Bureau of Prisons CP

1NC Solvency
The BOP solves, oversees all federal prisons
Kozlowska 16 [Hanna Kozlowska, reporter on Quartz's investigations team, 9-9-2016, accessed 7-31-
2020, US prisoners are going on strike to protest a massive forced labor system, Quartz,
https://qz.com/777415/an-unprecedented-prison-strike-hopes-to-change-the-fate-of-the-900000-
americans-trapped-in-an-exploitative-labor-system/]//Lex AV

On Friday (Sept. 9) prison

inmates across the US will participate in what organizers are touting as the “largest prison strike
in history,” stopping work in protest of what many call a modern version of slavery. The protest, organized across 24 states, is spearheaded
by the inmate-led Free Alabama Movement (FAM) and coordinated by the Incarcerated Workers Organizing Committee (IWOC), a branch of an
international labor union. Its manifesto, published online by “prisoners across the United States,” reads: This is a call to end slavery in America…
To every prisoner in every state and federal institution across this land, we call on you to stop being a
slave, to let the crops rot in the plantation fields, to go on strike and cease reproducing the institutions
of your confinement. The strike will be held on the 45th anniversary of the Attica prison revolt, when prisoners took control of a
maximum-security correctional facility near Buffalo, New York, demanding better conditions and an end to their brutal treatment. Today,
nearly 900,000 US prisoners work while incarcerated. The Bureau of Prisons , which oversees all federal inmates
requires that all prisoners (barring medical reasons) work. State prisoners are in the same boat; according to Eric Fink, a professor
at Elon Law school, in all or nearly all US states prisoners must work. If they refuse, they can be punished with solitary
confinement, revoking visitation, or other measures. Inmates receive very little pay for their labor—in
federal prisons it ranges from $0.12 to $0.40 an hour. In some states, like Texas, those held at state prisons receive zero
compensation. The majority of inmates work on prison maintenance and upkeep—cleaning, cooking, etc.—but approximately 80,000
do work for the outside world. Sometimes these jobs are the result of government contracts; other
times, prisoners end up doing work for private companies such as Victoria’s Secret, Whole Foods or
Walmart. Unlike other American workers, these prisoners are not protected by labor laws. They don’t have access to worker’s
compensation, they get payed well below the minimum wage, and they cannot effectively form unions. Courts have ruled that
because the relationship between prisons and inmates is not that of an employer and a worker, inmates
don’t get these labor protections. According to The Nation, there is a faction among the organizers that would rather see prison
labor abolished, but IWOC is pushing for inmates to unionize. “Prisoners are the most exploited labor class in this
country,” says Azzurra Crispino, spokesperson for the organization. The moral case to let prisoners unionize and have the protections given
to civilian workers is straightforward: forcing people to work is inhumane, as are the ridiculously low wages and
often the labor conditions themselves. The economic case is much more complex. Prisons argue that paying inmates a minimum
wage would bankrupt them—in fact, Alex Friedmann, an editor for Prison Legal News told The American Prospect that the criminal justice
system would collapse without exploiting inmates. But prisons don’t exist in a bubble, their effects ripple across
society. While economists have argued that prison labor in general has little potential to significantly add to the GDP, there are longer-term
and broader effects to consider. Higher wages can help not only inmates, but their dependents in the outside
world, who might avoid ending up on welfare having greater support . Cheap inmate labor may save money for
prisons or corporations, but meaningful, decently-paid employment and job training could reduce recidivism and future crime. Ultimately, it’s
the taxpayers who pay for most of the criminal justice system, and that means they are subsidizing cheap labor for big corporations instead of
investing in reducing crime in the future. In addition to putting pressure on individual institutions, strike organizers are hoping to raise
awareness among the public. “Nothing
is preventing employers from paying prisoners a decent wage and
offering benefits and after 300 years it’s pretty clear it isn’t going to happen on its own. No more than
slavery was ended in this country because slave owners got enlightened ,” said Paul Wright, editor of Prison Legal
News and prisoner rights advocate. “Alas, there is no General Sherman coming to rescue and liberate America’s prison slaves.”
 2NC Solvency
The CP solves - Federal prison privatization is increasing the most now
Gotch and Basti 18 [, [Kara Gotsch, oversees The Sentencing Project’s federal advocacy work and
develops special projects and partnerships to advance the organizational mission of reducing mass
incarceration, Vinay Basti, intern for the sentencing project, 8-2-2018, accessed 8-1-2020, Capitalizing
on Mass Incarceration: U.S. Growth in Private Prisons, Sentencing Project,
https://www.sentencingproject.org/publications/capitalizing-on-mass-incarceration-u-s-growth-in-
private-prisons/]//Lex AV

While both federal and state governments have increasingly relied on privatization since
2000, the federal prison system’s
commitment to privatization grew more dramatically . The number of federal prisoners held in private
prisons rose 120 percent from 15,524 in 2000 to 34,159 in 2016, while the number of state prisoners
incarcerated privately grew by 31 percent over the same time period , from 71,845 to 94,164. Among those confined
under private contracts in the federal system, about 37% are in halfway houses or are on home confinement.7) A reduction in the overall
federal prison population that began in 2014 resulted from changes in sentencing policy and influenced a modest decline in private prison use
in 2016. The overall declines in the prison population helped persuade President Obama’s Department of Justice to phase out
federal private for-profit prison contracts. The move was bolstered by a report from the Department of Justice’s Office of the
Inspector General that outlined safety issues in for-profit facilities. The report concluded that private prisons had “more safety and security
incidents per capita than comparable BOP [Bureau of Prisons] institutions,” in such areas as presence of contraband, prison lockdowns, and
inmate discipline.8) However, in February 2017, Attorney General Jeff Sessions announced the reversal of this
plan, indicating that the Bureau of Prisons would continue to rely on these facilities . Sessions stated that
private prison companies would assist in meeting “the future needs of the federal correctional
system.”9) This policy reversal was followed by a directive to prosecutors to pursue the most serious charges and toughest sentences in all
federal cases. These changes are projected to increase prison admissions and sentence length, which is likely to contribute to an expansion of
private facility contracting.10) Indeed, in May 2017, the DOJ issued a new solicitation to increase capacity by 1,600 beds in privately-run
Criminal Alien Requirement facilities intended for non-citizens charged with lower-level offenses, including drug and immigration offenses.11)
This was followed in January 2018 with a Bureau of Prisons memorandum to federal prison officials
outlining goals for increasing population levels in private facilities and ordering officials to expedite
transfers of people deemed eligible for placement in contract institutions .12)

The CP solves - Executive organizations are the main buyers of prison made clothing
Helfenbein 17 [Rick Helfenbein, President and CEO of the American Apparel & Footwear Association,
10-12-2017, accessed 8-1-2020, How Government-Supported Forced Labor Is Undercutting American
Manufacturers, Government Executive, https://www.govexec.com/management/2017/10/how-
government-supported-forced-labor-undercutting-american-manufacturers/141739/]//Lex AV
At a White House event in July to promote U.S. manufacturing, President Trump said, “The Made in America movement is growing rapidly
under my administration, and we're more determined than ever to protect our jobs, our industry, and our workers. Every day we are putting
America first.” It was a welcome statement but, unfortunately, it doesn’t hold true when it comes to military uniforms and other federal
apparel. It’s an open secret that our government has an inside deal with the Federal Prison Industries, a component of the
Federal Bureau of Prisons that goes by the trade name UNICOR, to “mandatory source” garments made by prison
labor before opening the bidding to American manufacturers . Since prisoners make as little as 23 cents per hour, U.S.
contractors can’t compete and many are being forced to close their doors. Forcing prisoners to sew garments inside
“factories with fences” is legal under the 13th Amendment of the U.S. Constitution, which abolished slavery and
involuntary servitude except as punishment for a crime. However, incentivizing federal agencies to support these prison
programs through federal procurement regulations is akin to promoting modern-day slavery . America holds
only 5 percent of the world’s population, but maintains 25 percent of the world’s prison population. This scenario is inappropriate on many
levels, yet Congress and administrations of both parties have taken steps that at best are hypocritical, and at worst, exacerbate the situation at
the expense of American manufacturers. In February 2016, President
Obama signed the Trade Facilitation and
Enforcement Act to give U.S. Customs and Border Protection the ability to prohibit, stop, and enforce a ban
on imported products coming into the U.S. that have been “ made with forced or prison labor.” On July 17,
2017, when the U.S. Trade Representative published its NAFTA objectives, one target was to “require that NAFTA countries take initiatives to
prohibit trade in goods produced by forced labor, regardless of whether the source country is a NAFTA country.” To be clear, they want to
ensure that prison labor is exempt from benefits under NAFTA, but at the same time the government is continuing to grow the service right
here at home. Last November, the
Justice Department issued the Federal Prison Industries 2016 Annual Report,
which showed that clothing and textiles now account for 74 percent of the profits within these
“factories-with-fences.” In its year-end message, the report notes: “Thanks to the efforts of all our employees and inmate workers, we
are reversing years of declining sales and earnings, and taking steps to grow inmate employment levels.” That means fewer jobs for those on
the outside. It
is disingenuous for our government to take the high moral ground by prohibiting the use of
forced or slave labor around the world, while at the same time accelerating it inside the federal prison
system. With a quarter of the world’s prison population behind our fences, one could easily conclude that we have re-invented the use of
slavery to suit modern times and no one is calling this out. The Defense Department leads government agencies that buy these prison products
—it buys 50 percent of the output. Other key customers include the Agriculture, Homeland Security, Justice, Transportation, Treasury, Veterans
Affairs departments, federal prisons, the General Services Administration, Social Security Administration, and the U.S. Postal Service. If the
federal government didn't farm these orders out to the prisons, these products would be made by U.S.
apparel manufacturers (by law they must be constructed in the United States). There is something wrong when a U.S.
soldier, security guard, or postal worker wears a garment sewn by a prisoner, simply because the
prisoner was coerced by the federal government to sew it. There is something wrong when our federal government
knowingly promotes the growth of this sad enterprise in America.
 Congress CP
Needs a cp text
 1NC Solvency
A repeal to the 13th amendment is the best way to solve the aff. Any other way is a
disservice to racial minorities.
Hanstad 18 (2/19, Rajan, Associate Attorney and graduated from University of Washington School of
Law, “Repealing the 13th Amendment,” https://medium.com/race-law-a-critical-analysis/repealing-the-
13th-amendment-b66f6e34d9c6)

First, the 13th Amendment should be repealed to remove the language of permitting slavery as criminal
punishment, which is essentially a loophole to keep people of color in bondage. Some may argue that instead of
a repeal, we could simply revise the current language. I would caution against this approach. I believe we
need to start fresh and establish a new foundation to engage in discourse surrounding the future of
slavery and criminal justice punishment in this country. Society has changed drastically since the 1860s,
and our understanding of systemic racial problems in our country has developed tremendously. It would
be a disservice to racial minorities to attempt to grapple with the context in which the 13th Amendment
was drafted. Why not, instead, create a law that best suits the needs of the people at this point in our
history, instead of relying on ancient understandings of race and equity. To borrow language from the
Republican Party, I believe we need nothing short of “repeal and replace” when it comes to the
language of the 13th Amendment. This would be the forward looking part of the solution.
 2NC Solvency
We solve the aff- have congress amend the constitution
Haaland & Richmond 7/31 Debra Anne Haaland is an American politician serving as the U.S.
Representative from New Mexico's 1st congressional district. The district includes most of Albuquerque, along with
most of its suburbs. Haaland is a former leader of the Democratic Party of New Mexico. Cedric Levon Richmond is
an American lawyer and politician. A member of the Democratic Party, he has been the U.S. Representative for
Louisiana's 2nd congressional district since 2011. His district includes most of New Orleans. From 2017 to 2019,
Richmond served as Chairman of the Congressional Black Caucus, 7/31/20, “One way we can honor John Lewis'
legacy: Amend the 13th Amendment,” The Hill, https://thehill.com/blogs/congress-blog/politics/510016-one-way-
we-can-honor-john-lewis-legacy-amend-the-13th-amendment

In the U.S. House of Representatives, we’ve introduced several pieces of critical legislation to begin to
right these injustices: H.J. Res. 92, that calls for the 13th Amendment to be changed to prohibit any type of slavery; H.R. 40 that
establishes a commission to study potential reparations for African Americans; and H.R. 7120 , the George Floyd Justice in Policing
Act of 2020 which we passed in June. This bill put forth a bold, comprehensive approach to hold police
accountable, change the culture of law enforcement, and build trust between law enforcement and our communities. Moving
forward, there is still much work to be done. We must commit to reconsidering unfair prison labor
wages, health inequalities, educational reinvestment, biases in artificial intelligence, lack of access to
broadband, in addition to other pressing issues. We must honor the legacy of John Lewis by seriously
tackling systemic racism. We must craft a playbook that boldly and comprehensively addresses the root problems—not one that only
works around the edges. We need to start anew. New ideas . New policies. A new justice. A justice finally for all. We must
amend the 13th amendment.
Courts CP
 1NC CP
Counterplan Text: The United states supreme court should reinterpret the Thirteenth
Amendment so that the Punishment Clause does not except persons convicted of a
crime.

Courts are only ones that can uphold change

Pope 19 (James Gray; Distinguished Professor of Law and Sidney Reitman Scholar @ Rutgers; “MASS
INCARCERATION, CONVICT LEASING, AND THE THIRTEENTH AMENDMENT: A REVISIONIST ACCOUNT”; 2019; New
York Law Review, Vol. 94) 

Suppose that present-day Americans were to abandon the ex-Confederate understanding of the Punishment Clause
and embrace the Republican version? How would prison labor be affected? To begin with, the focus of the analysis would
shift from the particular person to the particular instance of servitude. As related above, contemporary Republicans
categorically rejected the notion that a criminal conviction stripped a person of protection, rendering her available for servitude at
the discretion of legislatures, administrative agencies, or prison officials. 395 Instead, following the text, they critically scrutinized
prison servitude to determine whether, in actual practice, it had been truly implemented "as a punishment for crime whereof the
party shall have been duly convicted," and not, for example, as a device for subjugating black labor or conscripting unpaid workers to
serve private or governmental masters. 396 This approach so thoroughly permeated their deliberations and actions from the 1866
Civil Rights Act through the Kasson-Thayer bill that, if post-enactment history can ever give rise to an original meaning
binding on present-day Americans, critical scrutiny of prison servitude might be such a meaning. Before proceeding
to consider particular applications of the Republican understanding, it is important to be clear on the issue at stake.
Thirteenth Amendment protection for prisoners would not eliminate rehabilitative prison labor programs; it would
outlaw only "involuntary servitude," a limit that-as Raghunath points out- "should serve, rather than detract from, those
programs' non-punitive purposes. '397 This result fits well not only with the Amendment's text, which permits
involuntary servitude only "as a punishment," but also with the views of the Amendment's framers, who celebrated
work, but opposed slavery and involuntary servitude as relations of subjugation that degraded labor and robbed it of
its value both to individuals and to the Republic.3 98 In his pro se papers, Texas inmate Rubin Crain IV presented the
gravamen of the complaint: [T]he state maintains such discretion to illegally determine whether and under what
circumstances an inmate are ... paid (nothing) for their labor; however, can make us work, and charge for medical,
commissary item(s), as well as take the awarded good time for not fulfilling such unconstitutional control due to they
cannot maintain a viable Thirteenth Amendment claim if the prison system requires them to work (i.e. slavery) ....
Wherefore, the petitioner object[s to the] . .. method(s) of using the petitioner and other human beings as an animal
and for personal gain; however, the property interest is me, but it doesn't exist, meaning as a human being. I don't exist nor as a
public interest, according to such an opinion by the court.399 While objecting to servitude, most prisoners crave opportunities to
work. Inmates have claimed that deprivation of work opportunities constitutes cruel and unusual punishment. 400 A group of
radical California prisoners once staged a strike partly to demand more prison industries jobs.401 Award-winning journalist and
former inmate Chandra Bozelko recounts that she looked forward to her job in the prison kitchen, cooking and serving food for
between 75 cents and $1.75 a day. 40 2 She suggests that work provides a lifeline for inmates, who object not to working, but to
being treated as "lifeless targets for exploitation," a view shared by many.403 The solution is not to eliminate prison labor, she says,
but to extend to prisoners workers' rights such as the minimum wage, unemployment compensation, and the right to form and join
labor unions.40 4 Bozelko's proposal could be framed in Thirteenth Amendment terms as a demand that prison labor
be elevated above the level of "servitude." Most of the United States' 2.1 million prisoners work, receiving wages ranging from
zero to two dollars an hour, as compared to the federal minimum wage of $7.25.405 Some prison industry programs require wages
at or above the minimum, but officials often intercept payment and deduct wages to pay for lodging, food, and other necessities
purchased from the prison at monopoly prices. 40 6 It is true that, compared to the era of convict leasing, today's prison labor
programs are hedged about with restrictions, some of which date back to the New Deal. After decades of agitation by unions and
prison reformers, for example, Congress banned the interstate shipment of inmate-produced goods to private parties, thereby
drastically reducing the demand for prison labor.407 With the onset of mass incarceration, however, restrictions were loosened and
prison industries began a recovery that continues today. 408 Various features of present-day prison labor might be vulnerable to
Thirteenth Amendment challenge were courts to abandon the blanket rule that inmates are excluded from protection. 1. Servitude
Inflicted Without Any Sentence to Hard Labor As we have seen, the Kasson Resolution interpreted the Amendment to bar the
imposition of servitude "except in direct execution of a sentence imposing a definite penalty according to law," by which Kasson
meant a sentence to "hard labor. ' 40 9 The Resolution further required that the execution of the sentence be "direct." It would
appear, then, that the decision whether or not to require hard labor could be made only by a judge or jury at the time of sentencing. A
sentence of hard labor for a term would operate as a determinate punishment and not as an authorization for officials to impose or
refrain from imposing servitude at their discretion. Kasson's resolution never went to a vote, and the only evidence that anyone other
than Kasson supported it comes from Thayer's remark that he "presume[d] no man doubts that the true interpretation of the
constitu tional amendment is exactly that which is proposed" in the resolution.410 But Thayer went on to propose a substitute bill
that did not require a sentence at hard labor.411 As far as on-point discussion goes, then, the record tells us only that such an
application was within the range of Republican opinion. Nevertheless, there may be good reason to embrace the requirement. The
Amendment bars all involuntary servitude that is not imposed "as a punishment" for the crime of which the person has "been duly
convicted." The Republicans read this language to require that servitude be inflicted only for purposes of punishment, and not to
raise revenue or generate private profit. 412 Kasson's sentencing requirement appears well suited to implement this limitation.
Consistently with the constitutional text, it requires that servitude be chosen at the time and by the authority that selects a convicted
person's "punishment. '413 By definition, the sentence specifies the punishment to be inflicted on an offender. 414 When a
legislature chooses the available sentences for a crime, or when a court or jury selects one for an individual offender, it is clear that
the issue is supposed to be punishment-not prison discipline, training for future employment, raising revenue for prison operations,
generating private profit, or compensating victims. Nor could servitude be imposed as a means of collecting criminal justice debt, a
practice that effectively makes servitude a punishment for poverty, not crime.415 Any or all of those goals might be favored as a
matter of policy, but the Amendment read according to Republican understandings-does not permit governments to achieve them
by enslaving inmates or subjecting them to involuntary servitude. In addition, legislatures and courts select sentences for particular
crimes, ensuring that there is at least some link between the penalty of servitude and the particular crime "whereof the person shall
have been duly convicted." Thus, servitude could not be inflicted without a legislative, judicial, or jury determination that
the crime was of sufficient seriousness to warrant such a punishment-a Republican concern on which we have
substantial evidence.416 Even those who favor deference on the question whether to impose a punishment of servitude might
agree that there should at least be a decision to which deference can be accorded. As a matter of process, Kasson's sentencing
requirement would ensure that the Amendment's prohibitory clause could not be evaded without both public debate and due
process of law. As it is now, most states implement prison servitude under a general requirement that able-bodied prisoners work,
and not according to particularized sentences of hard labor.417 Were courts to adopt the requirement, then, most states
would be confronted with the choice of abandoning prison servitude or enacting legislation authorizing hard labor
as a punishment. Legislation would entail an opportunity for public debate, legislative investigations, and political
action.418 Once authorized, servitude could be imposed only by courts, which are subject to the requirements of due
process. Unless the legislature made the sentence mandatory, offenders would have a chance to argue that servitude was unduly
severe or otherwise inappropriate for their particular crimes. Furthermore, servitude could not be imposed as an incident to
some other sentence. As it is today, convicted persons can be subjected to servitude because they are too poor to
pay fines.419 Under Kasson's resolution, servitude could be imposed only "in direct execution of a sentence
imposing a definite penalty according to law."'420 Under this rule, poor Americans would not find themselves
trapped in servitude for some reason other than punishment for the crime of which they had "been duly convicted,"
for example failure to pay a criminal justice debt.421 The fact that wealthy, as well as poor, offenders would serve a "definite
penalty" of servitude might sharpen legislative and judicial deliberations about whether to impose hard labor as a punishment for
crime. 
 2NC Solves

Courts Key  
Pope 19 (James Gray; Distinguished Professor of Law and Sidney Reitman Scholar @ Rutgers; “MASS INCARCERATION, CONVICT LEASING,
AND THE THIRTEENTH AMENDMENT: A REVISIONIST ACCOUNT”; 2019; New York Law Review, Vol. 94) 

Judging from present-day legal and popular discourse, one might think that the Thirteenth Amendment's Punishment Clause has
always had one single, clear meaning: that a criminal conviction strips the offender of protection against slavery or involuntary
servitude. Upon examination, however, the meaning of the clause was hotly contested at the outset. Like General Morgan, whose
quotation commenced this article, ex-Confederates and their Democratic allies in Congress promoted the interpretation that
prevails today. From their point of view, the text clearly specified that, once convicted of a crime, a person could be sold into
slavery for life or leased for a term at the discretion of state legislatures and officials. But contemporary Republicans
unequivocally rejected that reading. They held that a convicted person retained protection against any slavery or servitude that was
inflicted not as a punishment for crime, but for some nonpenological end such as raising state revenue, generating private profits, or
subjugating black labor. They questioned the substance of state criminal policy (for example, imposing servitude on black people
but not white people, or on offenders whose crimes were not serious enough to warrant servitude), the ways in which servitude was
implemented (for example, placing offenders under the control of private masters outside prison walls), and the process by which
individuals were condemned to servitude (for example, without an official sentence to hard labor). Applying this critical approach,
they overrode the Democratic opposition and enforced their reading in the Civil Rights Act of 1866, which outlawed the early, race-
based forms of convict leasing. When that proved insufficient, the House passed a bill outlawing race-neutral convict leasing, which
the Senate postponed when the focus of Republican strategy shifted to black voting rights.  The Republican reading faded from view
after the Democratic Party regained control of the Deep South states. For several decades, one party, white supremacist regimes
incarcerated African-American laborers en masse and leased them to private employers without facing a serious Thirteenth
Amendment challenge. Present-day scholars sometimes treat this silence as evidence that the Amendment, correctly interpreted,
authorizes such practices. Courts similarly honor the Democratic reading on the assumption that it has always prevailed. So
thoroughly has it triumphed that even prisoners' rights advocates accept it as constitutional truth. Neither courts nor advocates
have, however, taken into account the framers' views. Their interpretation sank from sight not because it was wrong, but because
Democratic paramilitaries terminated Reconstruction, paving the way for white supremacist state governments to expand convict
leasing and insulate it against challenges, constitutional or otherwise. Had the Republican reading been implemented during the
era of convict leasing, it might have prevented or shortened one of the most barbaric and shameful episodes in United States
history. And perhaps, if revived today, it might yet accomplish similar results. Nothing in the text, original meaning, or Supreme
Court jurisprudence of the Punishment Clause blocks that path. Whether to continue denouncing the Amendment or to reclaim it
for prisoners' rights is, then, less a question of jurisprudence than of constitutional politics. 480 

13Th amendment needs to be re-read from a new point of view, courts perfect for that
Pope 19 (James Gray; Distinguished Professor of Law and Sidney Reitman Scholar @ Rutgers; “MASS INCARCERATION, CONVICT LEASING,
AND THE THIRTEENTH AMENDMENT: A REVISIONIST ACCOUNT”; 2019; New York Law Review, Vol. 94)

 
D. Mass Incarceration and the Badges and Incidents of Slavery Any Thirteenth Amendment challenge to the treatment of convicted
offenders necessarily raises two questions: First, does the challenged practice violate the prohibitory clause? And second, is the
practice excepted from the prohibitory clause by the Punishment Clause? Thus far, we have discussed the Punishment Clause
issue only in relation to what would otherwise be a clear violation of the prohibitory clause: prison servitude. But the Thirteenth
Amendment extends more broadly to the so-called "badges and incidents of slavery." Under that doctrine, it reaches racial
classifications and, arguably, other caste distinctions that resemble race. 468 This raises the question whether, under a
Republican reading of the Punishment Clause, the Amendment might prohibit aspects of mass incarceration other than forced
labor. William Carter and Taja-Nia Henderson have suggested that the imposition of post-carceral disabilities such as felony
disfranchisement, employment discrimination, and housing discrimination constitute badges or incidents of slavery. 469 As
Henderson explains, such "collateral consequences" do not fall under the Punishment Clause because it applies only to criminal
sanctions and not to "civil, regulatory, or private discriminatory treatment of formerly convicted people. ' 470 Accordingly, these
scholars focus on the question whether collateral consequences violate the prohibitory clause (Carter) or fall within Congress's
power to enforce the Amendment (Henderson). Carter suggests that the "status of having been incarcerated" functions as a badge
of slavery, much as blackness did in the antebellum South. Where non-whiteness formerly "defin[ed] one's status before the law for
all time, with no possibility of redemption as a member of civil society, ' 471 a record of imprisonment operates similarly today. The
tainted individual experiences what Gabriel (Jack) Chin has called "civil death," the loss of vital rights and protections taken for
granted by other citizens. 472 The result is "a permanent caste distinction of such magnitude and impermeability as to arguably
amount to a badge or incident of slavery. '473 In effect, the status of having been incarcerated might define a new, functionally
racial classification, as pithily suggested by the saying "orange is the new black." By limiting his challenge to collateral
consequences, Carter avoids a confrontation with the Punishment Clause. His legal theory could, however, extend to various
carceral practices as well if present-day Americans were to embrace the contemporary Republican reading of the Clause. As a
practical matter, the caste that he identifies and challenges is formed not at the moment of release, when collateral consequences
kick in, but at the moment of conviction, when according to the contemporary Democratic reading now embraced by most courts-
the person loses protection against enslavement and involuntary servitude. Civil death follows immediately, as the person becomes
available for exploitation and degradation at the discretion of legislatures, administrative agencies, and prison officials. Not only can
they be forced to work, but they become a thing, a chattel, a tool to be used for the benefit of others as a captive consumer, captive
tenant, and ticket to public money.474 If they try to organize in response, they face punishment. 475 Worse yet, year after year and
decade after decade, judges deliberately and with the full panoply of law sentence even petty offenders to confinement in facilities
where they daily face a substantial risk of severe, illegal violence. 476 Far from an anomalous departure from civilized norms, such
violence has become-according to legal scholar Ahmed White-"constitutive of the social order of the prison," the "means by which
authority, hierarchy, and privilege are articulated among prisoners and between prisoners and their keepers. '477 The theory that
convict race amounts to a badge or incident of slavery raises questions beyond the scope of this article. The point here is simply
that the Punishment Clause does not preclude its acceptance. Under a Republican reading, convicted persons would be left with
some quantum of rights that-at a bare minimum-would enable them to challenge exploitative and degrading practices
unconnected to the crime of which the party has "been duly convicted. '478 If, but for the Punishment Clause, a given deprivation
selectively imposed on convicted offenders would constitute a badge or incident of slavery, then-under a Republican reading of
the Clause-it would violate the Amendment unless justified "as a punishment for crime whereof the person shall have been duly
convicted." Official tolerance of private rape and assault, for example, was integral to the masterslave relation (and thus arguably
a badge or incident of slavery) and would be difficult to justify as a punishment for crime.479  
Court Legitimacy DA
 1NC Link
The plan’s partisan reinterpretation of the 13th amendment destroys court legitimacy.
Shapiro 19 (Ilya, 7/18,  director of the Robert A. Levy Center for Constitutional Studies at the
Cato Institute and publisher of the Cato Supreme Court Review. Before joining Cato, he was
a special assistant/adviser to the Multi‐National Force in Iraq on rule‐of‐law issues and
practiced at Patton Boggs and Cleary Gottlieb., “How the Supreme Court undermines its own
legitimacy,” https://www.washingtonexaminer.com/opinion/how-the-supreme-court-
undermines-its-own-legitimacy)
More important than the specific analysis of Bush v. Gore, however — my point isn’t to rehash that debate — is Yoo’s
exposition of factors to use in evaluating judicial legitimacy. 1. Public opinion. Because the Court’s authority derives wholly from
people following its decisions, public opinion matters. The critic might use data to show that the public has less confidence
in the Court, argue that the Court shouldn’t overturn democratically enacted laws, or suggest that justices appointed by a
president who didn’t win the popular vote are illegitimate. These sorts of claims can be summed up as: “The Court didn’t rule
my way, but the political winds are blowing in my favor, so democracy should win out.” 2. Historical precedent. In what
previous circumstances has the Court’s legitimacy been in doubt? Except that when critics rely on historical precedent, they
often compare current cases to past ones they feel were wrongly decided or to overturned cases that are so different from the
one at hand that the comparison becomes hyperbolic at best, such as comparing the travel ban to Korematsu (Court approval
of FDR’s internment of Japanese Americans), Bush v. Gore to Dred Scott, etc. 3. Impartiality. Those who say the Court fails this
consideration accuse justices of partisanship, lawless ideology, or bias towards a particular kind of party (for example, big
business). These accusations become more common when the Court issues opinions on divisive issues, or,
increasingly, if the justices subscribe to a coherent legal philosophy such as originalism — that is, reading the
Constitution for the original public meaning its text had when ratified. Arguments on these three grounds are found in every
criticism of the Court’s legitimacy, and they’ve been increasingly used since 2001 not just after rulings, but ahead of them, to
influence swing votes. Most notable in that regard, at least until Donald Trump came down his escalator, was the Obamacare
litigation. The first lawsuit was filed the same day President Obama signed the Affordable Care Act into law in March 2010. At
first, the challengers’ legal claims were treated by legal cognoscenti as frivolous sour grapes after losing a political fight. But
when rulings started going against the government, the drumbeat of illegitimacy claims began. After a
Virginia district court invalidated the individual mandate in January 2011, Yale’s Akhil Amar, who had also been a prominent
critic of Bush v. Gore, compared Judge Roger Vinson to Justice Roger Taney, author of Dred Scott, in an op-ed that no longer
appears on the L.A. Times’ website. Fast forward to the end of March 2012, when Supreme Court oral arguments did not go
well for the government. The New Republic’s Jonathan Cohn argued explicitly that the “legitimacy of the Supreme Court” is at
stake, singling out Justice Samuel Alito as being opposed to welfare programs on policy grounds while also appealing to “tens of
millions of Americans” and that “nobody has said they want to stop government from providing universal access to health
care.” Cohn was neither the last nor most prominent critic calling into question a potential ruling against Obamacare. President
Obama himself said it would be “conservative judicial activism,” a sentiment Senate Judiciary Committee Chairman Pat Leahy
repeated a month later. The Vermont Democrat further admonished John Roberts from the Senate floor: “I trust that he will be
Chief Justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch . It is the
Supreme Court of the United States, not the Supreme Court of the Democratic Party or the Republican
Party, not the Supreme Court of liberals or conservatives.” Of course, Roberts did switch his vote to preserve
Obamacare in NFIB v. Sebelius, on a bizarre taxing-power theory that most people recognize was a “twistification,” his best
attempt to uphold the law while not expanding Congress’s regulatory authority. Slate ’s David Franklin wrote that a decision to
strike down the law “would have been received by the general public as yet more proof that the court is merely an extension of
the nation’s polarized politics.” He also compared the chief to another Justice (Owen) Roberts, who made the “switch in time”
in 1937 that started approving New Deal programs. The sad thing about the episode is that the chief justice didn’t have to do
what he did to “save the Court.” For one thing, Obamacare was unpopular: particularly its individual mandate, which even a
majority of Democrats thought was unconstitutional, according to a national Gallup poll taken a few months before the Court’s
ruling. For another, Roberts only damaged his own reputation by making the move after those warnings from pundits and
politicians. As Jan Crawford described in breaking the story about his switch, “Roberts pays attention to media coverage. As
chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the
public. There were countless news articles in May warning of damage to the court — and to Roberts’ reputation — if the court
were to strike down the mandate.” Now, I don’t think that impolitic pressure had much to do with his ultimate vote, but the
American public probably does. Indeed, if Justice Kennedy had agreed with the liberals that there are no structural limits on
federal power, there would have been disappointment, but it would have been understandable given the conventional left-
right rubric. But to lose in an extra-legal way was a sucker punch, belying the idea that there’s a difference between law and
politics and that the judiciary is an antimajoritarian check on the excesses of the political branches. Most important, the whole
reason we care about the Court’s independence and integrity, its legitimacy, is so it can make the tough calls while letting the
political chips fall where they may. Had the Court struck down Obamacare, it would have been just the sort of thing for which
the Court needs its accrued gravitas. Instead, we got a strategic decision dressed up in legal robes, judicially enacting a new law.
In refraining from making the sort of balls-and-strikes call he’s frequently invoked, Roberts actually decreased respect for the
Court, thereby showing why judges shouldn’t play politics. And so we come to the Trump era, where nothing the administration
does is seen as legitimate by a large segment of the population, but in the Supreme Court context especially because of the
Merrick Garland saga. It’s not surprising that last fall, The Nation published an article asserting “ How the Supreme Court Lost
Its Legitimacy,” but that’s hardly different from one called “ The Supreme Court’s Legitimacy Crisis” in the New York Times. The
latter, by Michael Tomasky, argued for the double-illegitimacy of Justices Gorsuch and Kavanaugh
because they were nominated by a president who didn’t win the popular vote and confirmed by
senators who collectively won fewer votes in their last election than those who voted against them. Sen.
Dianne Feinstein, the Judiciary Committee’s ranking member, went on to tweet that Justice Kavanaugh’s confirmation
“undermines the legitimacy of the Supreme Court.” Former attorney general Eric Holder likewise tweeted: “The legitimacy of
the Supreme Court can justifiably be questioned.” Maybe the Democratic presidential candidates will lead a massive resistance?
At least the quant jocks at 538 merely asked the question: “ Is the Supreme Court Facing a Legitimacy Crisis?” Their conclusion
was that, while the Supreme Court is still trusted more than other institutions, that trust is declining, as are the margins by
which justices are confirmed. So what are we to make of all this? Is it simply that where you stand on the question of judicial
legitimacy now also parallels where you sit politically? In two words: pretty much. It’s easy to see why people are
attacking the Court’s legitimacy when we apply Yoo’s considerations, when big issues are on the docket
and we have the culmination of trends whereby divergent judicial theories map onto ideologically
sorted parties (something that Justice Sonia Sotomayor noted in an appearance at Princeton last October). And that goes as
well for the related debate over stare decisis, the extent to which the Court should refrain from overturning erroneous
precedent for legal-stability reasons. For all the gnashing of teeth over Citizens United or Janus, is there any doubt that a
progressive majority would act the same way toward conservative shibboleths? Anyway, that’s all overblown. As Adam Liptak
and Alicia Parlapiano wrote in their term wrap-up for the New York Times: “When [the Court] overruled precedents, it was in
technical cases that attracted little attention.” Moreover, Case Western law professor Jonathan Adler has shown that the
Roberts Court overturns precedents at a significantly lower rate than its predecessors. In the end, the only measure of
the Court’s legitimacy that matters is not the “playing the refs” nonsense we see each spring but the
extent to which it maintains (or rebalances) our constitutional order. As Indiana law professor Luis
Fuentes-Rohwer wrote last year in “ Taking Judicial Legitimacy Seriously,” “judicial legitimacy is a trope
deployed by judges in the pursuit of specific outcomes … a warning about the future and how a judicial
outcome may be received, yet a warning that operates more as a boogeyman. It is a criticism, a call for
restraint, yet lacking in empirical support.” “The man on the street does not care that the Court appears to side
with one party over the other,” Fuentes-Rohwer (no conservative) explained in an update of the Yoo article. “He only cares
that the Court follows a principled process.” The reason we have these legitimacy disputes isn’t because
the Court is partisan but because it can’t be divorced from the larger political scene, and because
sometimes justices seem to make decisions not based on their legal principles but for strategic
purposes. The public can see through that. Ultimately, it’s when justices think about legitimacy that they
act most illegitimately.
 2NC Link
The aff’s partisan reinterpretation proves it is a form of judicial activism.
US Legal No date (“Judicial Activism Law and Legal Definition,”
https://definitions.uslegal.com/j/judicial-activism/)

Judicial activism is the view that the Supreme Court and other judges can and should creatively
(re)interpret the texts of the Constitution and the laws in order to serve the judges' own visions
regarding the needs of contemporary society. Judicial activism believes that judges assume a role as
independent policy makers or independent "trustees" on behalf of society that goes beyond their
traditional role as interpreters of the Constitution and laws. The concept of judicial activism is the polar
opposite of judicial restraint. Critics of judicial activism assert that it subverts the separation of powers
principle founded by the framers of the U.S. Constitution. Judges frequently must interpret what the law
actually says, but they are often accused of "judicial activism" if their interpretation seems be a rewriting
of the law, especially if their rulings strike down or substantially revise laws passed by actual lawmakers.

Making an explicitly partisan reinterpretation of the 13 th amendment proves the plan

is judicial activism. Also, there is consensus that judicial activism is harmful to
democracy.
Roosevelt No date (Professor of Law, University of Pennsylvania Law School, Philadelphia, “Judicial
activism,” https://www.britannica.com/topic/judicial-activism)

Judicial activism, an approach to the exercise of judicial review, or a description of a particular judicial
decision, in which a judge is generally considered more willing to decide constitutional issues and to
invalidate legislative or executive actions. Although debates over the proper role of the judiciary date to the
founding of the American republic, the phrase judicial activism appears to have been coined by the American
historian Arthur M. Schlesinger, Jr., in a 1947 article in Fortune. Although the term is used quite frequently in
describing a judicial decision or philosophy, its use can cause confusion, because it can bear several meanings, and
even if speakers agree on which meaning is intended, they will frequently not agree on whether it correctly
describes a given decision. (Compare judicial restraint.) The term activism is used in both political rhetoric and
academic research. In academic usage activism usually means only the willingness of a judge to strike down the
action of another branch of government or to overturn a judicial precedent, with no implied judgment as to
whether the activist decision is correct or not. Activist judges enforce their own views of constitutional
requirements rather than deferring to the views of other government officials or earlier courts . Defined in
this way, activism is simply the antonym of restraint. It is not pejorative, and studies suggest that it does not have a
consistent political valence. Both liberal and conservative judges may be activist in this sense, though conservative
judges have been more likely to invalidate federal laws and liberals more likely to strike down those of the states.
In political rhetoric activism is used as a pejorative. To describe judges as activist in this sense is to argue that
they decide cases on the basis of their own policy preferences rather than a faithful interpretation of the
law, thus abandoning the impartial judicial role and “legislating from the bench.” Decisions may be labeled
activist either for striking down legislative or executive action or for allowing it to stand. In the early 21st century
one of the most-criticized Supreme Court decisions in the United States was in Kelo v. City of New London (2005),
in which the court allowed the city to exercise its eminent domain power to transfer property from homeowners
to a private developer. Because judges may be called activist for either striking down government action
or permitting it (in Kelo they permitted it) and because activism in political usage is always considered
wrongful, this sense of activism is not the antonym of restraint. A judicial decision may also be called activist
in a procedural sense if it resolves a legal issue unnecessary to the disposition of the case. A disputed example of
alleged extreme procedural activism is the Supreme Court’s controversial decision in Citizens United v. Federal
Election Commission (2010), which ultimately struck down provisions of federal election law that had limited
corporate and union spending on political advertisements. Following oral arguments, the Court called for
reargument of the case on the basis of new questions, because it foresaw that a correct ruling on the questions
originally presented would have left the provisions in place and frustrated its conviction that “this corporation
[Citizens United] has a constitutional right to speak on this subject.” Procedural activism is generally considered
improper at the federal level in the United States and in countries that follow the U.S. system (e.g., Kenya and New
Zealand) on the grounds that the function of courts is to resolve concrete disputes between adverse parties, not to
issue legal pronouncements in the abstract. However, in states that follow other systems (e.g., Austria, France,
Germany, South Korea, Spain, and some U.S. states), courts are permitted to decide issues in the absence of
disputes or adverse parties. Complaints about activism have arisen in most countries where courts exercise
significant judicial review, particularly within common-law systems (e.g., at the federal levels in Australia, Canada,
and India). Although in the U.S. context allegations of activism have been raised more recently by conservatives
than liberals, such charges can be deployed by both sides, and the primary determinant is probably where the
courts stand politically with respect to other government actors. In the first half of the 20th century, the Supreme
Court tended to be more conservative than legislatures and was criticized by liberals for striking down progressive
economic legislation (notably elements of Franklin D. Roosevelt’s New Deal) on the basis of the justices’ supposed
free-market views. In the second half of the 20th century, especially under Chief Justice Earl Warren (1953–69), the
Supreme Court was frequently more liberal than Congress and state legislatures and tended to be criticized by
conservatives for striking down state and federal laws on the basis of the justices’ supposed liberal politics. In the
early 21st century, the Supreme Court tacked back to the conservative side and was criticized for striking down
laws such as campaign finance reform (see Citizens United v. Federal Election Commission). Since neither
conservatives nor liberals claim that judicial decisions should be based on politics rather than law, the
debate over judicial activism does not take the form of arguments for and against. Instead, each side
accuses the other of activism while denying that they themselves engage in it. However, the persistent
difference of opinion among scholars and judges as to how the Constitution should be interpreted
makes it difficult to demonstrate that any decision in a controversial case is the product of politics rather
than law. In consequence, calling a decision activist serves primarily to indicate the speaker’s belief that
those on the other side are not operating in good faith.
 2NC IL Judicial Activism
Judicial Activism bad is bad for court legitimacy- recent cases prove
Marvit 18 Moshe Z. Marvit is a fellow at the Century Foundation specializing in labor and employment
law and policy, 2/26/18, “The Consequences of Judicial Activism on the Supreme Court,” The New York
Times, https://www.google.com/amp/s/www.nytimes.com/2018/02/26/opinion/judicial-activism-
supreme-court.amp.html
The Supreme Court will hear oral arguments today on one of the most impactful labor law cases in decades, but most people already know how
it’s likely to turn out. In Janus v. American Federation of State, County and Municipal Employees, the court will consider whether all public-
sector workers have a First Amendment right to be under so-called right to work, which allows workers to opt out of paying fees to unions that
bargain on their behalf. The Supreme Court is widely expected to rule in favor of Janus on a party line 5-to-4 basis and overturn a 1977
precedent, Abood v. Detroit Board of Education. Abood permitted fair-share fees, which cover only organizing and collective bargaining and do
not include social or political activities in the public sector. Why are we so sure about the Janus outcome? The court heard a similar case in
2016, and it split 4-4 after Justice Antonin Scalia’s sudden death. Neil Gorsuch has proved himself more conservative than Justice Scalia on most
issues, so there is little hope that labor will win this time around. Many observers have noted that if the court bans fair-share fees, it will hurt
unions by, first, depleting them of funds and, second, undermining solidarity through the encouragement of free riding. But fewer people have
considered what conservatives are risking: Union fair-share fees do not exist in an employment vacuum; the same logic and legal framework
that permits the government to mandate these fees allows the government to conduct itself as an employer. Janus is largely being discussed as
a case that is likely to defund and disrupt labor unions, but the case cannot simply injure unions and leave everything else intact. At
last
count, federal, state and local governments employed over 21 million workers, so the courts have had to
develop a framework for governments to be able to manage their work forces without constantly
confronting the Constitution. Imagine if a teacher called in sick, and an administrator had to procure a warrant before searching her
desk drawer for a text book, or else risk violating the Fourth Amendment. Or imagine if a police sergeant who tells an officer that he didn’t have
time to listen to a complaint about the break room now has to worry that he violated the First Amendment. The
Supreme Court has
spent decades developing a framework for managing this tension and how the Constitution applies to
the public-sector workplace. Starting in 1968, the court held that the “government has significantly
greater leeway” in managing citizen employees than in “bringing its sovereign power to bear on citizens
at large.” The Supreme Court has said the First Amendment applies only when the public employee can show that she spoke as a citizen on
a matter of public concern. Similarly, in 1987, the court upheld a public employer’s search of an employee’s desk after balancing “the invasion
of the employees’ legitimate expectation of privacy against the government’s need for supervision, control, and the efficient operation of the
workplace.” In 2010, the court extended this approach to employer-issued electronic devices, allowing a public employer to search them
without a warrant if the search is “motivated by a legitimate work-related purpose.” The
1977 Abood case recognized that the
government has an interest in “labor peace,” in permitting its employees to have an exclusive
representative that can bargain on their behalf, and that workers who benefit from the union’s activities
should pay to support this collective-bargaining function. Therefore, the court created a balancing test that
weighed the government’s interest as employer in managing its work force with the employee’s rights of
free speech and association. According to this balance, any employee in the bargaining unit can choose not to join the union, and as
a result pays only fair-share fees that cover union activities that are germane to collective bargaining. This test falls squarely within the line of
cases that balance the government’s interest as employer against the employee’s rights of speech and association in matters of private
concern. Imagine a state administrator who chooses to draft memorandums according to her own tastes rather than by office protocol, or a city
hall plumber who doesn’t perform her job because she feels she shouldn’t have to pay for her own tools. If the court overrules Abood, as the
petitioners in this case are asking, it
will disrupt the careful balance it has struck concerning public employees’
constitutional rights in the workplace and turn every workplace dispute into a constitutional case. If the
justices strike down Abood and rule that public employees have a First Amendment right not to pay fair-share fees, then all of these trivial
matters of private concern risk becoming constitutional cases. Perhaps this is why several of the most compelling amicus briefs in this case have
come from unlikely sources. The constitutional law scholars Robert Post and Charles Fried (the latter having served as Ronald Reagan’s solicitor
general) write that if the court bans fair-share fees on First Amendment grounds, then it “ would
set in motion drastic changes in
First Amendment doctrine that essentially threaten to constitutionalize every workplace dispute and,
further, to unsettle other constitutional doctrines that distinguish between the government as employer
(or proprietor) and as sovereign.” The prominent conservative legal scholars Eugene Volokh and William Baude went further and
filed a brief supporting the unions. They argue that the government compels subsidies of others’ speech all the time
and that there is nothing constitutionally suspect about that. Mr. Volokh and Mr. Baude point to the fact that we don’t
have a right to opt out of paying a portion of our taxes for issues we disagree with. Furthermore, the government regularly
requires people to purchase speech related to services that they may not want, such as doctors and
lawyers having to enroll in continuing education courses . Or even the general requirements that people purchase car
insurance or vaccinations, despite the fact that some may disagree with that mandate. To recognize a general First Amendment right to not
fund things that one may disagree with, despite the government’s interests in mandating such payments, would completely upend many areas
of life that are necessary for our society to function. If
the Supreme Court recognizes a constitutional right to withhold
payment for matters one disagrees with, or diminishes the government’s interest in efficiently managing
its work force, it will turn every minor payment and every workplace matter into a federal case.

Studies prove it fails

Cross & Lindquist 06 Professor Frank B. Cross is Professor in the Department of Information, Risk, and
Operations Management at The University of Texas at Austin and a former attorney with the law firm of Kirkland &
Ellis in Washington, D.C. He earned his B.A. from the University of Kansas and his J.D. from Harvard Law School.
Stefanie A. Lindquist became deputy provost and vice president for academic affairs, and Foundation Professor of
Law and Political Science at Arizona State University, Oct 2006, “The Scientific Study of Judicial Activism,”
https://www.researchgate.net/publication/228232765_The_Scientific_Study_of_Judicial_Activism

Judicial activism is the source of most criticism of the Supreme Court . Hundreds of law review articles every year
address the issue. The popular press also commonly critiques the Court’s “activism.” Even hundreds of judicial decisions have decried such
activism. While there is no intrinsic reason why an activist judiciary is inevitably a bad thing, the phrase typically carries a very negative
connotation. We attempt to provide some empirical grounding for these assessments of judicial activism, in hopes of removing them from pure
partisanship, in order to set the foundation for a more principled discussion of the practice .
The attack on the Court for activism
took hold during the Warren Court era, with its numerous controversial rulings on issues such as
defendants’ rights. An activist justice was one who believed that the “Supreme Court can play an affirmative role in promoting the social
welfare.” Activism was often juxtaposed against a policy of “judicial restraint,” and it was conservatives who commonly opposed such judicial
activism. As the Court became more conservative, though, liberals took up the assault on judicial activism. At the present time, judicial
activism lacks defined content and is typically nothing more than an ideological harangue . However, the
underlying concern, that judges are acting improperly or even illegally, is a legitimate one. To address this concern, though, we need more
precision in the definition of judicial activism and more rigor in its testing. Hence, this article produces a social scientific study of judicial
activism. Judicial activism is not universally condemned . Some of the decisions for which the Supreme Court is generally
applauded, such as Brown, were in some respect activist decisions. Decisions now lamented, such as Korematsu, were non-activist decisions.
Ronald Dworkin has pressed the virtues of an activist judiciary in the protection of constitutional rights. Judicial activism might be said to be “a
way for a Court to live up to its obligation to serve as citadel of the public justice.” While this defense of activism certainly resonates, it
presumes a certain honest sincerity in decisionmaking, as opposed to ideological judicial decisionmaking .
The critique of judicial
activism essentially challenges this sincerity and claims that justices are simply imposing their political
preferences on society, without electoral accountability or fidelity to the Constitution. For this reason,
judicial activism is generally regarded as an inappropriate exercise of judicial power. For the purposes of this
article, we will adopt the latter interpretation and treat judicial activism as referring to such inappropriate actions that are grounded in the
justices’ ideology rather than in legitimate legal sources. In order to test for judicial activism of this sort, we first require a definition of its
meaning. The first section of this article analyzes the concept of judicial activism and reviews the frequent criticism of the practice. This
necessitates giving some content to the imperfectly operationalized notion of judicial independence itself. We also review the limited empirical
research extant on activism. In the second section, we design an empirical test that strives to measure, insofar as possible, the best view of
judicial activism. This first involves a simple comparison of the likelihood with which individual justices vote to invalidate a statute, the measure
commonly associated with activist decisionmaking. This metric does not distinguish between legitimate and illegitimate statutory invalidations,
however, so we create a more refined model to capture the latter effect. This model considers the degree to which a justice’s votes to strike
statutes are ideologically skewed, as well as measures designed to capture the legal strength of that decision. While this remains an imperfect
measure of activism, it is a considerable advance over existing tools and enables us to compare the relative activism of different justices over
time. The critics of judicial activism seldom define the term, which has been called “notoriously slippery.”
It is “defined in a number of disparate, even contradictory ways,” but writers “persist in speaking about
the concept without defining it.” To give any sort of rigorous meaning to the concept requires that it be better defined. This section
reviews efforts to provide such a definition. In many cases, complaints about judicial activism are only an amorphous lament about the
unpopular actions of the Court, but it is this conversation that frames the term, so our discussion begins there. We proceed to a more
disciplined analysis of judicial activism, beginning with the conventional standard of social science – cases that overturn statutes. This measure,
which dwells on the judiciary overturning the product of a co-equal democratic branch does not effectively capture an activism problem,
though. From a constitutional legal perspective, such actions may be compelled by the judicial role. Moreover, a wide variety of other judicial
actions (such as overturning precedent) may be considered objectionably activist. At the core of the criticisms of judicial activism lies a concern
that the judiciary is going beyond its proper judicial role. Some complain that the activist judiciary is acting “like a legislature” instead of a
court. The precise meaning of acting “like a legislature” rather than a court is not made clear. Sometimes ,
the criticism seems to
mean little more than the Court deciding a controversial issue, but at its heart the criticism suggests
judicial creation, rather than application, of law. The true objection is that the Court is acting non-
judicially in its activism. This is the type of action that any attempt to scientifically study judicial activism
must measure. Justice Black objected to a right to counsel ruling and wrote that “we are deciding what the Constitution
is, not from what it says, but from what we think it would have been wise for the Framers to put in it. ”
This alleged rewriting of the Constitution is probably central to criticisms of judicial activism. The remainder of the section seeks to better
specify what is meant by such activism

Aff doesn’t solve- Judicial Activism undermines court legitimacy

Earle 93 Caroline S. Earle is a lawyer serving Montpelier in Insurance Defense, Regulatory Law and
Administrative Law cases, Fall 1993, “The American Judicial Review Quagmire: A Canadian Proposal,”
https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1569&context=ilj

John Hart Ely notes that commentators have been ominously portending the "destruction" of the activist
Supreme Court for years. He notes that the Court has thrived despite these predictions, and suggests that it will continue to do so. ELY,
supra note 9, at 46-48. Ely's attention, however, is directed toward executive and/or legislative reaction to Supreme Court activism. In contrast,
my point is that the Supreme Court is sowing the seeds of its own "destruction." Judicial
activism has served to undermine the
Supreme Court's legitimacy with the people. Minorities, who in the past have looked to the Court for
protection of their rights, may feel that the Court is increasingly susceptible to majority impulse.
Similarly, those in the majority may fear the influence of special interest groups on the Court and also
may view the politicization of the Court as inconsistent with its unelected and effectively unchecked
status.

We solve- the best way to maintain legitimacy is to get rid of judicial activism
Rosen 06 Jeffrey Rosen is an American academic and commentator on legal affairs, who is widely published on
legal issues and constitutional law. Since 2013, he has served as the president and CEO of the National Constitution
Center, in Philadelphia, “The Most Democratic Branch: How the Courts Serve America,”
https://books.google.com/books?
id=ytscTfP5pZUC&pg=PA13&lpg=PA13&dq=&source=bl&ots=rJaKXpaw7m&sig=ACfU3U12drt6GPeBc49VTWIfCIMA
QZYI7g&hl=en&sa=X&ved=2ahUKEwj328Ly-_3qAhXDhOAKHa9JA9sQ6AEwAHoECA0QAQ#v=onepage&q&f=false
In some of the most controversial cases, in other words, the Court may be uncertain about whether the institutional representatives of the
people, such as Congress and the president, can plausibly represent the people's constitutional views. In
the face of-uncertainty,
history suggests that courts can best maintain their democratic legitimacy-in both the political and the
principled sense-by practicing judicial restraint. In other words, they should uphold the challenged
federal or state law unless they are confident that the constitutional arguments for striking the law
down are not being actively contested by a majority of the American people. Judges should be free or strike down
laws if they believe, in good conscience, that the Constitution requires it, but they should be wary about rejecting the competing constitutional
views of Congress, the presidents, or a majority of the states unless the case for invalidation is very strong. In other words, democratic
constitutionalism is an argument that judges should defer to the views of the political branches and the states
about constitutional issues in the face of intense opposition or uncertainty; it is not an argument that
constitutional values should be primarily enforced in the streets rather than the courts.

History proves judicial activism undermines court legitimacy

Bernstein 14 David E. Bernstein is a law professor at the George Mason University School of Law in Arlington,
Virginia, where he has taught since 1995. His primary areas of scholarly research are constitutional history and the
admissibility of expert testimony. Bernstein is a contributor to the legal blog The Volokh Conspiracy, 2/9/14, “An
ahistorical critique of ‘judicial activism,’”
https://www.google.com/amp/s/www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/09/an-
ahistorical-critique-of-the-constitutional-right-to-liberty-of-contract/%3foutputType=amp
Cato Unbound is hosting an online discussion on “judicial restraint,” with the lead essay by recent VC guest blogger Tim Sandefur. Sandefur’s
essay is entitled “It’s Time to Ditch ‘Judicial Restraint.’ ” This provoked a thoughtful response from lawprof Kermit Roosevelt III, and a
problematic one from Sandhya Bathija of the Center for American Progress. In particular, Bathija relies on historical argument, but her
knowledge of the relevant history seems superficial at best. Let’s go right to my area of expertise, the so-called Lochner era and the right to
liberty of contract. Bathija, undoubtedly knowing that Sandefur thinks Lochner v. New York was correctly decided, writes, “This Lochner era of
jurisprudence has already come and gone. The Supreme Court’s activism during this era significantly hindered the
ability of the government to meet the ever-changing needs of society. Any laws Congress passed
addressing sweatshop conditions, ending child labor, setting maximum numbers of working hours, or
securing a minimum, fair, and livable wage were struck down under the fabricated ‘right to contract’
legal theory.” Put aside the question of whether the “right to contract,” recognized unanimously the by the Supreme Court in the 1890s,
was “fabricated.” Bathija’s explanation of the consequences of the Court’s enforcement of that right is just wrong.
First, the liberty of contract doctrine was primarily applied to state laws (as in Lochner itself), not Congress. Even taking the states and federal
government together, I can’t think of a single Supreme Court case decided under the right to contract that invalidated a law regulating working
(“sweatshop”) conditions; such laws were considered to be well within the government’s inherent “police power”, and even Lochner , which
invalidated the New York Bakeshop Act’s maximum working hours provision, didn’t question the Act’s working conditions and sanitary rules.
Regarding child labor, as I’ve pointed out before the Supreme Court actually unanimously upheld state
child labor regulations against a liberty of contract challenge. The Court did invalidate federal laws
regulating child labor, but because they were beyond the scope of Congress’s regulatory authority, not because they violated the right
to contract. In fairness, Bathija is hardly the first one to conflate liberty of contract with federalism arguments. This is, however, a rather basic
and important distinction, given that every single state adopted child labor laws during the “Lochner era,” and none were invalidated as a
violation of liberty of contract by the Supreme Court–nor, near as I have been able to determine, by any court. The
Court did invalidate
the maximum hours law at issue in Lochner under a liberty of contract theory, but upheld about a dozen
or so other maximum hours laws, including federal law s. The Supreme Court invalidated two women-only minimum wage
laws that came before it, but also upheld the 1916 Adamson Act. The Act not only provided an eight-hour-day for railroad workers but required
that their wages not be reduced in tandem with the reduced hours, providing a substantial government-dictated raise for the workers. The
1931 Davis-Bacon Act, which set a prevailing wage for federal construction contractors, was seen as sufficiently uncontroversial constitutionally
that it did not even provoke a court challenge. In short, to say that the judicial recognition of the right to contract inevitably led to the
invalidation of laws regulating working conditions, hours of labor, child labor, and wages is just plain incorrect. Even worse is Bathija’s footnote
4, which states, “for
more than 30 years, the Supreme Court followed this misguided [liberty of contract]
jurisprudence, striking downs laws regulating labor conditions as a violation of the 14th Amendment
(except, of course, when it came to sexist and racist practices that prevented women and African Americans equal ‘rights of contract’).” The
Court did, in fact, uphold sexist working hours laws, though it’s worth emphasizing that the leading attorney defenders of such laws, Louis
Brandeis and Felix Franfkurter, were fierce opponents of liberty of contract. The Court did invalidate women-only minimum
wage laws, a category of laws about which Bathija appears dyslexic. Should the Court have invalidated them because they were sexist, or
upheld them because they sought to increase wages? In any event, Adkins v. Children’s Hospital, a 1923 case invalidating the District of
Columbia’s women-only minimum wage law, had the most pro-women’s rights rhetoric of any Supreme Court decision through the 1960s, and
was written by Justice George Sutherland, a longstanding supporter of women’s rights as well as a supporter of liberty of contract. Progressive
opponents of liberty of contract attacked Adkins (and Sutherland) vigorously, and more generally supported the sexist “family wage” policy,
which sought to use the law to exclude women and others from the workplace to increase the wages of working class white men. As for race,
there were two categories of cases that directly raised the issue of African-Americans’ right to liberty of contract. The first involved southern
Jim Crow laws that sought to restrict African Americans’ labor mobility. When the first of these laws reached the Supreme Court, a state law
that provided criminal penalties for breach of a labor contract, the
Court invalidated the law as a violation of the
Thirteenth Amendment’s right to be free from involuntary servitude. Justice Oliver Wendell Holmes, the Court’s
leading opponent of liberty of contract since his famous Lochner dissent, vigorously dissented. The other category consisted of a series of local
residential segregation laws. In the first case to reach the Supreme Court, Buchanan v. Warley, decided in 1917,the Court ruled that even
though Kentucky had provided some viable police power explanations for Louisville’s segregation law, it
was unconstitutional
because it violated the rights of both whites and blacks to buy and sell property and to contract freely.
This provoked a draft dissent from (you guessed it!) Holmes, who ultimately chose not to deliver it, probably because his draft failed
to attract a second vote. While Holmes remained publicly silent, Progressive opponents of contract and property rights took to the law reviews
to lambaste the Court’s invalidation of residential segregation laws. In short, while the Court certainly had its shortcomings on race and sex,
from a modern perspective the pro-liberty of contract side tended to be more enlightened than were its opponents, especially when it came to
protecting women’s and African Americans’ contract and property rights. Instead of relying on bogus history, Bathija could have reasonably
argued that the
Court’s protection of liberty of contract was improper as a matter of constitutional
interpretation, that the Court should have been more deferential to elected officials, or that as a
practical matter it did more harm than good. She also could have pointed out that whatever one thinks of Lochner, if the Court
were to adopt Sandefur’s constitutional philosophy, it would have to go significantly further than Lochner and its progeny, even while most
people today think Lochner itself went way too far. But she instead succumbed to the temptation, common to at least one other employee of
the Center for American Progress, of treating Supreme Court history as a morality play that just-so-happens to track modern liberal ideology.
 2NC Impact Court Legitimacy
Court legitimacy sustains hegemony
Robert Knowles 9, assistant professor at the Thomas Jefferson School of Law. He has a J.D. from the Northwestern School
of Law. “American Hegemony and the Foreign Affairs Constitution," Arizona State Law Journal via Dartmouth Library, 2009,
Arizona State Law Journal 41, no. 1, pg. 148, accessed 7-31-2020 //ART

the hegemonic model assumes that preservation of American hegemony depends not just on power,
Third,

but legitimacy .' All three IR frameworks for describing predominant states-although unipolarity less than
hegemony or empire-suggest that legitimacy is crucial to the stability and durability of the system.
Although empires and predominant states in unipolar systems can conceivably maintain their position through the use of force, this is much more likely to exhaust the resources of the predominant state and to lead to counter-

balancing or the loss of control.' Legitimacy as a method of maintaining predominance is far more efficient . The
hegemonic model generally values courts' institutional competences more than the anarchic realist
model. The courts' strengths in offering a stable interpretation of the law, relative insulation from
political pressure, and power to bestow legitimacy are important for realizing the functional
constitutional goal of effective U.S. foreign policy. This means that courts' treatment of deference in foreign affairs will, in most respects, resemble its treatment of
domestic affairs. Given the amorphous quality of foreign affairs deference, this "domestication" reduces uncertainty . The increasing boundary problems caused by the
proliferation of treaties and the infiltration of domestic law by foreign affairs issues are lessened by reducing the deference gap. And the dilemma caused by the need to weigh

different functional considerations-liberty, accountability, and effectiveness-against one another is made

less intractable because it becomes part of the same project that the courts constantly grapple with in
adjudicating domestic disputes.

Court legitimacy key to democracy

Brian Jones 16, lecturer, and Deputy Director of Internationalization at the University of Sheffield School of Law.
"Disparaging the Supreme Court, Part II: Questioning Institutional Legitimacy," LexisNexis via Dartmouth Library, 2016,
https://advance-lexis-com.dartmouth.idm.oclc.org/api/document?collection=analytical-materials&id=urn:contentItem:5K0W-
5110-00CW-H12V-00000-00&context=1516831, accessed 8-2-2020 //ART

Exploration into the institution's legitimacy has not been limited to political candidates and has been even broader throughout the academy. Stephen Gottlieb has written, "In each area that political scientists,
historians, jurists, and legal scholars, both in the United States and abroad, have identified as crucial to the survival of democracy , the Roberts Court has been

leading in the opposite direction." He further states that other top national courts take the " perfection and survival " of
democracy seriously and argues that if the Court's interpretative methods are not based on such reasoning, this will "generate law without logic, mind, or soul and reveal the partisanship of the Court."
Indeed, the politics of the Court remains a primary concern for academics. James Gibson has been investigating Supreme Court legitimacy for over three decades and has some words of caution for the institution. He notes that if
judges are seen as ordinary politicians, the American public tends to support the judiciary less; in fact, some decrease in support for the Court may be due to "intemperate and [*255] politicized dissents by some justices." Gibson

Court "should worry less about angering the public with its policy decisions, and focus more on
reasons that the

the public's satisfaction with its processes , procedures , and politics , if it is to maintain its popular
legitimacy ." Indeed, in relation to those processes, procedures, and politics, the Court could learn much from its peers
Case
 1NC Frontline
Conception of the “living constitution” isn’t radical – it comes from a fear of amending
the constitution, which undermines key reforms in the first place
Stephen M. Griffin ’20, Professor in Constitutional Law at Tulane Law School and author of American
Constitutionalism: From Theory to Politics and Long Wars and the Constitution, March 2020, “Optimistic
Originalism and the Reconstruction Amendments”, accessed at=”
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3558673” ”//ghs-ss
Originalist adherence to Article V as the sole legitimate means of constitutional change is a red thread that runs through and unifies what are
otherwise quite disparate versions of the theory. 74 This contention makes a good deal of sense, at least to lawyers. The underlying intuition is
that there is a hard line between interpretation on one side and amendment on the other . 75 Departures
from the original meaning of the Constitution can be made only through amendment, not through judicial interpretation (or construction) or by
the political branches through informal means. Although this intuition strikes many as plausible, it is important to keep in mind that it is more in
the nature of a normative proposal than an institutionally entrenched reality. In prior work, I argued that the
founding generation
believed that reverence for the Constitution would promote political stability. 76 They succeeded all too
well.77 My argument is that this broadly shared reverence had unanticipated consequences. Reverence makes
it difficult for Americans to regard the Constitution pragmatically and thus entertain reasonable
proposals for formal change when they became necessary. This undermines the plausibility of
originalism’s normative foundations. If everyone starts avoiding Article V out of concern for the
political stability of the republic, then it is reasonable to suppose it will not be used even when in
some sense it should be used . Recent historical scholarship has shown this argument to be more valid than I initially appreciated.
Michael Vorenberg demonstrates that in antebellum America the Constitution was so widely esteemed that the very idea
of amendment became suspect.78 Indeed, this belief hampered Republicans as they contemplated
abolishing slavery in the midst of the Civil War .79 Slavery was deeply entwined with the legal system in
ways not easy to unravel. As James Oakes describes, even the exigencies of war were inadequate to end
chattel slavery.80 Republicans came to realize only reluctantly that they would have to amend the
Constitution.81 Now suppose it is the case that the dominant attitude from the early republic onward was
that Article V should never be used, given the substantial risk of undermining the entire constitutional
experiment. What consequences follow? In my view, this is the best starting point for understanding the
cogency of “living constitutionalism .” Americans are not living constitutionalists because they
endorse government by judiciary , 82 want to make “amending constructions ,”83 or because they
are comfortable translating past values into present circumstances . 84 They use informal, nonArticle V
means to accomplish amendment-level constitutional changes out of felt necessity. 85 The perceived
dangers of Article V have plausibly pushed an enormous amount of change off-text.86 This creates the
problem of informal constitutional change – namely, how to understand the process of constitutional
change which results from everyone resolutely avoiding formal change as much as possible. 87

The aff ignores history and fails to grapple with the reason for the failures of
Reconstruction – the Radical Republicans wanted to protect the squo
Stephen M. Griffin ’20, Professor in Constitutional Law at Tulane Law School and author of American
Constitutionalism: From Theory to Politics and Long Wars and the Constitution, March 2020, “Optimistic
Originalism and the Reconstruction Amendments”, accessed at=”
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3558673” ”//ghs-ss
Under the influence of the ongoing debate between originalism and nonoriginalism, I suggest we
have lost our sense of what a
constitutional history of Reconstruction would look like. Consider, for example, that legal scholars rarely
discuss why Reconstruction failed African-Americans . 152 If it is mentioned, it is attributed to nonconstitutional factors.
153 The avoidance of Reconstruction’s failure goes double for optimistic originalists. They are convinced
that the nineteenth-century public meaning of the amendments is on their side . They see no
normative gap between Reconstruction and the meaning attributed to the Fourteenth Amendment in
famous twentieth-century Supreme Court cases such as Brown 154 and Frontiero v. Richardson. 155
Understanding why Reconstruction failed turns out to be relevant to evaluating the cogency of
optimistic originalism. But to do this, we must approach the question of failure from a legal and constitutional perspective, rather than
in political, social or economic terms. 156 Historical inquiry suggests that the failure of Reconstruction can be traced in part

to commitments by Republicans , both influential and ordinary, to retain certain elements of the
antebellum constitutional order . These commitments were deeply internal to American
constitutionalism, not external social and political factors. I identify and discuss four internal constitutional
limits: the doctrine of federalism or “states’ rights”; the preferred legal status of “independent” as
opposed to “dependent” citizens; the distinction between civil, political, and social rights; and the idea
of limited government. All are relevant to how constitutional meaning was determined with respect to
our leading questions of racial equality for African Americans and equal rights for women. All are well
documented in the historical literature on Reconstruction. 157 Yet they are missing from optimistic
originalism . This should prompt us to ask some hard questions about the relationship of public meaning
originalism to the historical circumstances of Reconstruction. How can an interpretive method
apparently well-grounded in the American constitutional tradition fail to recognize some of the most
enduring aspects of the nineteenth century constitutional order? 158

Framers’ intent doesn’t solve – interpreting intent via the text of an amendment alone
presents an incorrect picture of the true “meaning” of the amendment
Stephen M. Griffin ’20, Professor in Constitutional Law at Tulane Law School and author of American
Constitutionalism: From Theory to Politics and Long Wars and the Constitution, March 2020, “Optimistic
Originalism and the Reconstruction Amendments”, accessed at=”
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3558673” ”//ghs-ss

The intuition behind the

sequencing problem is that because public meaning originalism relies on a restricted
set of historical evidence, it cannot give proper weight to the undeniable reality that the
Reconstruction amendments were serial attempts to address a common set of issues arising out of the
Civil War. The moment each amendment becomes law, originalism stops time and takes an “objective” empirical sample
of the existing evidence. That sample is the “meaning” (communicative content)232 of the clause in question. By
contrast, historians who study the views of actual people remain insistent that legal meaning was
something of a moving target during Reconstruction. 233 This suggests the originalist sample may be
unrepresentative of the unrestricted “public” meaning of the provision. This can be illustrated by considering what a
restricted originalist sample would yield with respect to the question of the scope of each amendment when it became law. By contrast, a historical

approach consults the actual public – that is, the multiple perspectives of actual persons over time.
This is a better way to approximate the location of a moving target. The questions of the
constitutionality of slavery and Congress’s power over it were central to the debate over the nature of the Union in
the decades prior to the Civil War. This debate was surely one of the longest and most intricate in American history ,
although much of the specific cut and thrust is no longer familiar. 234 I will briefly describe a number of interpretive disputes with respect to slavery and its
extended aftermath. In each episode, it turns out we
cannot count on public meaning originalism to guide us reliably
toward an understanding of what legal views were at the time . Instead, we get a misleading account which
bypasses the substantial disagreements that are the background context for any sound understanding of
the Reconstruction amendments. Public meaning originalism appears to produce outlier views from a
historical perspective , views that can be understood as projections of an alternate reality had things
been different.
 1NC Radical Republicans Bad
They read history wrong- The Radical Republicans were racist opportunists
Michael Les Benedict 1974. Michael Les Benedict is assistant professor of history in Ohio State University

Preserving the Constitution: The Conservative Basis of Radical Reconstruction. The Journal of American
History, 61(1), 65-90. doi:10.2307/1918254 (Jun., 1974), pp. 65-90 Published by: Oxford University Press on behalf
of Organization of American Historians Stable URL: http://www.jstor.com/stable/1918254

In the 1950s and especially the 1960s, Reconstruction history underwent its own reconstruction. As twentieth-
century Americans became more and more aware of their own racial crisis, historians reassessed the racial crisis
which faced their ancestors, bringing to the profession and to the public a new appreciation of the problems
Americans faced in restoring national and state governments in which the personal and civil rights of black
Americans would be protected for the first time.' Historians have reevaluated the motives of the so-called
Radical Republicans, the character of Presi dent Andrew Johnson, and the very nature of the issues which
confronted Americans after the Civil War. But they have not yet reevaluated the constitutional framework within
which Reconstruction proceeded, despite the fact that, in Eric L. McKitrick's words, constitutional limitations
formed "an indispensable part of the framework within which men thought in the nineteenth century."2 Most recent
scholars have abandoned the prejudice. Conclusion of historians writing from the 1930s through 1950s-that
"For the Constitution itself . . . [Republicans] had little respect ."3 But except for a few tantalizing hints at
deeper understandings, historians writing in the 1960s either continued to give constitutional aspects of
Reconstruction slight attention or resurrected the less biased analyses first forwarded at the turn of the century by
William A. Dunning and John W. Burgess.4 The exceptions-brief dicta by McKitrick and William R. Brock and a
longer comment by constitutional historian Alfred H. Kelly-suggest a fundamental revision of our understanding of
the constitutional basis for Reconstruction. These three scholars, especially Kelly, suggest that Republicans
were fundamentally conservative in their attitudes toward the United States Constitution and the federal
system it delineated. Kelly argues that the Reconstruction program, so long believed by historians to have been a
radical departure from traditional constitutional forms, violative of the principles of American federalism, actually
was framed by constitutional conservatives who envisioned little real alteration in national-state
relations.5 McKitrick, Brock, and Kelly present insights of fundamental importance into the constitutional nature of
Reconstruction legislation, but they have not offered detailed analysis of the theoretical framework within which
Republicans developed their program. Such an analysis reveals the true conservatism of Negro suffrage
and may help explain why Reconstruction failed to achieve its goals and why so many Republicans
appeared so quickly to abandon the struggle after 1869. For, in fact, the evidence indi cates historians may
be mistaken when they refer to a retreat from Recon struction. The distaste of many Republicans for federal
intervention in the South was manifest in the Reconstruction program itself. Although they insisted on guarantees
for the security of loyal whites and blacks in the South and passed laws and constitutional amendments which
appeared to delegate power to the national government to secure citizens' rights, most Republicans never desired a
broad, permanent extension of national legislative power. Republicans framed the most limited,
conservative Reconstruction possible, adhering until 1868 to the position that their legislation was merely a
temporary aberration in the federal system. When continued violence in the South after 1868 forced many
Republicans to endorse some permanent broadening of national power-a constitutional position which was truly
radical-most Republicans tried to limit the degree of the expansion, and many others refused to make this new
departure at all. Nor is it accurate to charge that the courts in interpreting Reconstruction legislation betrayed the
principles and purposes of the Republicans who had framed it; rather they carried over to the judicial arena
Republicans' reluctance to alter fundamentally the federal system. Republicans understood the dangers
inherent in their first, conservative Reconstruction plan. Many of them feared that, without political
power, blacks might be victimized by restored governments in the hands of former rebels. Given the
political situation in spring 1866, however, Republicans felt they could not retain power if they presented
more extreme conditions for restoration.29 In an effort to minimize the danger, they passed two bills
which appeared to mark radical changes in the relations between the states and the national government.
The Freedmen's Bureau bill and the Civil Rights bill both seemed to place the rights of the newly freed
slaves under the protection of the na tional government. Yet,
even with the prospect of
restored, white, former rebel-dominated state governments facing them,
Republicans refused to offer blacks the permanent protection they realized
was needed. Offered by the conservative constitutionalist Lyman Trumbull, the Freedmen's Bureau
bill was avowedly a temporary measure, based primarily on Congress' war powers, a measure the
authority for which would cease soon after the south ern states were restored to the Union, the very time
the freedmen would need its protection most.30 Despite this conservatism, Republican Senate leader
Fessenden barely could bring himself to support the measure, acquiescing in its passage only after
personal discussions with Trumbull.31 The enfranchisement of black men in the southern states , then,
was the one measure which would provide security for the Union and its loyal southern supporters and
yet allow Reconstruction to continue on a conservative constitutional basis. "Far from desiring
centralization repulsive to the genius of this country, it is in the distinct interest of local self-govern ment
and legitimate State rights that we urge these propositions," wrote Schurz, "and nothing can be more
certain than that this is the only way in which a dangerous centralization of power in the hands of our
general government can be prevented.' '42 As the Nation pointed out, Negro suffrage "though brought
forward as a radical remedy . . . is anything but radical."43 Only as the Reconstruction process neared
completion did many Repub licans finally realize its essential weakness. As southerners met Congress'
conditions and pressed for restoration in 1868, Republicans suspected that their compliance with the
Reconstruction acts was more apparent than real. "You are hastening back States where rebelism is
pervaiding them from end to end," complained an outspoken Radical.44 But Republicans went even
further than this in protecting state jurisdic tion. Over
Radical objections, they refused to
broaden the forbidden areas of suffrage regulation to include property or
literacy requirements, and they refused also to forbid discrimination in
officeholding requirements. By now, the more radical Republicans had become aware of the
limitations Republican constitutional conservatism had set on Republican Reconstruc tion policy, but they
were unable to overcome conservatives' constitutional scruples. The Fifteenth Amendment, so easily and
so long circumvented by southern state governments, was the culmination of state-protecting Republican
Reconstruction policy-in the words of a disenchanted southern Re publican Senator, "the Dead Sea fruit
which we are to gather from the plantings of a hundred years.. "53

The Radical Republicans weren’t radical at all- the Reconstruction did not do enough
for the southern black people
Kolchin, Peter 1975 The Myth of Radical Reconstruction.” Reviews in American History, vol.
3, no. 2, , pp. 228–236. JSTOR, www.jstor.org/stable/2701227.

Reconstruction as a successful effort to consolidate the newly won political power of northern capitalists.
This interpretation crumbled as revisionists demonstrated that radical Republicans, conservative Republi
cans, and businessmen were all divided among themselves on the impor tant economic issues of the era
and that businessmen were more likely to oppose than to support radical policies. A second casualty was
the idea of the radicals as a self-serving, partisan group of conspirators who through skill, determination,
and organization waged an unending and eventually successful struggle against the moderate policies of
presidents Lincoln and Johnson. Scholars showed that Lincoln was not in a state of perpetual war with the
radicals, that Thaddeus Stevens did not exercise dictatorial powers over the House of Representatives,
that Johnson's recalcitrance drove a reluctant Congress to break with his policies, and that basic
Reconstruction measures won the votes of almost all Republican congressmen. Historians also reversed
the moral judgments of a previous generation. Despite differences among them, most revisionists saw the
radicals not as evil fanatics but as idealistic reformers concerned for the rights of all Americans. Some
historians even began to question whether such a thing as radical Reconstruction ever occurred, arguing
either that Reconstruction measures did not go far enough in remaking the South-and hence were not
really radical-or that radical Republicans were never really in charge of Reconstruction at all. Rarely have
historical interpretations changed as quickly and completely as those of Reconstruction; by the early
1970s the conventional wisdom on the subject was in many ways diametrically opposed to that of two
decades earlier. Michael Les Benedict's A Compromise of Principle appears to be the culmination of this
revisionist onslaught. It builds upon the work of re cent historians, incorporating much of it but at times
pushing their con clusions a good deal further. He clearly shares their favorable assessment of the radicals
and their judgment that not enough was done to help southern blacks. More important, he agrees that
Reconstruction was not especially radical; indeed, this book's central theme is "that radicals never
controlled the process of Reconstruction, that moderates and conservatives dominated the institutional
mechanisms of Congress" (p. 14). Because these moderates and conservatives shared basic radical goals,
but were excessively timid in pursuing them, the Reconstruction policy that Congress eventually adopted
represented, as the title of this book suggests, "a compromise of principle."