Resolved: The United States ought to guarantee the right to housing.
Negative Position
I personally think the negative position will be problematic for many debaters. I guess one of the main reasons for this is human rights are popular. No one wants to violate another's human rights. Governments from around the world are embracing the Universal Declaration of Human Rights (UDHR) as a basis for their constitutions and national laws. Generally speaking, the social reforms embodied in the UDHR are good ideas and certainly beneficial to the well-being of humans everywhere and so it is not easy finding evidence which counters these ideas. Of course by now, if you have done any research you have discovered this for yourself. When looking at this resolution, we could focus on the "ought" mandate. For example, there is an argument that "ought" implies "can" and if one cannot do what one ought, then for her it is no longer a moral duty. Consider the drowning child analogy. If one sees a drowning child, one (ought) has a moral duty to rescue the child. But what if the witness is incapable of swimming? In this case, the duty to act is contingent upon the the understanding the individual is capable of fulfilling the duty. So the Neg debater can work the idea of the analogy into a contention and claim that nations ought guarantee the right to housing only if they are able. It will still be a difficult debate, because how can a rich nation like the U.S. claim it cannot while a less affluent nation like South Africa embraces the duty? For this analysis, I will take a different track. I will spend a great deal of effort in looking at at the so-called "right" to housing. Why is it a right? What exactly is a right? I will argue the "universal" qualification of the UDHR is questionable. I will also do some discussion on the clash of rights. When one right infringes upon another, how to we resolve the conflict? Finally, I want to take you on a completely different kind of course, a kind of critical assessment of the concept of giving and its implications with respect to the old but rarely debated (these days) philosophy of biopower.
Protection of Inalienable Rights
Those who have been engaged in Lincoln Douglas debate throughout their careers or even in the course of this single year are probably already familiar with the political philosophy of John Locke. Locke speaks about the state of nature and the emergence of the social contract as a mechanism for protecting the natural rights, which for him are life, liberty and property (or the pursuit of happiness for others). In political theory, these are considered the inalienable rights, that is, those rights which no government should ever infringe. The idea of liberty is seen as an expression of autonomy or self-rule and was not to be easily given up to the government. The founding fathers of the United States and those who drafted the U.S. constitution, were influenced by Locke and other political philosophers of the day and sought to establish a nation which protected the inalienable rights. The transfer of property as advocated in this resolution was contrary to the principle of guarding the natural rights. Autonomy permitted each to retain or dispose of their property as they saw fit.
Green (2012):
In eighteenth century political thought, rights were founded in reason. The idea was that "the world and its relation to human society [was] a single intelligible structure," capable of comprehension through the application of reason. The concept of human autonomy emerged, which presupposed a belief in self-regulation, development, and direction. We were no longer bound to a world driven by the exorable movements of the natural world, but now humans could transform their world from one of basic self-preservation to a rational form of conscious planning. Autonomy became the premise for emergent theories of society that presupposed basic needs and legal entitlements. It became the duty of government to promote and refrain from interfering with "the integrity of self-determination in human creative action." This also meant that "[w]hether guaranteeing a sphere of freedom in which the [person] can act, or assuring the minimal conditions under which the [person] might live, the notion of rights became inseparable from the conditions of the factual world." Although, "in some sense, any normative principle differs from the factual world insofar as it is an ideal for, rather than a reflection of, the ordering of the world."
At the time of the Declaration of Independence, this duty to enable self-determination was not interpreted to mean a duty to ensure some ownership of property to all citizens, even if unequal. Instead, the aim was to protect from governmental interference those inalienable rights, identified as "life, liberty and the pursuit of happiness." These rights were interpreted to mean not only protection against physical assault, but also the recognition and identification of a certain personal sphere of autonomy necessary for self-realization and selffulfillment. However, the failure to attempt to spread property ownership seemed inconsistent with the highly influential labor theory of property, famously described and explained by John Locke. [397-398]
Lincoln Douglas debaters should understand the concept of negative and positive rights and the role of the constitution in guaranteeing rights. Rights are justified claims made upon others. In order to assure my rights (claims) others have an obligation to honor those claims. Think of the social contract in this context. A claim of a right upon others is like a contract. More properly, I suppose, we can see how my claim to a right imparts a moral duty upon others to grant my right.
Velasquez, et al (2014):
Kant maintained that each of us has a worth or a dignity that must be respected. This dignity makes it wrong for others to abuse us or to use us against our will. Kant expressed this idea in a moral principle: humanity must always be treated as an end, not merely as a means. To treat a person as a mere means is to use a person to advance one's own interest. But to treat a person as an end is to respect that person's dignity by allowing each the freedom to choose for himself or herself.
Kant's principle is often used to justify both a fundamental moral right, the right to freely choose for oneself, and also rights related to this fundamental right. These related rights can be grouped into two broad categories—negative and positive rights. Negative rights, such as the right to privacy, the right not to be killed, or the right to do what one wants with one's property, are rights that protect some form of human freedom or liberty, . These rights are called negative rights because such rights are a claim by one person that imposes a "negative" duty on all others—the duty not to interfere with a person's activities in a certain area. The right to privacy, for example, imposes on us the duty not to intrude into the private activities of a person.
Kant's principle is also often used to justify positive or, as they are often called, welfare rights. Where negative rights are "negative" in the sense that they claim for each person a zone of non-interference from others, positive rights are "positive" in the sense that they claim for each person the positive assistance of others in fulfilling basic constituents of human well-being like health and education.
The founders of the United States understood the concept of negative and positive rights and were determined to guard the inalienable right of liberty. Since claims of rights impose an obligation upon others, rights impose a burden on liberty. Thus, there was a strong desire to limit the positive rights to maximize personal autonomy and check the powers of government. The so-called welfare rights are limited for this reason.
Argan (2005):
One of the chief analytical tools of constitutional interpretation is the basic distinction between positive and negative rights. The conventional thinking is that the Constitution confers no positive right to governmental aid or assistance; instead, the Constitution operates in a negative fashion, preventing the government from abridging certain rights or freedoms. It is often said that the Bill of Rights guarantees freedom from government interference, not a right to governmental assistance. As the Supreme Court explained in DeShaney v. Winnebago County Department of Social Services:
The [Due Process] Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means .... Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even when such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.[100-101]
Inherent in the foregoing discussion of rights a recognition and attempt to manage the clash of rights. In particular we see how rights claims impose duties upon others which can limit their autonomy and liberty. Our founding fathers have favored negative rights in order to preserve liberty and so the positive welfare rights which impose additional burdens on others must be carefully weighed aginst the loss of personal liberty.
The Right of Property
For John Locke, the right to property is inalienable. Property can mean many things which goes far beyond land and houses and incorporates a broad range of claims of ownership, including one's own body, and one's intellectual or creative production and also includes a recognition of privacy as a property claim. For the purposes of this resolution we can narrow our focus to housing. Our definition as stated by international statutes tells the right to housing includes much more than a mere roof over one's head. It includes what is deemed an "adequate" standard of living and so lays claim to a number of kinds of property. However, recall that tangible property is not produced by mental or physical effort without claiming rights to actual some kind of physical property. Property which already has claims by others. So the constitution guarantees the right to keep or dispose of property as one sees fit with limited government interference, but the constitution does not guarantee property ownership.
Green (2012):
At the time of the Declaration of Independence, this duty to enable self-determination was not interpreted to mean a duty to ensure some ownership of property to all citizens, even if unequal. Instead, the aim was to protect from governmental interference those inalienable rights, identified as "life, liberty and the pursuit of happiness." These rights were interpreted to mean not only protection against physical assault, but also the recognition and identification of a certain personal sphere of autonomy necessary for self-realization and selffulfillment. However, the failure to attempt to spread property ownership seemed inconsistent with the highly influential labor theory of property, famously described and explained by John Locke.[398]
The preservation and protection of property was seen as a protection of the inalienable right to liberty. This is further explained in the source as Green continues.
Green (2012):
Indeed, at the Philadelphia Convention, Alexander Hamilton stated: "It was certainly true that nothing like an equality of property existed: that an inequality would exist as long as liberty existed, and that it would unavoidably result from that very liberty itself." [400]
Property has value to be protected because some of the founders believed it permits individuals to work toward greater autonomy and less dependence upon the government. But, the value of property is preserved only when it is protected.
Green (2012):
The value of property is realized only when it is protected, that is, backed up by the state. In this sense, as stated in the beginning of this Article, property is about the right to exclude from the vantage of one with property or with the ability to acquire it. "[T]he power to exclude that our legal structure of property gives us is the starting point of all contracting, all negotiation over use of, access to, and exchange of property and labor." The constitutional protection for property can be perceived as protecting individual autonomy by erecting walls around rights beyond which the government or other individuals may not intrude. But where one lacks a sphere of one's own, and is entirely dependent upon the charity of others, one cannot be said to be autonomous. Like liberty, property facilitates democratic selfgovernance both directly and indirectly. It does so directly by dispersing power, thereby creating a means of enforcing accountability, and indirectly by facilitating the exercise of other liberties. [402]
The Legitimacy of Human Rights
Locke's inalienable rights are seen as universal. All humans, regardless of ideology, religion, or social and economic status are entitled to these legitimate claims. Indeed, it can be argued the natural rights are bestowed upon humans impartially either by divine provenance as many 18th century philosophers believed or by virtue of our innate commonality as a species. The epistemological basis of rights is disputed but nevertheless one can argue Human Rights lay claim to a similar foundation. However, if the Neg can show that so-called housing rights are rooted in political aspiration rather than the fundamental value system common to all humans the judge should reject the Aff claims that housing is a universal right.
Fitzpatrick & Watts (2010):
First, and most fundamentally, intrinsic to the notion of human rights is the idea that they are self-evident, inalienable and non-negotiable: ‘absolute’ in other words. But are the rights declared by the architects of international and European human rights instruments – particularly social rights such as the right to housing – any less politically contested than other claims about how material resources should be distributed in society? One could argue that labelling such claims as moral ‘rights’ is a mere rhetorical device intended to shut down debate by investing one’s own particular political priorities with a ‘protected’ status; after all, as Dworkin (1977) put it, ‘rights are trumps’. But if one dispenses with theological or other natural law justifications for human rights, then what is the foundation of their protected status? Many human rights supporters argue that they are not anchored in a pre-social natural order or in divine reason, but rather are socially constructed and inter-subjective, rooted in a broad normative consensus about the things that all human beings are morally entitled to in order to attain a basic standard of living and to participate in society (Dean, 2010). But the idea that such a consensus exists at a global level is, at the very least, highly arguable (Finch, 1979; Miller, 1999; Lukes, 2008).[109]
As I outlined in the Affirmative analysis of this resolution, the universal human right to housing spans the range of human needs. However, the Negative side of this resolution claims that legitimizing human rights on the basis of human needs is a flawed construct.
Fitzpatrick & Watts (2010):
Such arguments are intuitively appealing, based as they are on the common-sense premise that people have a right to what they need, albeit that positivists might argue that they illegitimately derive an ‘Ought’ (a value statement) from an ‘Is’ (a factual statement). However, even if it is accepted that the Is/Ought gap can be bridged by statements about human need, McLachlin (1998) gives good reasons for resisting any simple equation of needs and rights: there are many things we need that cannot be provided to us as of right. Ignatieff (1984), for example, argues that love, belonging, dignity and respect are all things that we need, but they cannot be provided within a formal framework of rights.[110]
Let's look to my previous analogy of the drowning child and consider the necessity that ought implies can. A key requirement for the legal validation of rights is the fact they can be protected. Recall, property only has value if it is protected. Human rights are legitimate only insofar as they are enforceable.
Fitzpatrick & Watts (2010):
The second common critique of human rights concerns their lack of enforceability within current institutional contexts. Scruton (2006, pp. 20–21) powerfully articulates this objection:
Rights do not come into existence merely because they are declared. They come into existence because they can be enforced. They can be enforced only where there is a rule of law… Outside the nation state those conditions have never arisen in modern times… When embedded in the law of nation states, therefore, rights become realities; when declared by transnational committees they remain in the realm of dreams – or, if you prefer Bentham’s expression ‘nonsense on stilts’.[111]
Finally, it is important to understand an other difference between natural rights and human rights revolves around the ability of governments, charged with protecting rights, to understand the scope and limitations of the claims to rights. Due to the vague nature of many human rights claims, adjudication and enforcement is by necessity transferred from the executive government to the judiciary.
Fitzpatrick & Watts (2010):
The ‘rights’ expressed in international instruments are, inevitably, broad and abstract in nature rather than detailed, delimited and contextualised. If such abstract rights were in fact to be rendered routinely enforceable via courts (international or domestic) this would amount to a major transfer of policy-making power from the political to the legal sphere. Particularly in the case of social rights such as the right to housing, the granting of wide-ranging policy discretion to the courts implies judges determining the allocation of scarce resources in situations where ‘hard choices’ have to be made between a range of needy and/or deserving cases (see also King, 2003). The term ‘over-socialisation’ has been used to describe the situation whereby courts are inappropriately used to decide policy issues (Dean, 2002) and sensitivity to this point lies behind the classic international law distinction between obligations of ‘means’ and obligations of ‘results’ with respect to social rights such as housing (Hammarberg, 2008). Aside from the obvious constitutional concerns about judges rather than (one would hope democratically elected) politicians setting broad policy aims and priorities, it would be unwise for those of a progressive political bent to assume that the judiciary is always apt to be on their side (Griffiths, 1991).
[111-112]
This kind of transfer of power violates the U.S. constitutional principles behind the balance of power, needed to check the powers of the U.S. government. But there is another reason to reject the clams to some human rights including the right to housing as legitimate rights within the context of international law. Many of the rights fail the precept of universality.
Tasioulas (2013):
I believe any variant of the general thesis that human rights bear a constitutive relationship to political legitimacy faces a powerful dilemma in meeting the desideratum of fidelity to the post-Universal Declaration culture of human rights. If compliance with human rights it taken to approach anything like a sufficient condition of legitimacy, a problem will arise in capturing a central feature of human rights thought. This is the idea that the self-same set of human rights, including broadly identical normative content in the duties associated with those rights, is attributable to all human beings throughout the globe. The uniformity of content of human rights, so understood, is in tension with the relational character of assessments of legitimacy. By the latter, I refer to the fact that whether or not any particular state is legitimate depends upon the obtaining of a certain kind of relationship between the state in question and its putative subjects. This relational character means that the selfsame law, or laws with identical content, can be legitimate with respect to some putative subjects and not others. We see an illustration of this tension in Dworkin’s theory, in which compliance with human rights operates as something close to a sufficient condition of legitimacy. Deploying his “good faith test” of legitimacy, Dworkin points out that “a health or education policy that would show good faith effort in a poor country would show contempt in a rich one.” This means that the normative content of the human right to health—the substantive level of health care that it makes obligatory—can vary enormously from one country to another. In a rich country, good faith about human dignity may require the provision of IVF treatment or even some forms of cosmetic surgery, whereas inhabitants of poorer countries would only be entitled to the most rudimentary levels of health care, or perhaps would have no positive entitlement to health care services at all. On this sort of view, the idea that the human right to health confers the same entitlement to all human beings has been effectively eviscerated.
Finally, I will close this discussion of the legitimacy of the universal right to housing by looking at the implementation of such a right, in particular the burdens and practically its application places on governments. Let's see if passes the common sense test.
Sunstein (2003):
If we take the pragmatic approach, we will be likely to ask whether social and economic rights would be a sensible part of an enforceable constitution containing the important institution of judicial review. Should a constitution create a “right to just and favourable remuneration”? To “a standard of living adequate for the health and leisure of” one’s family, “including food, clothing, housing and medical care and necessary social services”? To “rest and leisure”? What would these provisions mean, concretely? What would they mean in a poor nation with high levels of unemployment and inadequate medical care and housing? What would they mean, concretely, in a wealthy nation like the United States or France? If a nation failed to protect the relevant rights, would courts be authorized to intervene—as they usually are when rights are violated? [11]
We don't need to speculate about the answer or surmise theoretical examples or speculations. We can look to places where such laws protecting these kinds of rights are already implemented and note, their impractical nature has forced governments to erect the veneer of compliance while passing over the enforcement duties the laws demand.
Sunstein (2003):
American courts have been reluctant to recognize social and economic rights in part because of a belief that enforcement and protection of such rights would strain judicial capacities. Political actors, even those interested in helping poor people, have been skeptical about the likely effectiveness of constitutional provisions that might be ignored in practice. Outside of the United States, some nations, including India and South Africa, have been alert to the underlying difficulties, and have sharply limited the constitutional status of such rights by reducing judicial authority. And as I have noted, social and economic rights have served as aspirations, with apparently no real-world effects, in the many nations in which they are recognized. It is hard to show that when nations are relatively more likely to help poor people, it is because they have constitutional provisions calling for such help.[11]
The bottom line for Sunstein is nations inclined to help the underprivileged will do so, but enactment of welfare laws such as the right to housing is no guarantee such a right will be realized.
A Kritik of Sorts
While a-priori critiques (kritiks) are fairly common in Lincoln Debate on the national circuit, kritiks remain forbidden ground in traditional circuits. As a policy debate coach, I am very familiar with many kritiks but as a coach on a traditional LD circuit we tend to shy away from critical debate which challenges the resolutions and rhetoric of the proponents. Of course, I think that it is possible to leverage the philosophical foundation and impacts of many kritiks, structure them into a traditional package and run them. Many of the sources for this section are taken from the Gift-K still available online in various contexts relative to past Policy Debate and LD resolutions. Where possible, I have refreshed the links to the cards in the Sources section of this post below. The Arrigo & Williams paper is in my personal archive but the section I quote is seen in many of the online sources embedded in the Gift-K. Bear in mind, I am not going to take this beyond the cards shown below and this explanation of how to apply them.
Simply put, the basic premise of the Gift Kritik, relevent to foreign aid or aid to the underprivileged is the idea the giving of a gift (in the form of aid) generates a reciprocal obligation in the recipient. It is usually an obligation that cannot be repaid and so the gift becomes a form of biopower or dominance of the underprivileged who is indebted (enslaved) to the giver.
Ahluwalia (2001):
By drawing on the analogy of the sun, Bataille examines the theory of the potlatch, which Marcel Mauss had posited, arguing that the system of exchange did not necessarily entail reciprocity. For Bataille, the purpose of gift giving is not merely to receive gifts in return, but that through the act of giving there is an acquisition of power. And this action that is brought to bear on others is precisely what constitutes the gift’s power, which one acquires from the fact of losing. (p. 70) But the one who receives then feels obligated to return a gift, and in the process seeks to outdo the original gift-giver in order to obliterate the effect of obligation. And yet, for Bataille, the ideal potlatch would be one that could not be repaid. It is this sense of spending and dissipation that determines and measures wealth. He points out that the purpose of the potlatch is not simply reciprocity but the conferring of rank upon whomever has the last word. The potlatch thus should be seen as an example of the general economy where excess and luxury are the key defining aspects. The general economy is an economy without equilibrium, one characterised by loss and expenditure without return. In short, gift giving without the expectation of return within the principle of the general economy is a luxury — the excess that is necessary to keep the system in balance [18]
The U.N. suggests the right of housing should be embedded into the development policies of nations and thus housing is recognized as an inherent element of progress. But development is a luxury enjoyed by those nations which have crossed the peak of the Kuznets curve. Development in and of itself is a manifestation of privilege and can serve to "otherize" less developed nations.
Gordon & Sylvester (2012):
The concept of development privileges certain societies, cultures and institutions, while disparaging others; it is grounded in defining the “Other” as incompetent, inferior and in need of transformation. That most “undeveloped” people are people of color only reinforces the Western view of the developing world as essentially dysfunctional, for it comports with American views of brown and black people in the United States. For Europeans the development project continues the colonial civilizing mission. Taking up where colonialism and the “White man’s burden” left off, the development project provides the legal and moral justification for substantial interventions in the affairs of those who have been categorized as underdeveloped.14It justifies and supports the economic and political status quo and the imbalance of international power, and it renders the underdeveloped powerless, for it is the developers who name subjects, problems and solutions. The objective in the following pages is to construct and then deconstruct the concept of development, and to question whether development is so fundamentally flawed that it should be abandoned in favor of a post-development paradigm.[5]
Thus the creation of the "other" empowers economic domination and entrenches the hegemonic ambitions of the privileged nations.
Gordon & Sylvester (2012):
A critical aspect of the dominance of the West resides in its power to produce and propagate knowledge and to thereby create categories such as the underdeveloped. The West has been able to define and indeed to create the “Other” – objects to be studied, described and developed, and that “Other” is invariably lacking, deficient, inferior, and in need of Western assistance. This power to define and represent others is assumed “in the portrayal of ways in which people live their lives, in articulating their experiences – and on this basis, in shaping the processes of change.” Peoples with complex and varied histories, cultures and communities became homogenized masses mired in intolerable poverty and in need of Western assistance. The objects of development proliferated and included, inter alia, poverty, insufficient technology and capital, rapid population growth, inadequate public services, and archaic agricultural practices; new problems were continually incorporated, categorized and further defined. Indeed, the “vast surface over which the discourse effortlessly moved eventually covered practically the entire cultural, economic and political geography of the Third World.”
[79-81]
The basis of the original Gift K (at the time when I first heard of it) was this paper by Arrigo and Williams. Here is the introduction to their thesis.
Arrigo & Williams (2000):
The impediments to establishing democratic justice in contemporary American society have caused a national paralysis; one that has recklessly spawned an aporetic existence for minorities. The entrenched ideological complexities afflicting under- and nonrepresented groups (e.g., poverty, unemployment, illiteracy, crime) at the hands of political, legal, cultural, and economic power elites have produced counterfeit, perhaps even fraudulent, efforts at reform: Discrimination and inequality in opportunity prevail (e.g., Lynch & Patterson, 1996). The misguided and futile initiatives of the state, in pursuit of transcending this public affairs crisis, have fostered a reification, that is, a reinforcement of divisiveness. This time, however, minority groups compete with one another for recognition, affirmation, and identity in the national collective psyche (Rosenfeld, 1993). What ensues by way of state effort, though, is a contemporaneous sense of equality for all and a near imperceptible endorsement of inequality; a silent conviction that the majority still retains power. The “gift” of equality, procured through state legislative enactments as an emblem of democratic justice, embodies true (legitimated) power that remains nervously secure in the hands of the majority.
The ostensible empowerment of minority groups is a facade; it is the ruse of the majority gift. What exists, in fact, is a simulacrum (Baudrillard, 1981, 1983) of equality (and by extension, democratic justice): a pseudo-sign image (a hypertext or simulation) of real sociopolitical progress.
For the future relationship between equality and the social to more fully embrace minority sensibilities, calculated legal reform efforts in the name of equality must be displaced and the rule and authority of the status quo must be decentered. Imaginable, calculable equality is self-limiting and self-referential. Ultimately, it is always (at least) one step removed from true equality and, therefore, true justice.
The ruse of the majority gift currently operates under the assumption of a presumed empowerment, which it confers on minority populations. Yet, the presented power is itself circumscribed by the stifling horizons of majority rule with their effects. Thus, the gift can only be construed as falsely eudemonic: An avaricious, although insatiable, pursuit of narcissistic legitimacy supporting majority directives. [321-322]
This contention can be developed into an interesting and compelling argument which can open the door to Foucault and other more contemporary philosophies. Biopower has quality of life impacts and can make for interesting and fun debate with receptive judges.
The Value Framework
I will conclude this post with a very brief overview of the value framework. The underlying themes which call out to me on this particular Neg position are autonomy and liberty. The value premise of autonomy is very important in the American culture and one that should play well with judges. The Neg preserves autonomy by maximizing personal liberty or choices. The same came be said of liberty. Every new positive right imposes a limitation upon personal liberty and so the Neg preserves liberty by limiting government overreach. I also think government legitimacy is a possible value with additional focus in the contention debate on how attempting to comply with UDHR requirements burdens the citizens, deprives them of liberty or violates the social contract. These are simple ideas, easy to debate and in need of further development. Neg will be facing an Aff world in which the underprivileged suffer grave harms. Certainly Neg can sympathize with the harms of the status quo. But let's not lose sight of the fact there are plenty of groups trying to address these problems, but the human rights context is not a legitimacy path to solvency.