Brandon Stras on Scalia 2 and the Folly of Judicial Definitions

University of Michigan Debater Brandon Stras is no stranger to legal research and in this guest post he takes on one of the most read pieces of evidence on the criminal justice reform topic.

It did not shock me that T-Enact made a splash on CJR. On CJR, 2As with the capability to research should never lose to the States CP. As an alternative, agent CPs seemed like a likely out for 2Ns.

Neither did it shock me that Scalia 2 gets a lot of speech time! At first glance, it seems decent. It comes from the Supreme Court. It almost says words that exclude courts affirmatives. Almost. That’s the trap.

This post makes two pleas. One, stop reading Scalia 2. Two, chill the obsession with judicial definitions.

Not Good: Scalia 2

Since skimming this card in the first-released topicality files, my eyebrows raised. Something seemed off. Then I read the full-text and discovered what. For reference, this is the full text:

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

Two obvious problems:

1. We meet. This card doesn’t exclude courts affirmatives. Notice that the Court itself only defines “enactment,” not “enact.” It does conclude an “enactment” comes from Congress instead of the Courts. But the cited definition contradicts that conclusion.

Webster’s New International Dictionary does not conclude Courts can’t enact. Begin with the first clause. To “enact” means to “make into an act or law.” Courts make law all the time. Just look at centuries of common law. Now the kicker comes, the second clause. Many interpret the second clause to exclude the courts, as it mentions a “legislative act.” That makes sense only if you forget how to read. The beginning of the clause uses the acronym “esp.” In a dictionary, that could only shorthand for “especially.” The implication should dawn on you by now. Webster’s says legislatures especially enact, usually enact, but do not exclusively enact.

Yikes. The other definition doesn’t get better. Black’s Law Dictionary here defines the verb “legislate,” pointing out legislating can parallel enacting. Sure. That doesn’t prove enacting can only happen by legislating. Given it defines another word, go ahead and strike it off the flow.

For fun, explore Garner’s dictionary with me. There’s a reason 2Ns don’t read it as a card. It defines enact as enact, “to make into law by authoritative act; to pass <the statute was enacted shortly before the announced deadline>. 2. (Of a statute) to provide <the statute of frauds enacts that no action may be brought on certain types of contracts unless the plaintiff has a signed writing to prove the agreement>.” Courts affirmatives meet definition 1, which only mentions statutes as an example.

Some might respond that the Court intended to exclude Courts, even if it double-turned itself. Three responses. One, ironically, Scalia—and much of the Court—would disagree. Take it or leave it, but Scalia’s one of the most aggressive critics of law by (congressional) intent. Two, we meet debates do not hinge on what the interpretation “intends.” They hinge on whether the affirmative plainly meets the text of the interpretation. It matters what the interpretation says, not what it intends to say. Three, that does not seem very predictable. Cards setting the terms of the topic should not require a mind-reading exercise. Apparently, 2As should predict what the Court hoped to say in 2002, even though the Court did not fulfill its own hopes. Seems ridiculous to me. That segues neatly to the second problem.

2. Even Wright 13 is more predictable.

a) Context. If you circumvent “we meet” through a call to judicial intent, then that should flow affirmative on the predictability debate. The Court did not intend to define “enact” in every context ever. It intended to define only a paragraph of the Voting Rights Act. 42 U.S.C. § 1973c mentions “enact” in passing, pointing out this only applies within the act. It’s 600 words, so I won’t paste it below, but know that this qualifies the entire section, right at the beginning: “with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title.” So it does not apply broadly. And why should it? The Court does not intend to define the word “enact” for all time. It just clears up ambiguity in this bill.

In fact, accepting the Court’s intent would not help much. After all, the VRA asks whether “a State or political subdivision” can “enact or seek to administer any voting qualification or prerequisite to voting.” How can anyone expect this to set the predictable parameters of the resolution? It does not clarify whether a Court can enact criminal justice reform. Instead, it describes voting restrictions. If the 2AC defines criminal justice reform as anything other than a statute, the neg could be in trouble. The resolution does not say “enact a statute pertaining to criminal justice reform.” It goes “enact substantial criminal justice reform.” That matters.

b) Grammar. Scalia 2 defines “enactment,” not “enact.” Believe it or not, but nominalizing words can change them a lot.

After this, responses will devolve to “It WaS a 9-0 At ThE sUpReMe CoUrT.” Now to talk about that.

The Folly of Judicial Definitions

Here’s how most predictability debates go:

1NC – reads a judicial definition

2AC – reads a dictionary definition and/or less qualified judicial definition

2NC – “we have a massive internal link to precision – we cite x judge”

1AR – doesn’t dispute this argument, L

For some reason, most—including and especially coaches—forget that reading a “good” judicial definition does not “end” the predictability debate. This frustrates me. Appealing to judicial definitions amounts to nothing more than appealing to the author’s quals. And evidence comparison shouldn’t begin and end with quals. Apparently, though, in many debates, it does.  Arguments about precision rarely amount to anything more than “our definition author is the best, and their definition author is the worst. Therefore, defer to ours!” Ugh, lame.


Here comes my central contention. Even if some authors are more qualified to interpret law, that doesn’t make them more qualified to interpret the resolution, even on legal topics. The reason is simple. When they interpret law, they don’t do more than that. Their job ends with the statute they interpret. That contrasts with dictionaries. These trusty books have a different job: defining words as people usually employ them.

Bring this back to enact, which has more than one permissive interpretation. For example, it can mean “to represent (a dramatic work, a ‘scene’) on or as on the stage; to personate (a character) dramatically, play (a part)” (the fifth definition of “enact” in OED’s third edition). Think civil war reenactments. This doesn’t fit with the resolution’s following noun, “substantial criminal justice reform.” Could you imagine if the resolution meant the USFG had to act out CJR like a play? Context matters. It’s how we know enact refers to law of some kind.

Some tools to evidence your definition’s “precision” (which has become a meaningless word nowadays):

a) Grammar and common sense. See above.

b) Contextual use. While this should not appear in your 1NCs and 2ACs, which should strive to define words in the resolution, contextual uses of words with resolutional phrases should play some role in topicality debates. They should serve as one of the many tools to evidence that people commonly and plainly employ the words in the way you defend. For example, if 2As have cards saying Courts “enact criminal justice reform” or something to that effect, that could reinforce their definition’s precision.

c) Intent to define. Most bastardize this concept. This does not only mean that the card defines a word somewhere (although that is a floor for topicality cards). It means the card defines the word broadly, defining it as it is usually used. Etymology and linguistics can help this. While some scoff at Wright 13 for “coming from a JD, ergh,” it catalogs how people historically use “enact.”

etc.

Dictionaries deserve more attention. While they do not set up arguments by authority like judicial definitions do, they give debaters the tools to compare whether a definition makes sense. That makes for more sensical predictability debates, even if some coaches reject them off-hand.

Why do these coaches reject them? Well, they preach about predictability.

The argument goes: “CJR is a legal topic. Judges interpret the law as their job. Ergo, judge-made definitions should guide the topical debates.” This is silly.

Judges are not the sole interpreters of the English language. Not even they think so. Instead of trusting themselves, they look to an authority of language higher than themselves: dictionaries!

Why do they cite dictionaries? For a moment, imagine what we call “bills.” They are often trash. Complex, vague, ambiguous—all adjectives attributed to bills. Now imagine the job of judges. They have to answer hard questions about what the language means. Without a Congress-provided definition of a word or phrase, they assume Congress meant its words plainly. And so it cites dictionaries.

Judges do not come up with definitions anew. They choose between already-existing definitions to determine which one best fits the law at hand. That, again, depends on context. So, again, when they define a word in a random law, that might not predictably transplant to what the high school debate resolution says.

The cult of judicial definitions needs some suppression. Stop disregarding dictionary definitions in favor of hardly relevant judicial definitions. Not every word or phrase is best defined by dictionaries, of course. I can see why we’d want qualified people defining “criminal justice reform” or “sentencing.” But we need not turn to judicial definitions to define simple verbs like “enact.”

If all these oh so qualified judges cite dictionaries, we might as well bite the bullet. Let’s do what they do, except guided by the resolution, not a random statute.

For the 2Ns that love T enact, I conclude by throwing you a bone. Look up “enact” in the Oxford English Dictionary. Check the second definition. It says, “a. Of a legislative authority: To make into an act (see act n. 5b); hence, to ordain, decree.” That seems promising enough to me.

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