The New York Sophist

This amazing op-ed from history professor Jack Rakove is perhaps an attempt at a liberal “take down” of originalism, but winds up being a pretty good defense of an originalism that we could all support: What were the topoi and commonplaces of the debates around constitutional issues? What sort of metaphorical connections can we make to those commonplaces and topoi today? How do those arguments interact and guide us for the creation of our own reasons in support of various laws and rights? Most importantly, can a debate – not the result of a debate – be used as compelling proof for something?

Of course none of this came out in the hearings for Judge Barrett. Mostly because the people we elect to the Senate are incredibly stupid, power hungry people who do not approach the world, let alone any issue, as a complex text that invites ongoing encounter and regular reiteration of meaning. Even if an issue feels or seems unassailable, it is good to practice the reasons why, and practice them in terms of language – articulating them orally for audiences.

Originalism was pretty well defended on the last day of the hearings, day four, where everyone else was talking and not Judge Barrett and the Senators (“What do you think of this law/decision?” “Without a case before me, I cannot think about it in a relevant way to this hearing”) I know she didn’t say that, but that’s what she meant. She has a lot of opinions, a lot – just look at how many things she’s written and how many talks she’s given, for what publications and audiences. A law professor, any professor actually, has a lot to say and will never turn down a chance to say it. But that’s not why she was there in the hearing room. That’s what we all wanted, and that’s why she was there, but that’s not why she was there. It’s complicated.

It’s a bad model, having someone interview for this job the same way you’d interview for anything else. I’d argue this interview is a lot less challenging than any other professional interview out there, particularly jobs that require you to make decisions based on hearing speeches and reading voluminous texts that are interpretations of interpretations.

Anyway the fourth day – lots of conversation about Originalism and it’s value and failings. Great stuff there from Judge Thomas Griffin, who is also a law professor, on the value of originalism for progressive thinkers. His comments seem to fold right into the editorial which suggests, at least how I’m reading it, that originalism means you need to immerse yourself in the arguments of the debates around the Constitution, not what this or that founder believed.

The trouble isn’t having an interpretation or hermeneutic, the trouble is trying to explain to people that context is important and important because it is uncertain, and calls us into account to make sense of it. It calls for an accounting, which is an accounting of us. That’s what should be going on.

I want to make a video about this but haven’t had the time or energy. I’ve just been looking around for my ancient copy of The Federalist Papers which I used to carry around with me for 2 years in High School, just in case I needed it to prove something about some political argument I was having. Anyway, that old book is probably long gone, can’t find it anywhere. I might have to get a new copy which is weird to think about and also kind of fun as it will be time to mark it all up again. Would be a lot better to mark up the old one again and see how I’ve changed. But I can’t expect to still have a paperback from the 1990s around here. Right after I put in the order, I will find it somewhere I bet.

All I’d like to do this week is sit around and listen to music and read the Federalist Papers, but it’s going to be another really busy week.

There are several issues standing in the way of the creation of an American national circuit of WUDC debating. All of them are quite serious issues, and they are going to take a generation to fix.

Fix? Not really the right word. Brush away, clear away, something like that. For these are best considered a sediment on top of American debating; a sediment left there by decades of debate practice influenced by a positivist view of language within a legalistic, punitive system of rules.

The sediment is thick. The metaphor here is not dusting, but more nautical archaeology. Nautical archaeology of ancient Greece or something. It’s a lot of sticky mud. And pulling it off too quickly threatens the treasure below. There is a high risk the patient will reject the new organ of WUDC style debate that is being slowly transplanted across the country.

This is the first of a few posts about these concerns. They are in no particular order.

Student Judges


Debate’s history in the United States has always been a faculty directed program. There was a brief period of time in the history of Colonial Colleges that debate teams were student run, at the dawn of tournament debating. The rise of the Speech Communication department along with the G.I. bill ended that, but it still remains as a relic only at the most elite of American Universities (the most persuasive theory being that elites who attend elite schools do not need any directed or professional speech instruction; people will simply believe them based on class, wealth, power, or simply networking with friends of dad solves the need to be persuasive. Also the name on the degree doesn’t hurt).

This sediment has led to some very comfortable rules. Judges are all graduates, done debating. They are responsible employees of the University. They are to speak as a teacher, or perhaps an expert. They judge the debate based on expert opinion on debating.

Worlds Style debate has no such system or luxury. The development of the consensus system is a judge training system built into the format. It also serves as a simulated public – a very different idea than the judge as “debating expert.” There are no experts in Worlds debate; there are simulated publics, there are “reasonable persons” judging each debate. Breaking judges are selected, in theory, based on the most attentive and responsible of the judges at the tournament.

I don’t know where or if the fear is a motive here. But one huge assumption is that debating is to be preferred to judging. If a student can debate, they should. Judging comes later. They could unfairly tip the ballance, they might not know enough to make a good decision – and they might not understand the rules of debating well enough to judge it. They might also be bad teachers.

The result of these fears is a comfort that is misplaced, putting one or two judges in a round as long as they know what they are doing. They are comfortable having expert single judges judge a room, which is problematic. All the arguments are directed toward a public ear, not a private expert reviewing the case. There is a shortage of judges because debate directors have to fight the feeling that putting a student in as a judge is a waste. Deliberation solves this, because deliberation forces the students to make and remake the arguments they’ve heard. They have to repeat them, explain them. They also have to articulate how they clashed with every other team in the round. In short, they have to develop a critical debating mind, and they do it through articulation with and to others. They also have to hear the articulation of others, and reflect on it. They must reflect and speak about the rhetoric of others. This is better debate training than any professor at the chalkboard can provide.

Couching judging as 50% of the experience of being a Worlds debater might help us overcome this. The argument must be made that the pedagogy depends on both. We must use the metaphor of the card, or the cross examination, or research, or something like that to convince those transitioning over or adding to their existing adversarial debate program that student judging is a requirement, not an option.

Everyone benefits from this. The more judges, the more something that was lost can be located in a round. The more the judging students can see how judges work, and how decisions should be made. They gain valuable exposure to a variety of argument in practice. And they learn how to explain why and how it worked for them. Students before judging explain why they were persuaded circularly (i.e. “It’s good because it is true, and it’s true because it is good”). After making them judge, they are much better at giving reasons why they were moved, instead of just assuming it was truth moving them around.

Many of the older coaching generation will have trouble accepting students flipping from judging to speaking between tournaments. Questions of eligibility and fairness will appear. But in Worlds, no divisions are needed, as we are not learning an expertise-based argumentation style. Natural language argumentation is available everywhere. We just express the warrants with more explicit language (not swearing, ha ha, very funny you) and more direct expose of interactivity. And that might be a good thing. Well, it’s good if a reasonable person can understand it and assent to it.

Will a student be a bad teacher? The student is the only teacher available. Teacher, understood as a figure of authority, or someone holding onto a sacred and complex set of disciplinary rules, is not a good understanding. The experience is what teaches in Worlds style debating, not a particular expert judge. The experience of the debate teaches, both in the doing and the decision. Everyone learns from the interaction, and they learn something about how people are moved by words.

There are several issues standing in the way of the creation of an American national circuit of WUDC debating. All of them are quite serious issues, and they are going to take a generation to fix.

Fix? Not really the right word. Brush away, clear away, something like that. For these are best considered a sediment on top of American debating; a sediment left there by decades of debate practice influenced by a positivist view of language within a legalistic, punitive system of rules.

The sediment is thick. The metaphor here is not dusting, but more nautical archaeology. Nautical archaeology of ancient Greece or something. It’s a lot of sticky mud. And pulling it off too quickly threatens the treasure below. There is a high risk the patient will reject the new organ of WUDC style debate that is being slowly transplanted across the country.

This is the first of a few posts about these concerns. They are in no particular order.

Student Judges


Debate’s history in the United States has always been a faculty directed program. There was a brief period of time in the history of Colonial Colleges that debate teams were student run, at the dawn of tournament debating. The rise of the Speech Communication department along with the G.I. bill ended that, but it still remains as a relic only at the most elite of American Universities (the most persuasive theory being that elites who attend elite schools do not need any directed or professional speech instruction; people will simply believe them based on class, wealth, power, or simply networking with friends of dad solves the need to be persuasive. Also the name on the degree doesn’t hurt).

This sediment has led to some very comfortable rules. Judges are all graduates, done debating. They are responsible employees of the University. They are to speak as a teacher, or perhaps an expert. They judge the debate based on expert opinion on debating.

Worlds Style debate has no such system or luxury. The development of the consensus system is a judge training system built into the format. It also serves as a simulated public – a very different idea than the judge as “debating expert.” There are no experts in Worlds debate; there are simulated publics, there are “reasonable persons” judging each debate. Breaking judges are selected, in theory, based on the most attentive and responsible of the judges at the tournament.

I don’t know where or if the fear is a motive here. But one huge assumption is that debating is to be preferred to judging. If a student can debate, they should. Judging comes later. They could unfairly tip the ballance, they might not know enough to make a good decision – and they might not understand the rules of debating well enough to judge it. They might also be bad teachers.

The result of these fears is a comfort that is misplaced, putting one or two judges in a round as long as they know what they are doing. They are comfortable having expert single judges judge a room, which is problematic. All the arguments are directed toward a public ear, not a private expert reviewing the case. There is a shortage of judges because debate directors have to fight the feeling that putting a student in as a judge is a waste. Deliberation solves this, because deliberation forces the students to make and remake the arguments they’ve heard. They have to repeat them, explain them. They also have to articulate how they clashed with every other team in the round. In short, they have to develop a critical debating mind, and they do it through articulation with and to others. They also have to hear the articulation of others, and reflect on it. They must reflect and speak about the rhetoric of others. This is better debate training than any professor at the chalkboard can provide.

Couching judging as 50% of the experience of being a Worlds debater might help us overcome this. The argument must be made that the pedagogy depends on both. We must use the metaphor of the card, or the cross examination, or research, or something like that to convince those transitioning over or adding to their existing adversarial debate program that student judging is a requirement, not an option.

Everyone benefits from this. The more judges, the more something that was lost can be located in a round. The more the judging students can see how judges work, and how decisions should be made. They gain valuable exposure to a variety of argument in practice. And they learn how to explain why and how it worked for them. Students before judging explain why they were persuaded circularly (i.e. “It’s good because it is true, and it’s true because it is good”). After making them judge, they are much better at giving reasons why they were moved, instead of just assuming it was truth moving them around.

Many of the older coaching generation will have trouble accepting students flipping from judging to speaking between tournaments. Questions of eligibility and fairness will appear. But in Worlds, no divisions are needed, as we are not learning an expertise-based argumentation style. Natural language argumentation is available everywhere. We just express the warrants with more explicit language (not swearing, ha ha, very funny you) and more direct expose of interactivity. And that might be a good thing. Well, it’s good if a reasonable person can understand it and assent to it.

Will a student be a bad teacher? The student is the only teacher available. Teacher, understood as a figure of authority, or someone holding onto a sacred and complex set of disciplinary rules, is not a good understanding. The experience is what teaches in Worlds style debating, not a particular expert judge. The experience of the debate teaches, both in the doing and the decision. Everyone learns from the interaction, and they learn something about how people are moved by words.