Instead, they argue that legal decisions are often influenced by the personal biases and social backgrounds of judges.
Emphasis on Social Context: CLS focuses on the social context of law and seeks to analyze how legal principles function in the real world. They argue that understanding the law requires an examination of the underlying social, economic, and political factors.
Hollow Hope*. The Hollow Hope, a book written by Gerald N. Rosenberg, argues that those who look to the courts to effect significant social change are placing their hope in a hollow receptacle.
The book’s main argument is divided into two key constraints:
The Limited Nature of Constitutional Rights: The Constitution is often vaguely written, and it provides little concrete protection for many rights. This vagueness allows judges, especially those at the Supreme Court level, to interpret the Constitution in a wide variety of ways. However, this can also limit the courts’ ability to create meaningful change.
The Limited Power of the Courts: Even when the courts do make significant rulings, they don’t have the power to enforce them directly. This means that other branches of government and various institutions must act to make these rulings a reality. Rosenberg argues that without the cooperation of other branches, court rulings are often ineffective.
He illustrates these points by examining various cases, including Brown v. Board of Education, Roe v. Wade, and others. In these examples, Rosenberg tries to show that while the decisions were landmark, they didn’t necessarily bring about the intended or immediate social change.
He even argues that there is a backlash against liberal rulings.
Court Rulings as Mobilizing Factors: When the courts issue a decision that aligns with liberal or progressive interests, it can mobilize conservative groups who oppose the ruling. They may feel threatened by the decision, leading them to organize, fundraise, and engage politically to overturn or limit the ruling’s effects.
Political and Legislative Reactions: Conservative groups may lobby legislators, engage in public relations campaigns, or even push for constitutional amendments to counteract a ruling. In doing so, they can sometimes achieve reversals or limitations on the court’s decisions at the legislative or executive levels.
Stimulation of Social Division: Decisions that are seen as liberal or progressive might deepen social divisions and polarize opinions, leading to increased resistance from conservative factions. This can result in a societal environment where the original goals of the court decision become harder to achieve.
Judicial Appointments: Backlash against a liberal court decision can influence subsequent appointments to the courts, including the Supreme Court. Presidents and senators who are sympathetic to the backlash might seek to appoint more conservative judges who are likely to interpret the Constitution differently, potentially undermining or reversing earlier decisions.
Rosenberg argues that these dynamics show that courts are not only weak tools for achieving social change, but they can sometimes provoke reactions that make achieving the desired change even more difficult. By sparking backlash, a court ruling might end up having effects that are the opposite of what its supporters intended.
Since a RTH is a vague idea, judges can say they are enforcing it by requiring, at best, minimal action from authorities and undermine the importance of the claim.
If you do not want to argue any of these arguments as disadvantages and/or kritiks (the CLS/race arguments are often run as kritiks), I strongly suggest you at least prepare a frontline of solvency arguments that pull evidence from these files/positions, as enforcing an effective claim based on RTH is really the most difficult thing for the affirmative to prove. If you run any other counterplan or kritik, you can use this to undermine the workability of the affirmative approach, as they are stuck defending a RTH, and you (as the negative, in this instance) are can argue for any approach you wish.
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Case & Controversy. I’ve always thought this argument is silly since fiat asks us to imagine the result of an action, but there is this argument in debate that there can’t be a court case unless there is an actual controversy. Since no one is claiming a RTH now, it wouldn’t be possible for there to be an actual case. Negative debaters could argue that ruling without a case would hurt the credibility of the court.
Court Politics. The Court Politics argument contends that if a ruling is made by the Supreme Court, on, say a 5-4 decision, the 4 judges who are on the other side will be alienated and not support other decisions. Usually, this focuses on a single judge whose vote will determine the outcome on future decisions which will also be narrowly decided. This often focuses on Roberts, who sometimes sides with more liberal interests and other times sides with more conservative interests. Negative debaters argue that if a more centrist judge was pushed to vote in a liberal way in this instance, that they won’t be persuaded to vote in a more liberal way in another case and then they’ll argue that a conservative ruling in that case is bad.
2024 election. One consequence of being happier with the Court is that they may not choose to vote for the Democratic candidate in the next Presidential election. It is easy to find evidence that says people will turn out now to support the Democrats because they are mad about the Court’s conservative rulings; the plan would flip that.
Precedent. Negative debaters could argue this would create a precedent to protect positive rights in other areas (education, health care) and argue more funding for public schools and “socialized medicine” is bad.
So, imagine the affirmative case is about a lack of housing causing poverty, racism, gender violence, etc; standard advantages and then saying RTH is the solution (they have to).
A good negative strategy will be to solve the harms of a lack of housing with something like massive subsidies or vouchers, a universal basic income, guaranteed employment (all cases on the high school policy topic :)) and then say that a RTH causes all of the problems listed above. It would be tough for the affirmative to defeat this strategy, especially given that the time structure favors the negative.
What if Congress is the Actor?
Congress could establish a RTH either through a piece of legislation or through a Constitutional amendment. If they did this, the Hollow Hope and Court Legitimacy arguments would not apply, as the change would not come from the Court itself, but all of the disadvantages and related arguments associated with making rights claims would still apply.
What Can the Affirmative Do?
As I said, the Affirmative is in a tough spot, but there are a few things they can do.
Win a solvency deficit. Affirmative debaters need to look for good reasons in their evidence about why the best protection is through a rights protection. This will be tough, as these articles really (at best) suggest it as a mechanism and not the best mechanism ever, but it is worth a try.
Argue it is good to wreck the courts. Affirmative debaters could argue that establishing a RTH will wreck the legal system (clog, legitimacy)) and that it is good to destroy some evil Supreme Court and legal system. The negative could easily solve this with a counterplan (Abolish the legal system), but there is some hope.
Argue it’s a precedent for other positive rights. The Affirmative can argue that Court protection of a positive RTH creates a precedent for protecting rights in other areas (education, health care, etc) and that those protections are good. Again, the negative can counterplan to have the government establish programs in those areas, but let them figure that out (or read it as an Add-on and force them to take the risk of counterplanning in the NR)…And, well, as discussed above, they could impact turn it…I am trying here…
International law. I think the affirmative’s best hope is to commit to a plan that says the Supreme Court should establish a RTH based on some international legal obligation the US has. They could then say this strengthens and improves international law and international law is key to world peace (yeah, it’s been so helpful at limiting Russian aggression and China’s adventurism), but you get the idea…Maybe if the US establishes a RTH then China and Russia will play nice. Maybe Israel will stop attacking Palestine and maybe Iran will stop selling drones to Iran. LOL.
Argue for a more specific plan. Defending a more general RTH is more difficult than arguing for something more specific such as what is recommended by Chester Hartman.
Chester Hartman (chartman@prrac.org ) is director of research at the Poverty & Race Research Action Council in Washington, DC., 2006, The Case for a Right to Housing, https://nhi.org/online/issues/148/righttohousing.html
Were we to accept, politically, the need to establish a Right to Housing, we then would have to fill in the details as to the content of that right. While we’re not at that point, and all our energies should focus on achieving the principle and acceptance that there should be a Right to Housing, it is useful at least to list what elements need to be considered.
o Affordability standards. Rather than the usual percentage-of-income rule, Michael Stone, the late Cushing Dolbeare and others have put forward an approach that should be the operating principle – ensuring that all non-shelter needs, in addition to housing costs, can be met, thus producing a percentage figure that is not a fixed number but a variable according to household size and income level.
o Physical condition and space standards. The best local housing code standards (following a detailed examination of these ordinances) might be posited, or possibly HUD’s Housing Quality Standards. Overcrowding standards must guard, on the one hand, against cultural bias and, on the other hand, against accepting dramatically lower standards for the poor.
o A suitable living environment. With regard to the super-important issue of neighborhood quality, there are few, if any, usable standards at present, and so serious work must be undertaken to develop these. And security of tenure should be a key element, too, while allowing for reasonable land-use changes.
Arguing for something more specific is probably more practically achievable. The downside, of course, is that it is just a small fix for a huge problem and, therefore, more vulnerable to kritik.
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Other Approaches
A core difficulty with being affirmative on this topic is that it is hard to defend a RTH as the solution to the housing crisis (which takes many forms) in the United States. As a negative debater, you do not want to argue that there is not a housing problem, but you want to argue that the housing problem is difficult to solve by providing a RTH.
You do not have to suggest a specific alternative (as discussed above). You can also simply argue that a RTH won’t work and that there are many disadvantages to adopting a RTH. The disadvantages discussed above were specific to Supreme Court action, but there are others.
Disadvantages
Politics. Any affirmative plan (yes, I realize plans are controversial in LD, but some people use them) includes housing funding, it will be especially controversial and opposed by Republicans, but even if it does not, establishing a RTH through the legislature would be controversial. This could undermine the ability of Biden to get political support for other agenda items such as the Farm Bill or aid to the Ukraine.
Elections. Providing a RTH might alienate moderate voters who the Democrats need to secure in 2024.
Federalism. This disadvantage argues that housing policy should be left to the states and that federal action infringes on states’ rights.
These last three disadvantages work against any case that establishes a RTH. The following disadvantages work if it’s implemented on broad level and many people are able to access better quality housing.
Inflation. Enabling more individuals to pay for housing would trigger an incredible boom in the demand for housing, resulting in massive inflation in housing prices. This inflation would reverberate throughout the economy, as it would contribute to inflation in all materials that go into the building of homes.
Spending. Supporting the provision of housing for everyone will cause hundreds of billions, if not trillions of dollars. This could further drive up the national debt, undermining the economy and/or causing trade-offs with other domestic programs.
Kritiks
Capitalism. In this context, the popular capitalism kritik argues the housing problem cannot be solved unless capitalism is eliminated. The evidence for this claim is very strong and it’s included in the release. This kritik links best to cases that only protect small rights to housing, as they keep the overall system in-place.
[Note: A strategically strong affirmative case might essentially adopt a socialist housing system].
Coercion. The coercion kritik is the strategic opposite of the capitalism kritik. It argues that when the government collects taxes from one person and gives the money to another that they are violating that person’s liberty. It is the opposite of the capitalism kritik, arguing that it is bad for the government to take control and that the free market and individual rights must be celebrated.
Other kritiks. Kritiks of helping people, such as Nietschze, and other common kritiks, will be common.
Counterplans
Previously, I discussed general ways to provide housing support through means other than a RTH.
States counterplan. This resolution doesn’t specify, “the United States federal government (USFG),” but “United States” is normally interpreted to be the USFG. If the negative wins this interpretation of the term, they can argue for the state governments guaranteeing a RTH, arguing that if the federal government does it it will trigger the Politics, Spending and Federalism disadvantages.
Advantage counterplans. Negative teams will argue for a variety of different means to solve poverty, protect international law, etc.
Conclusion
At least from a conventional debating perspective (non-topical K affs aside), this is going to be rough for the Affirmative. There is a huge affordable housing problem in the US, but defending a RTH is going to be rough, especially relative to counterplans. And even without a counterplan, establishing that an RTH works enough to solve a meaningful advantage that can outweigh a disadvantage will be hard.
And, yes, this doesn’t even get into the practical problems of guaranteeing a right to housing where there is a housing shortage and, given that, it would send existing housing prices through the roof. Or that it would cause trillions of dollars.
It’s a cool thing to dream about, but good luck to the Affirmative if they aren’t reading a K aff.
Resources
I’ve added relevant (and rather recent) backfiles for many of the arguments above.