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To Consult or Not to Consult: On the Theoretical Legitimacy of the Consultation Counterplan

To Consult or Not to Consult: On the Theoretical Legitimacy of the Consultation Counterplan

Ryan Galloway is the Director of Debate at Samford University. One of the most well respected coaches and judges in the country, Galloway won the 2013 Ziegemueller coach of the year award at the National Debate Tournament. He has also judged the final round of the NDT a record eight times and was named the third best judge of the 2000-2010 decade. He has coached several NDT qualifiers, and has coached teams to the deep elimination rounds of every major tournament in the country, including CEDA Nationals and the NSDR. As a debater, he received two first round bids to the NDT, and won numerous top speaker awards, including at the University of Kentucky and ADA Nationals.

Early files from various camps around the country indicate that the consultation counterplan will be a significant issue on this year’s high school debate topic. Fears that the topic could be too large have led some to consider that in order for the negative to keep up with country specific and weapon specific affirmatives, arguments like the consultation counterplan will be necessary for the negative. This essay will argue against the theoretical legitimacy of the consultation counterplan. I will begin by discussing how the consultation counterplan functions, then discussing the competition problems with the consultation counterplan, and finally discuss theoretical arguments against the legitimacy of the counterplan as a whole.

How the Consult Counterplan Works

The consultation counterplan has been a long time favorite of the negative, and there are several nuances as to how the counterplan functions. To discuss answering the counterplan, an illustration of how the counterplan operates in debates is first necessary.

The Text of the Counterplan

The first component is the text of the consultation counterplan. Assume the affirmative plan is:

The United States federal government should substantially reduce its Direct Commercial Sales and Foreign Military Sales of arms to the Republic of China.

The Japan consultation counterplan would read:

The United States federal government should engage in prior, binding consultation with the government of Japan as to whether the United States federal government should substantially reduce its Direct Commercial Sales and Foreign Military Sales of arms to the Republic of China. The United States federal government will implement the results of the consultation.

To break down the counterplan, we need to discuss its various elements. The first element of the counterplan is that the consultation is prior to the adoption of the affirmative plan. The negative will argue that while the affirmative plan must be adopted immediately, the counterplan engages in consultation prior to the adoption of the affirmative plan, meaning the counterplan’s mandate of the plan action does not happen right away. The negative will usually rely upon definitions of “should” meaning “immediate” to argue that the affirmative plan must be immediately adopted, while the counterplan can be a phased in approach to the affirmative plan. The negative will argue that if the consultation is not prior to the adoption of the affirmative plan that the consultation is not genuine, and thus will not accrue the benefit of consultation.

The second component of the counterplan is that the consultation will be binding. Sometimes the text will add that Japan has “veto power” over the affirmative plan. The negative will argue that the affirmative must unconditionally fiat the affirmative plan, usually relying on definitions of “Resolved” that mean with certainty. Thus, the affirmative must have guaranteed implementation of the plan, while the negative does not guarantee the implementation of the affirmative plan. Hence, the counterplan functionally competes with the affirmative plan because the affirmative plan guarantees adoption of the reduction of arms sales to the Republic of China, while the counterplan does not guarantee such a reduction.

The Solvency of the Counterplan

                  The consultation counterplan has a couple of tricks that are dependent on whether the counterplan solves the affirmative case. Usually, the negative team wants the target country or organization (usually Japan or NATO), to say yes to the consultation, resulting in adoption of the affirmative plan. The negative then guarantees that the counterplan solves 100% of the case, and all the counterplan needs is a tiny net benefit to win the debate. The negative team will usually have solvency evidence that the target country either supports arms reductions to the country in question, generally opposes arms sales, or generally would do what the United States wanted if we engaged in prior, binding consultation. Thus, the counterplan solves the case, and all that is left is to win a net benefit.

The other trick is to concede that the target country says no to the plan. It is usually strategic for the affirmative team to argue that the target country will say no to the plan, to prove that the counterplan does not solve the case. The negative team could concede this argument, and argue that the plan is wildly unpopular with the target country. This provides a strong link to the net benefit of relations with the target country.

Either way, the negative wins. The negative either gets complete solvency for the affirmative case, or gets a strong link to a disadvantage to the affirmative. The mere presentation of the counterplan in the debate presents the affirmative with a significant conundrum—either one concedes that the counterplan solves all the aff, or has to concede the link to a massive disruption in relations with the target country. One can begin to see why the counterplan is so powerful—it provides strong strategic advantages to the negative at almost no cost.

The Net Benefit to the Counterplan

The final part of the consultation counterplan is the net benefit. The net benefit is usually a super-charged version of relations with the target country. The negative will argue that relations with the target country are not on a secure foundation, and that only prior, binding consultation over some issue will allow for the future of the alliance. They may argue that the alliance needs to modernize, that Trump puts relations in a question of doubt, or just that giving the other nation veto power over actions of the United States is important for the future of the alliance. The negative will then read a huge impact to the alliance, and may even argue that the alliance is necessary to solve for the harms of the affirmative. Thus, the negative presents a counterplan that solves all of the case with a net benefit of alliance relations. This strategy is tried and true, one that has won thousands of debates all across the country. Without a strong attack against the counterplan, the affirmative will be in deep trouble.

Now that we understand how the counterplan functions, this essay will move into the theoretical problems with the counterplan. First, the essay will discuss the problems with the competition of the counterplan, and then discuss the legitimacy of the counterplan itself. Substantive attacks on the counterplan are outside the scope of this article.

Competition Problems with the Consultation Counterplan

A fundamental question with the consultation counterplan is whether the affirmative plan should be required to act with immediacy and certainty. If the affirmative must implement all of its mandates right now, and with no modifications, then the counterplan competes. After all, the counterplan delays the plan until after consultation takes place (it is not immediate), and the counterplan does not guarantee that the mandates of the affirmative plan take place (it is not certain). This essay will now break down those components.

Immediacy

                  The first component of the competition of the counterplan is the question of immediacy. Should the affirmative plan be required to be immediate?

At face value, this seems like a somewhat strange requirement. The modern day conceptualization of fiat is one that usually requires that the president spend political capital to guarantee passage of the plan. This takes time. Furthermore, just the process of passing the bill and getting the president’s signature would seem to take time. But, the negative asks that the affirmative plan be implemented immediately, and usually relies upon some definitional support and debate theory to try to lock the affirmative into immediate implementation of the plan.

The first thing the negative will usually do is to define that should means immediate. This bizarre interpretation of the word should stems from the case of Kelsey v. Dollarsaver Food Warehouse of Durant in the Supreme Court of Oklahoma. The card usually reads something like this:

Should Means Immediate:

Summers, 1994 (Kelsey v. Dollarsaver Food Warehouse of Durant, https://law.justia.com/cases/oklahoma /supreme-court/1994/20287.html)

Certain contexts mandate a construction of the term “should” as more than merely indicating preference or desirability. Brown, supra at 1080-81 (jury instructions stating that jurors “should” reduce the amount of damages in proportion to the amount of contributory negligence of the plaintiff was held to imply an obligation and to be more than advisory); Carrigan v. California Horse Racing Board, 60 Wash. App. 79, 802 P.2d 813 (1990) (one of the Rules of Appellate Procedure requiring that a party “should devote a section of the brief to the request for the fee or expenses” was interpreted to mean that a party is under an obligation to include the requested segment); State v. Rack, 318 S.W.2d 211, 215 (Mo. 1958) (“should” would mean the same as “shall” or “must” when used in an instruction to the jury which tells the triers they “should disregard false testimony”). 14 In praesenti means literally “at the present time.” BLACK’S LAW DICTIONARY 792 (6th Ed. 1990). In legal parlance the phrase denotes that which in law is presently or immediately effective, as opposed to something that will or would become effective in the future [in futurol]. See Van Wyck v. Knevals, 106 U.S. 360, 365, 1 S.Ct. 336, 337, 27 L.Ed. 201 (1882).

There are so many problems with this definition of should as applied to the implementation of affirmative plans it is almost difficult to know where to begin. First, this is an esoteric case. The context of the case is that the defendant at the lower court level said, “Your Honor, at this point, I should move for a mistrial” (Summers, 1994, emphasis added). The case was about whether a new trial and motion for judgment should be granted in a civil case.

The notion that the application of the word should in a case about mistrials in civil cases to the arms sales resolution seems forced at best.

Second, Justice Summers qualifies the definition by saying, “Certain contexts mandate a construction of the term ‘should’ as more than merely indicating preference or desirability” (Summers, 1994, emphasis added). It is somewhat obvious that the context of this definition has nothing to do with debate. It refers to a unique and esoteric situation that is not transferable.

Further, the definition denies the common use of the term. Saying, “I should go to church” does not mean that I should get up from my laptop, drive to the church, and start worshipping. Saying, “I should exercise” does not mean I should drop everything and start lifting weights. It is difficult to find a context where one would use the word should to mean immediately.

The real hope is that the affirmative team will drop the definition in the laundry list of definitions the negative will read in the block. When exposed to scrutiny, this definition quickly falls apart. A simple counter-definition of should illustrates how the term does not force one to take an immediate action:

Should doesn’t mean immediate

Dictionary.com, 2019 http://dictionary.reference.com/browse/should

should [ shoo d ]SHOW IPA SYNONYMS|WORD ORIGIN SEE MORE SYNONYMS FOR should ON THESAURUS.COM auxiliary verb simple past tense of shall. (used to express condition): Were he to arrive, I should be pleased. must; ought (used to indicate duty, propriety, or expediency): You should not do that. would (used to make a statement less direct or blunt): I should think you would apologize. RELATED CONTENT 11 Classic Cocktails Everyone Should Know Need a break? Yeah, so do we. Now seems like a great time for a happy hour, doesn’t it? Let’s have a cocktail (or 11). READ MORE Baseball Slang True Fans Should Know The game dates back a long way (the first pro team started in 1869—the Cincinnati Reds) so there’s a long history here. READ MORE RELATED WORDS enjoy, undergo, consider, feel, experience, leave, see, know, allow, permit, need, become, suffer, will, let, tolerate, sustain, entertain, must, shall NEARBY WORDS shotten, shotting, shottsuru, shotwell, shotwell, james thomson, should, should have stood in bed, i, shoulder, shoulder bag, shoulder blade, shoulder board ORIGIN OF SHOULD Middle English sholde, Old English sc(e)olde; see shall SYNONYMS FOR SHOULD 3See must1. SEE MORE SYNONYMS FOR should ON THESAURUS.COM CAN BE CONFUSED could should would (see usage note at the current entry) USAGE NOTE Rules similar to those for choosing between shall and will have long been advanced for should and would, but again the rules have had little effect on usage. In most constructions, would is the auxiliary chosen regardless of the person of the subject: If our allies would support the move, we would abandon any claim to sovereignty. You would be surprised at the complexity of the directions. Because the main function of should in modern American English is to express duty, necessity, etc. ( You should get your flu shot before winter comes ), its use for other purposes, as to form a subjunctive, can produce ambiguity, at least initially: I should get my flu shot if I were you. Furthermore, should seems an affectation to many Americans when used in certain constructions quite common in British English: Had I been informed, I should (American would ) have called immediately. I should (American would ) really prefer a different arrangement. As with shall and will, most educated native speakers of American English do not follow the textbook rule in making a choice between should and would. See also shall. DEFINITION FOR SHOULD (2 OF 2) shall[ shal; unstressed shuh l ]SHOW IPA auxiliary verb, present singular 1st person shall, 2nd shall or (Archaic) shalt, 3rd shall, present plural shall; past singular 1st person should, 2nd should or (Archaic) shouldst or should·est, 3rd should, past plural should; imperative, infinitive, and participles lacking. plan to, intend to, or expect to: I shall go later.

In addition to the common sense definitions of should allowing for non-immediate action, there are theoretical reasons why the word should does not mean immediate. Forcing the affirmative to be immediate guarantees the competition of the delay counterplan. If the resolution requires that the affirmative plan be immediately implemented, then the negative can simply delay the plan until after some event. Perhaps the plan can be delayed until some contentious vote takes place in the Senate. Perhaps the plan can be delayed until after the midterm elections. One can see how it would be easy for the negative to contrive some net benefit to delaying the plan by a few days or a few months, whereas the affirmative will have difficulty arguing that the plan must be done right now.

In addition to the fairness reasons for disallowing the delay counterplan, there are educational reasons. If the negative could win merely by delaying the plan by a few weeks, there is little incentive for the negative to research the specific affirmative case and plan. The primary purpose of the topic committee choosing to debate arms sales is the perceived educational benefits of the question of arms sales in general, and the Trump administration’s policies toward arms sales. The contemporary questions of the arms sales to Saudi Arabia, the long-standing policy of the United States arming Taiwan, and the recent arming of Ukraine seem to all be relevant concerns. However, if one can just delay the plan by a few months, one never has to research such questions to win debate rounds. The negative will solve 100% of the affirmative case by coming up with a contrived net benefit based on ephemeral political situations.

Debate should incentivize research-based education. One thing that makes debate unique is how competition incentivizes debaters to learn in-depth about matters of contemporary controversy. If the negative can recycle the same argument year after year and to any affirmative, then the educational benefits of debate are moot. The notion that the immediacy of the affirmative plan should be the primary point of contention is difficult to swallow.

The implication of the affirmative plan not needing to be immediate is that counterplans that compete by delaying the plan are not competitive. The affirmative ought to be able to permute counterplans which delay the action of the affirmative plan. Thus, the delay counterplan mentioned above should not compete. The affirmative ought to be able to argue: “Permute: do the counterplan.”

Similarly, the delay portion of the consultation counterplan should not compete. The affirmative ought to be able to implement its plan until after the process of consultation with a relevant ally is complete. If the affirmative cannot theoretically delay the adoption of the affirmative plan in response to a counterplan that delays the affirmative plan, then all manner of delay, consult, and condition counterplans compete. There will be little incentive to debate the affirmative on the merits, and the educational benefits of choosing a specific topic like arms sales to debate are lost.

Sometimes, the negative will merely argue that the affirmative should be forced to implement its plan immediately for disadvantage purposes. For example, politics disadvantages link because the affirmative plan needs to be implemented in the present environment. Sometimes relations disadvantages, spending disadvantages, etc. rely upon implementing the plan in the current environment.

This interpretation confuses the notion of plan implementation with the implementation of a permutation to the counterplan. What the negative is really arguing is that fiat means the plan should be implemented immediately. Indeed, this is a good default assumption. It allows the negative to link politics disadvantages and relations disadvantages based on the present political environment.

However, merely because one has a default assumption for plan implementation does not lock a permutation to a counterplan to being forced to be immediate. The negative has introduced a counterplan that changes the default assumption that fiat is not immediate. The fact that the affirmative agrees with the negative that fiat need not be immediate because the negative has changed the rules of fiat does not mean the affirmative should be locked into the definition for permutations.

If affirmative fiat and negative fiat were fundamentally different, i.e. the affirmative was locked into all of the presently existing assumptions of fiat and the negative was not, then all manner of “normal means” counterplans would compete. For example, the negative could argue that the affirmative should be forced to implement the plan through a particular agency. Then, the negative could counterplan to change the head of that agency or change something fundamental to the nature of the agency that makes it bad. The negative could contrive a simple net benefit, and win by doing the plan every debate. Again, negatives would have no incentive to research specific cases and plans, they would just come up with an infinite variety of ways to tinker with the process of the plan.

A simple illustration shows why these counterplans do not logically compete with the affirmative. For some context, my squad room is in Brooks Hall with a soda machine that frequently steals your money. If the affirmative plan was, “Buy a soda in Brooks Hall” then the disadvantage of “the machine will probably steal your money” applies to the plan because the only soda machine in Brooks Hall is broken.

However, if the negative chooses to counterplan to “Install a new soda machine in Brooks Hall and buy a soda from that machine,” there is nothing intrinsic to the plan that requires the soda is bought from the broken machine. The plan merely said, “Buy a soda in Brooks Hall.” If the context of Brooks Hall was there is only a broken machine in Brooks Hall, then the plan has to buy a soda from the broken machine. However, if the negative chooses to change the world of normal means, then the counterplan no longer competes. The affirmative could say, “permute: Buy a soda from the new machine in Brooks Hall.” The entirety of the plan (Buy a soda in Brooks Hall) is both functionally and textually contained within the permutation, so the permutation is neither severance nor intrinsic. The affirmative can simply take its action of buying a soda from the new machine.

As a simple aside, if the negative writes the word “should” in their counterplan text and argues that should means immediate, then the counterplan is forced to be implemented immediately, meaning consultation about the counterplan is not allowed. This might create a good little 1ar conundrum for the counterplan that is written lazily.

Thus, the affirmative should not be forced to implement its plan immediately when the negative chooses to counterplan in a non-immediate way. While immediacy is a good default assumption for affirmative plans, it is just a default; it is not something that the affirmative is held to if the negative changes the way fiat normally operates.

Certainty

The next means of competition for the consultation counterplan is the question of certainty, or the argument that the plan must be adopted no matter what. Given that the counterplan does not guarantee the enactment of the plan, merely the result of the consultation, the negative will argue that there is not a guarantee of plan action, making the counterplan compete. The negative thus argues that the affirmative must be a guarantee of the exact mandates of the plan occurring, no matter the circumstances.

The negative usually relies upon three terms to argue that the affirmative plan must be done with certainty, or unconditionally. The first is to rely upon definitions of Resolved in the resolution that resolved means with certainty. A definition like this one is traditionally used—

Resolved means with certainty:

Dictionary.com, 2019 (https://www.dictionary.com/browse/resolved)

resolved[ ri-zolvd ]SHOW IPA SYNONYMS|EXAMPLES|WORD ORIGIN SEE MORE SYNONYMS FOR resolved ON THESAURUS.COM adjective firm in purpose or intent; determined.

Thus, if the affirmative does not stand behind the merits of the plan with certainty, they are not resolved. Given that the consult counterplan does not stand resolutely behind the action of the plan, the consultation counterplan is not resolved.

The next term in the resolution used is should. A definition like the one below is usually used to mean that should requires that the plan must be done, no matter the circumstances:

Should means must:

Nieto 2009 – Judge Henry Nieto, Colorado Court of Appeals, 8-20-2009 People v. Munoz, 240 P.3d 311 (Colo. Ct. App. 2009, https://caselaw.findlaw.com/co-court-of-appeals/1385406.html)

“Should” is “used . . . to express duty, obligation, propriety, or expediency.” Webster’s Third New International Dictionary 2104 (2002). Courts [**15] interpreting the word in various contexts have drawn conflicting conclusions, although the weight of authority appears to favor interpreting “should” in an imperative, obligatory sense. HN7A number of courts, confronted with the question of whether using the word “should” in jury instructions conforms with the Fifth and Sixth Amendment protections governing the reasonable doubt standard, have upheld instructions using the word. In the courts of other states in which a defendant has argued that the word “should” in the reasonable doubt instruction does not sufficiently inform the jury that it is bound to find the defendant not guilty if insufficient proof is submitted at trial, the courts have squarely rejected the argument. They reasoned that the word “conveys a sense of duty and obligation and could not be misunderstood by a jury.” See State v. McCloud, 257 Kan. 1, 891 P.2d 324, 335 (Kan. 1995); see also Tyson v. State, 217 Ga. App. 428, 457 S.E.2d 690, 691-92 (Ga. Ct. App. 1995) (finding argument that “should” is directional but not instructional to be without merit); Commonwealth v. Hammond, 350 Pa. Super. 477, 504 A.2d 940, 941-42 (Pa. Super. Ct. 1986). Notably, courts interpreting the word “should” in other types of jury instructions [**16] have also found that the word conveys to the jury a sense of duty or obligation and not discretion. In Little v. State, 261 Ark. 859, 554 S.W.2d 312, 324 (Ark. 1977), the Arkansas Supreme Court interpreted the word “should” in an instruction on circumstantial evidence as synonymous with the word “must” and rejected the defendant’s argument that the jury may have been misled by the court’s use of the word in the instruction. Similarly, the Missouri Supreme Court rejected a defendant’s argument that the court erred by not using the word “should” in an instruction on witness credibility which used the word “must” because the two words have the same meaning. State v. Rack, 318 S.W.2d 211, 215 (Mo. 1958).   [*318] In applying a child support statute, the Arizona Court of Appeals concluded that a legislature’s or commission’s use of the word “should” is meant to convey duty or obligation. McNutt v. McNutt, 203 Ariz. 28, 49 P.3d 300, 306 (Ariz. Ct. App. 2002) (finding a statute stating that child support expenditures “should” be allocated for the purpose of parents’ federal tax exemption to be mandatory).

Because the plan action is not guaranteed to happen, and only happens if the ally agrees to the consultation, the counterplan competes with the word should, which means that the plan action must be guaranteed to happen.

The final term in the resolution is substantially. A rather unusual definition of the word substantially is used that means “without material qualification.” A definition like the following is used:

Substantially means “without qualification”

Keith T. Smith & Shawn H.T. Denstedt, 1992 (Bennett Jones Verchere, Calgary), ALBERTA LAW REVIEW, 1992. Retrieved from HeinOnline, May 15, 2018.

Black’s Law Dictionary defines “substantially” to mean: Essentially; without material qualification; in the main; in substance; materially; in a substantial manner. About, actually, competently, and essentially.

Because the counterplan adopts a qualification on the plan’s adoption, i.e. it is only adopted if the ally says yes to the consultation process, the counterplan contains a qualification, and is therefore competitive with the plan.

I will now take on these definitions one by one. The definitions of Resolved ignore the context of resolved, which is the precursor to a policy statement. Resolved is not intended to have meaning beyond being the beginning of a policy statement. A definition like the following can be used:

Pennsylvania Academy of Family Physicians, 2018

https://www.pafp.com/Pages/Content.aspx?id=170

Every resolution must have a title, “whereas” clause(s) and “resolved” clause(s) and carry the author’s name(s). The title should be clear and concise and convey the general idea of the topic of the resolution. The “whereas” clauses should explain the rationale for the resolution — identify a problem or need for action, address its timeliness or urgency, its effects on residents, medical students, AAFP and/or the public at large and indicate whether the proposed policy or action will alter current AAFP policy. The “resolved” clause(s) are the meat of the resolution. These clauses should be clear and concise and positively state the action or policy called for by the resolution.

Resolved is in every resolution since the beginning of policy debate. It is merely the precursor to the resolution and designed to introduce it. It does not contain any independent meaning other than stating the action in the resolution.

With regard to should, understanding the context of the word should as compared to other terms is helpful. Should is a weaker form of obligations like the word shall or must. Should can be understood as a conditional phrase like a recommendation. A definition like this can be used for the affirmative:

Mulligan 18 —- Stephen P., legislative attorney for the Congressional Research Service, J.D. (Loyola University Chicago School of Law), “Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement,” 5/4, R44761, https://fas.org/sgp/crs/row/R44761.pdf

Whether a U.N. Security Council resolution imposes legal obligations on U.N. Member States depends on the nature of the provisions in the resolution.188 As a matter of international law, many observers189 agree that “decisions” of the Security Council are generally binding pursuant to Article 25 of the U.N. Charter,190 but the Security Council’s “recommendations,” in most cases, lack binding force.191 Whether a provision is understood as a nonbinding “recommendation” or a binding “decision” frequently depends on the precise language in the resolution.192 Commentators have noted that the Security Council’s use of certain affirmative language, such as “shall” as opposed to “should,” or “demand” as opposed to “recommend,” may indicate that a resolution is intended to establish legally binding duties upon U.N. Member States.193

The resolution could have said shall or must. Instead, the resolution says should. As will be further illustrated later in the article, should can be defined as a phrase meaning most of the time, but not always. Therefore, the affirmative is stating that in most instances, the affirmative plan ought to be done. An example is helpful.

The statement “I should go to the store” does not mean I must go to the store under all circumstances. I should go to the store does not mean I have to go to the store even if the road is blocked off and landmines surround the store. I should go to the store is a general statement which means, on balance, I ought to go to the store.

As a final thought on the word should, if the counterplan text contains the word should then the negative is in a double bind. Either the word should means must, and the action of the counterplan must be taken no matter what, or the word should does not mean a guarantee, and the affirmative need not be a guarantee either.

The final term to discuss is substantially. Here it would be best to use any of the quantitative definitions of substantially that your plan meets. A definition like the following will suffice for our purposes:

Substantial means of considerable importance:

THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, 2006 4th Edition, 1727. Substantial: Considerable in importance, value, degree, amount, or extent: won by a substantial margin.

It is an odd definition of substantially to mean without material qualification. My understanding of the definition is that material qualification is a term in contract law referring to whether or not a buyer is forced to pay for a partially constructed building or home. It certainly is not designed to mean that plans which decrease arms sales must be done no matter what the circumstances are.

Aside from the specific definitions, requiring that the affirmative plan be done with certainty makes all manner of consultation and conditions counterplans compete. Any circumstance that the negative can come up with as to why the plan should not be a guarantee becomes competitive with the affirmative. Counterplans like “do the plan, unless a nuclear war has devastated the Earth” or “do the plan, as long as the government of Saudi Arabia still exists” become competitive policy options with the affirmative plan. More time is spent trying to come up with when to not do the plan as opposed to debating the relative merits of the affirmative plan. One thing that debate has taught me over my thirty-two years of experience in the activity is that there are a lot of conditions and consultations that can take place over plans. We should not focus our energy and attention on finding a strange esoteric circumstance where the plan should not be done. We should instead be focusing our energy and research on whether the plan should be done.

Permutations to the Consultation Counterplan

The preceding discussion of the competition of the consultation counterplan leads to a discussion of the possible permutations to the consultation counterplan. I would argue for three permutations to the counterplan.

The first permutation is to permute: do the counterplan. While old school theorists would argue that this is a competition argument and not truly a permutation, the point remains that the counterplan is not a reason to reject the affirmative plan. I recommend that the affirmative define the word should as a means to permute the counterplan. While the prior definition of should could function, another definition distinguishing should from shall is helpful. This definition discussing the difference between should, must, and have to is helpful to illustrate that should does not require that something be done in all circumstances:

Shahul Hameed Mohammad, 2016 (Human Resources Generalist, https://specialties.bayt.com/ar/specialtie s/q/277172/what-is-the-difference-between-should-and-must-and-have-to-how-to-explain-using-context-clues-examples-to-understand/)

What is the difference between should and must and have to? How to explain using context clues (examples) to understand? رسائل العروض تدريس اللغة الإنجليزية اللغة الإنجليزية قواعد اللغة الإنجليزية الكتابة باللغة الإنجليزية تم إضافة السؤال من قبل Shahul Hameed Mohammad , Human Resources Generalist (HR Generalist) , S A CO تاريخ النشر: 2016/03/30 التصويت كمفيد (1) المشاهدات (231) المتابعون (7) أضف إجابة أنشئ حسابًا أو سجّل الدخول للإجابة 9 الإجابات Jennyfer Dominguez تم إضافة الإجابة من قبل Jennyfer Dominguez, Business Development Assistant , ExpressMed Supplies قبل 3 سنوات Should is weaker; it’s used in advice. – Expected Result/Probability/Predictions/supposition Must is stronger; it’s used in orders. – Requirement/Strong Obligation/necessity/compulsion Have to is a modal almost like, of must He doesn’t have to leave. ≠ He must not leave. The first one means he has no obligation to leave, but the second means he has an obligation not to leave التصويت كمفيد (2) التصويت سلباً(0) الإجابات (0) Pradeep Sharma تم إضافة الإجابة من قبل Pradeep Sharma, English Language Training Instructor , King Abdul Aziz University, Jeddah (KSA) قبل 3 سنوات All the three are used to express ‘obligation’ but with different shades of meaning. ‘Should’ is used to mean “suggestion” and the action is left to the discretion of the person, meaning if the action is performed, it is good. 1. You should take regular exercises. It also means probability. 2. It’s an off day today. George should be at home. If it begins a sentence, ‘should’ refers a condition (meaning ‘if’) 3. Should you be late, give me a ring. ‘Must‘ is used to express compulsion, meaning it is the only choice. 4. You must take regular exercises because you’re putting on weight. It is also used to express probability bordering on sureness. 5. It is an off day today. George must be at home. Has to/have to are used to express compulsion arising out of force. There’s no choice given. 6. I have to finish the work today. The deadline is approaching. 7. He has to leave right now! التصويت كمفيد (1)

The resolution does not say must or have to, it says should. Should leaves discretion up to the individual, meaning the action is good, but not that it has to be taken up in all circumstances. This definition ideally fits the consultation counterplan. The affirmative argues that their idea is a good one under the circumstances that it is performed after prior, binding consultation. The affirmative always argues that the plan should be done, that it is a good idea. It does not suggest that the plan is the optimal plan under all circumstances. Because the counterplan does not exclude any part of the affirmative, this permutation is legitimate.

Thus, the affirmative is arguing for a qualified yes to the plan, and not a guarantee. Hence, the affirmative can argue that the counterplan is not really a reason to reject the plan, merely a conditional way of advocating for the plan.

One argument I have heard lodged against the should permutation is that this interpretation of the word should eliminates the possibility that disadvantages could negate the affirmative plan. After all, if there is a world in which the affirmative plan does not trigger the politics disadvantage, for example, then the affirmative should still be done under this interpretation of the word should.

This argument conflates possibilities with probabilities. While in the world of the counterplan there is the possibility that the plan will not be done, in the world of the disadvantage, there is always a probability of the disadvantage happening. Saying there is a forty percent probability of the politics disadvantage occurring as a result of the plan does not mean that in sixty percent of possible worlds, the disadvantage does not happen. It says that in all worlds in which the plan happens, there is a forty percent probability that the disadvantage will happen. In all worlds of plan implementation, a forty percent probability of the politics disadvantage outweighs a thirty percent probability of the plan’s advantage.

The next permutation the affirmative should argue for is to “do both” or do the guaranteed action of the plan after the consultation process. If the affirmative can win that the plan action does not have to happen immediately (see the above for advice on how to do this), then they can argue that the consultation process will result in the plan. The negative has already read evidence that the country will say yes in response to the consultation, so the end result of the two actions is the same.

The negative usually responds to this as if it is a “lie permutation” with a couple of responses. The first is that the disingenuous nature of the permutation will “leak” to the other nation, poisoning relations. The second is that lying is bad, and uses a Kantian decision rule to respond to this action.

However, the permutation is not really a lie permutation. It is a theoretical objection to the counterplan on the grounds that it is not really a reason to reject the plan. No one is implementing both halves of the permutation simultaneously. The permutation merely argues, that in an ideal world, the consultation can take place and then the affirmative plan should be done. This is the same position the negative is arguing, if they are arguing that the target nation will say yes to the consultation process. It is a logical argument, not a process whereby the United States manipulates the actor from the beginning, lying to them about whether the consultation process is genuine. The permutation illustrates that the counterplan is not a reason to reject the affirmative plan, it does not intentionally lie to the nation with whom the consultation process is initiated.

Finally, and I give credit to Margaret Strong from Michigan State University for teaching me this one, is to “permute: do the plan and consult on another issue.” At first, one would cry foul because the permutation is an intrinsicness permutation—the “other issue” is contained in neither the plan nor the counterplan text. However, this permutation operates to prove that the counterplan’s net benefit is not really a disadvantage to the plan, but rather an advantage to the counterplan. The counterplan argues that beginning a process of prior, binding consultation is important to the alliance. The counterplan does not argue that the process of consultation has to be about the affirmative plan—the negative just has evidence that beginning a process of prior, binding consultation on any issue is important to the alliance. To test whether this net benefit has anything to do with the action of the plan, one permutes the counterplan on another issue. If the negative can illustrate that consultation on the issue of the plan is related to their net benefit, then the action is an opportunity cost to the plan. However, if the plan is irrelevant to the net benefit, this net benefit is not truly an opportunity cost to the plan. A brief theoretical discussion as to why counterplans must be a rejection of the plan and not merely an advantage to the counterplan is in order.

If negatives could win debates by having an advantage to the counterplan that was unrelated to the affirmative, they would win almost every debate. Indeed, this logic is the reason why permutations to counterplans were first argued. If the negative could merely counterplan to feed the world or engage in world disarmament, the negative could almost always come up with some extraneous action that had a bigger advantage than the plan. The affirmative is stuck with resolutional action, but the negative can do whatever they want—thus they are easily able to come up with a counterplan which has an advantage larger than the plan.

However, this extra advantage is not a reason to reject the plan, and one can illustrate this with the permutation to do the plan and then feed the world or engage in world disarmament. This logic is the reason why permutations do not have to be topical, they are merely a test of the competition of the counterplan.

Similar logic applies to this permutation. This permutation is a test of the link of the net benefit to the affirmative plan. Is the link really off of “not consulting” about the affirmative plan or is the link off of “needing to consult” on some issue? If the negative is arguing we need to consult on some issue, then this is not really a reason to reject the plan. The negative has not “negated” the plan, they have just offered an alternative plan that is superior to the affirmative plan. Thus, the negative has failed in their burden to reject the affirmative plan.

Another way to argue this is to borrow a term that has fallen out of style, that the counterplan is artificially competitive. The net benefit does not really stem from the negation of the affirmative plan, but the affirmation of the counterplan. Most counterplans have a net benefit designed to reject the affirmative plan. We should not do the plan, we should instead do the counterplan. Take an affirmative case that had US-China relations as an advantage to banning arms sales to Taiwan. The negative could argue for a counterplan that solved for US-China relations without banning arms sales to Taiwan. For example, the negative could argue for a counterplan that eliminated all tariffs on China, thus ending the trade war, and arguing that this would provide a massive boost in US-Chinese relations. The negative would then offer a net benefit in terms of a disadvantage to banning arms sales to Taiwan, like an assurances disadvantage that would argue that Taiwan and other allies would build nuclear weapons because they did not feel protected by the United States any more. This counterplan would be a reason to reject the plan, because the net benefit would call for negation of the action of the plan of the affirmative. The affirmative should be rejected, and the counterplan should be preferred.

This is not the case with the consult counterplan. The consult counterplan’s net benefit is not a reason to reject the plan, it is merely an additional advantage to the counterplan. It is closer to the above example of arguing that feeding the world is good. The net benefit to the counterplan is consulting the ally in a genuine way, which would be a net benefit whether or not the affirmative plan was rejected. Thus, the competition of the counterplan stems not from negating the plan, but affirming the counterplan. Hence, the negative has not negated the plan at all.

Permutations Do Not Have to Be Topical

It is also worth mentioning that permutations do not have to be topical. Thus, even if the negative comes up with some word in the resolution that the permutation violates, this is irrelevant to the permutation. While I think some theorists have taken this example too far, a brief discussion of why permutations do not have to be topical is in order.

If permutations had to be topical, then the affirmative could never permute a counterplan that did not take resolutional action. The affirmative would be easy prey for the counterplans to end world hunger or have the world disarm because the permutation to these counterplans would be non-topical. However, because permutations are a theoretical test of the competition of counterplans, not the topicality of counterplans, the permutation to “do the plan and feed the world” is legitimate even if such a permutation was a non-topical action. Similarly, even if the permutation to the consultation counterplan violates resolved or should or substantially, the permutation is still a legitimate test of the competition of the counterplan, because counterplans compete from plan actions and not the resolution. A discussion of why the negative should be negating the plan and not the resolution is outside of this essay, but as long as one accepts the prevailing belief that the plan and not the resolution is the focus of the debate, then the counterplan should be competing with the affirmative plan.
Many theorists may also argue that the counterplan is not textually competitive. While a complete discussion of textual and functional competition is beyond the scope of this essay, suffice to say that I believe textual competition is an illegitimate means of viewing mutual exclusivity. Thus, the fact that the consultation counterplan contains the words of the plan is irrelevant to the question of whether or not the negative counterplan is a reason to reject the affirmative.

Concluding Thoughts on the Competition of Consult Counterplans

            The affirmative should not be required to defend the immediacy or certainty of the plan action. Neither are mandated by the plan, and thus counterplans that compete because of such actions do not compete with a mandate of the plan. Thus, it is theoretically legitimate for the affirmative to permute such counterplans with a permutation as simple as “permute: do the counterplan.” There may be other permutations that are also effective against consult counterplans, but the affirmative should always include this simply phrased, but somewhat complex, permutation.

Other Theoretical Objections to the Consultation Counterplan

In addition to the competition problems with consult counterplans, there are a number of compelling theoretical arguments against the counterplan. I will illustrate a few of these below.

The first theoretical objection is that it explodes the affirmative research burden due to the infinite number of consultation counterplans available. In my time in debate, I have seen the following consult counterplans (there may be others that escape my memory): consult NATO, consult Japan, consult South Korea, consult China, consult Russia, consult the Congress, consult the Joint Chiefs of Staff, and consult the Native Americans. There may be other nations and/or groups that could be consulted beyond these. But even adding this list of groups to be consulted to the list of disadvantages, other counterplans, kritiks, and case arguments to be researched puts the affirmative well behind the research curve. Given the minimal connection to the plan that is needed for these counterplans, it seems adding this to the list of what the affirmative should have to do is incredibly burdensome.

In addition, the research the affirmative would have to do would result in plans that would easily be defeated by traditional arguments. If the affirmative is left having to research that all of these groups would “say no” to the plan so that the affirmative could generate a solvency deficit to the various counterplans, then the affirmative would be left with cases that could be easily defeated on their merits. Imagine a plan that NATO, Japan, Russia, China, South Korea, and the Congress would all reject. That affirmative would be a sitting duck to even basic disadvantages on the topic. Perhaps we should be encouraging the affirmative to come up with good ideas for plans instead of spending their time trying to find an affirmative that virtually the entire world would abhor.

The negative will protest that we gain a great deal of education about consulting the group in question. Do we really? Do we really gain a great deal of education from researching the question of whether prior, binding consultation with various entities around the globe is important? Having researched these questions for almost thirty years, I can assure that the literature base on this specific question is rather shallow. Further, we learn the same rotation, year after year, no matter what the topic is. Perhaps it is time we end our addiction to researching whether we should ask NATO or Japan about whatever question is relevant to this year’s resolution and instead focus on what those questions actually are.

The negative will protest, “but we have a solvency advocate!” First, this is doubtful. The notion that there is a solvency advocate for prior, binding consultation on the exact question the affirmative is asking is highly doubtful. They might have a card that says Japan cares about arms sales. They might have a card that says NATO is concerned about US arms sales to Saudi Arabia. But, they will not have a card on the specifics of the affirmative plan.

And if they do, so what? Why should theoretical obligations be defined by a literature base? Most people would reject the theoretical legitimacy of a counterplan that would have every person in the world lay down their arms and refuse to fight. But, I have a solvency advocate! The Book of Matthew, Chapter 5, verse 9: “Blessed are the peacemakers, for they will be called children of God.” The notion that one has a card that says we ought to do something should not automatically grant it theoretical legitimacy. The notion of a solvency advocate for the counterplan is false, misleading, and irrelevant.

Furthermore, if there is evidence supporting the idea that the affirmative should be consulted about, then the negative can construct a disadvantage out of it. Such an argument would not likely be very powerful, however, without a counterplan to swipe away the entire affirmative along with it.

Conclusion

The consult counterplan should be put on the ash heap of debate arguments, right next to the anarchy counterplan, the world government counterplan, and justification arguments. The argument genre leads to an educational focus away from the literature base of the central question of the topic to the same generic question of who should be asked about the plan, year after year. While we tend to learn a lot about the nature of prior, binding consultation, and we tend to learn a lot about what the Supreme Court of Oklahoma feels the definition of the word should is, we learn a lot less about arms sales. Even if it makes the negative job a bit tougher, we are better off without the consult counterplan.

 

 

 

Ryan Galloway

Ryan Galloway is the Director of Debate at Samford University. One of the most well respected coaches and judges in the country, Galloway won the 2013 Ziegemueller coach of the year award at the National Debate Tournament. He has also judged the final round of the National Debate Tournament a record eight times and was named the third best judge of the 2000-2010 decade. He has coached several NDT qualifiers, and has coached teams to the deep elimination rounds of every major tournament in the country, including CEDA Nationals and the National Debate Tournament. As a debater, he received two first round bids to the NDT, and won numerous top speaker awards, including at the University of Kentucky and ADA Nationals.