1AC - Kant

1AC - Framework
First, Ideal theory’s A) inevitable, which non-uniques disads and B) frames non-
ideal judgments. Arvan ’14:
Posted by Marcus Arvan on 05/03/2014 at 11:05 AM What's not wrong with ideal theory
http://philVosopherscocoon.typepad.com/blog/2014/05/whats-not-wrong-with-ideal-theory.html#sthash.rHY1Rv7v.dpuf

I entirely agree that it is important not to confuse the things that Wedgwood mentions, and that philosophers who
This is fallacious.

work in ideal theory often do confuse those things -- but none of this shows that ideal theory is methodologically

flawed. It shows, at most, that many people have done it badly! Wedgwood then writes of certain "theoretical mistakes"
he sees in ideal theory: For evaluative and normative theorizing, what is most important is to articulate a plausible conception of what it is for one item in the relevant category

I don't think "the most important thing" in normative theorizing is

to be better than another. I think this is just wrong.

to know "what is better than what." That is an important thing to know, but to say it is the most important thing -- without argument -- is simply
an assertion. Here, instead, is what I want to say: There are many important things in normative theorizing. We should want to know what is better than what. But that is not all.

We have every reason to want to know what would be best. To ignore ideal theory -- without
argument for why "what is best" is not something worth knowing -- is to arbitrarily set aside
an important question as irrelevant. Second, I do not think that we can specify what is better
than what without at least some ideal in the background. To say that it would be better for people of
different races to have equal rights than for one race to have more than others is to say that it
is more ideal. But, what is it to say that something is more ideal? It is to say that it is closer to
some ideal. Thus, I say (along with Rawls), the idea what we can do "nonideal theory" without
ideal theory is nonsense. Any attempt to do nonideal theory inevitably -- if only tacitly -- appeals to
ideals.

The meta-ethic is procedural moral realism. Korsgaard ONE clarifies:

[All cards are from Sources of Normativity by Korsgaard]

The procedural realist thinks

What distinguishes substantive from procedural realism is a view about the relationship between the answers to moral questions and our procedures for arriving at those answers. moral

there are answers to moral questions because there are correct procedures for arriving at
that

them. the substantive moral realist thinks

But correct procedures [track] that there are for answering moral questions because there are

moral truths that exist independent of those procedures

or facts ly , which those procedures track.35

Prefer since substantive realism relies on an implausible epistemology.

Korsgaard TWO:
Substantive realism conceives the procedures for answering normative questions as ways of finding out about a certain part of the world, the normative part. To that extent, substantive moral realism is

distinguished not by its view about what kind of truths there are, but by its view of what kind of subject ethics is. It conceives ethics as a branch of knowledge: knowledge of the
normative part of the world. Substantive moral realism has been criticized in many ways. It has been argued that we have no reason to believe in intrinsically normative entities or objective values. They are not
harmonious with the Modern Scientific World View, nor are they needed for giving scientific explanations. Since the time of Hume and Hutcheson, it has been argued that there is no reason why such entities should motivate us, disconnected as they are from our
natural sources of motivation. Many of these criticisms have been summed up in John Mackie’s famous “Argument from Queerness.” Here it is in Mackie’s own words: If there were objective values, then they would be entities or qualities or relations of a very

utterly different from anything else in the universe [known]

strange sort, by some . Correspondingly, if we were aware of them, it would have to be

special faculty of moral perception or intuition, utterly different from our ordinary ways of knowing everything else. Plato’s Forms give a dramatic picture of what objectiv e values would have to be. The

knowledge of it
Form of the Good is such that tells the person to pursue
provides the knower with both a direction and an overriding motive; something’s being good both who knows this

it and makes him An objective good would be sought by anyone

pursue it. acquainted with it who was , not because of

the end has to-be-pursuedness somehow built into it.

any contingent fact that this person, or every person, is so constituted that he desires this end, but just because

nothing could be like that.

Similarly, if there were objective principles of right and wrong, any wrong (possible) course of action would have not-to-be-doneness somehow built into it.36 And , Mackie suggests, Of course
Mackie doesn’t really prove that such entities couldn’t exist. But he does have a point, although I think it is not the point he meant to make.
Takes out Cummiskey (equality), Nagel, Sinhababu, impact-justified, and
oppression-only frameworks. They assume substantive moral realism by
assuming the correct ethic happens to track the good.
Here’s the procedure: it’s practical reason. Korsgaard THREE:
The reflective structure of the mind is a source of “selfconsciousness” because it forces us to have a conception of ourselves. As Kant argues, this is a fact about what it is like to be reflectively conscious and it does

. From a third person point of view, outside of the deliberative standpoint, it may [seem] look as if what
not prove the existence of a metaphysical self

happens when someone makes a choice is that the strongest of his conflicting desires wins. But that isn’t the way it is for you when you deliberate.

When you deliberate, it is as if [you] there were something over and above all of your desires, something that is you, and that choos[ing]es

which desire to act on. This means that the [with] principle or law by which you determine your actions is one that you regard as being
expressive of yourself. To identify with such a principle or law is to be, in St. Paul’s famous phrase, a law to yourself.6 An agent might think of herself as a Citizen in the Kingdom of
Ends. Or she might think of herself as a member of a family or an ethnic group or a nation. She might think of herself as the steward of her own interests, and then she will be an egoist. Or she might think of
herself as the slave of her passions, and then she will be a wanton. And how she thinks of herself will determine whether it is the law of the Kingdom of Ends, or the law of some smaller group, or the law of the
egoist, or the law of the wanton that is the law that she is to herself. The conception of one’s identity in question here is not a theoretical one, a view about what as a matter of inescapable scientific fact you are. It

is better understood asa description under which you value yourself [is], a description under which you find your life to be worth living and your actions
to be worth undertaking. So I will call this a conception of your practical identity. Practical identity is a complex matter and for the average person there will be a jumble of such

conceptions. You are a human being, a woman or a man, an adherent of a certain religion, a member of an ethnic group, someone’s friend, and so on. And all of these

identities give rise to reasons and obligations. Your reasons express your identity, your nature ; your obligations spring from what that identity forbids. Our ordinary
ways of talking about obligation reflect this connection to identity. A century ago a European could admonish another to civilized behavior by telling him to act like a Christian. It is still true in many quarters that
courage is urged on males by the injunction “Be a man!” Duties more obviously connected with social roles are of course enforced in this way. “A psychiatrist doesn’t violate the confidence of her patients.” No

Consider
“ought” is needed here because the normativity is built right into the role. But it isn’t only in the case of social roles that the idea of obligation invokes the conception of practical identity.

the astonishing but familiar “I couldn’t live with myself if I did that.” Clearly there are two selves here, me and
the one I must live with and so must not fail. Or consider the protest against obligation ignored : “Just who do you think you are ?” The connection is also
present in the concept

of integrity. Etymologically, integrity is oneness, integration is what makes something one. To be a thing, one thing, a unity, an entity; to be anything at all: in the metaphysical sense, that is what it means to have
integrity. But we use the term for someone who lives up to his own standards. And that is because we think that living up to them is what makes him one, and so what makes him a person at all. It is the

conceptions of ourselves that are most important to us that give rise to unconditional obligations. For to violate them is to [not] lose your integrity and so your identity, and no
longer to be who you are. That is, it is no longer to be able to think of yourself under the description under which you value yourself and find your life worth living and your actions

worth undertaking. That is to be for all practical purposes dead or worse than dead. When an action cannot be performed without loss of some

fundamental part of one’s identity, and an agent would rather be dead, then the obligation not to do it is unconditional and complete. If reasons arise from reflective

endorsement, then obligation arises from reflective rejection.

Implications:
A) No universality indicts – since you can bring any identity in question, reason
must be universal when used well. Also this perms any K. I might’ve poorly used
reason, but that just means a refined form of Kant is good, so the K is
compatible with my aff.
That implies intersubjectivity—Reasons must be public, explaining why we can
understand the reasons others have, while still identifying primarily with our
own. Thus reasons must be universal since they stem from humanity. Korsgaard
FOUR:1
There are reasons for caring about these things, reasons whichare shareable a climber
communicable and therefore at least potentially . Ask mountain why she climbs and she need not be

mute: she may tell you about the things enlarged vistas, the challenge
the struggle with the elements, of overcoming fears or surpassing physical limitations. She takes her desire to climb

mountains to be a motivated desire, movtivated by recognizably good features of the experience of climbing. She does n t take the value of the climb to be conferred
o

on it simply by her desire to do it. Someone who says “I just want to” isn’t offering you his reason; he is setting up a bulwark against incomprehension. You may be the problem or he may feel himself

1 Korsgaard, Christine. 1993. The reasons we can share: An attack on the distinction between agent-relative and agent-neutral values. In Altruism, ed. Ellen Frankel Paul, Fred Dycus Miller, and Jeffrey Paul. Cambridge: Cambridge University Press. Previously published
in Social Philosophy and Policy 10, no. 1: 24-51.
inarticulate: many people do. But listen to the articulate talk about their projects and you hear the familiar voice of humanity, not the voice of alien
idiosyncrasies . Or if you don’t, perhaps you should. For it is at this point that the difference between Objective Realism and Intersubjectivism becomes important. An Objective Realist interpretation of the value of climbing mountains, or of

These are not

collecting stamps or coins or barbed wire, or of excelling at bowling or billiards, is not very tempting. xxxi Neither, as I think, is an Objective Realist interpretation of the value of a good book on Kant’s ethics.

intrinsic values, already there in the universe, but rather expressions of our own which we have discovered, are distinctively

human capacity to take an interest, . To share another’s ends, and to find something interesting, in whatever we find around us or at least to grant that they

is to see
could be shared, expressions of our common humanity.
them as expressions of that capacity, and so as The Intersubjectivist sees the other as human, and therefore shares

or tries to share the other’s ends. That is why she helps others to pursue their ambitions. But the Objective Realist sees no reason to help unless he first sees the other’s ends as ones that he can share. His relationship to ot hers is mediated by his relationship to their

We should promote the ends of others not because we

ends. According to the Intersubjectivist this is not only a mistake in moral theory but a moral wrong.

recognize the value of those ends, but rather out of respect for the humanity of those who have
them.

Next, reason must be universalizable. 2+2=4 for me just as much as it does for
you because there’ nothing exceptional about my will. Coercion is not
universalizable because if everyone coerced each other, we’d all have freedom
and lack it at the same time.
And, Kant solves racism.
Farr 02 Arnold Farr (phil prof @ UKentucky, focusing on German idealism, philosophy of race,
postmodernism, psychoanalysis, and liberation philosophy). “Can a Philosophy of Race Afford to
Abandon the Kantian Categorical Imperative?” JOURNAL of SOCIAL PHILOSOPHY, Vol. 33 No. 1,
Spring 2002, 17–32.
Whereas most criticisms are aimed at the formulation of universal law and the formula of autonomy, our analysis here will focus on
the formula of an end in itself and the formula of the kingdom of ends, since we have already addressed the problem of universality.
The latter will be discussed first. At issue here is what Kant means by “kingdom of ends.” Kant writes: “By ‘kingdom’ I understand a
systematic union of different rational beings through common laws.”32 The above passage indicates that Kant recognizes different,
perhaps different kinds, of rational beings; however, the problem for most critics of Kant lies in the assumption that Kant suggests
that the “kingdom of ends” requires that we abstract from personal differences and content of private ends. The Kantian conception
of rational beings requires such an abstraction. Some
feminists and philosophers of race have found this
abstract notion of rational beings problematic because they take it to mean that rationality is
necessarily white, male, and European.33 Hence, the systematic union of rational beings can mean only the
systematic union of white, European males. I find this interpretation of Kant’s moral theory quite puzzling.
Surely another interpretation is available. That is, the implication that in Kant’s philosophy, rationality can only apply to white,
European males does not seem to be the only alternative. The problem seems to lie in the requirement of abstraction. There are
two ways of looking at the abstraction requirement that I think are faithful to Kant’s text and
that overcome the criticisms of this requirement. First, the abstraction requirement may be best
understood as a demand for intersubjectivity or recognition. Second, it may be understood as an
attempt to avoid ethical egoism in determining maxims for our actions. It is unfortunate that Kant never
worked out a theory of intersubjectivity, as did his successors Fichte and Hegel. However, this is not to say that there is not in Kant’s
philosophy a tacit theory of intersubjectivity or recognition. The
abstraction requirement simply demands that in
the midst of our concrete differences we recognize ourselves in the other and the other in
ourselves. That is, we recognize in others the humanity that we have in common. Recognition of our common humanity is at the
same time recognition of rationality in the other. We recognize in the other the capacity for selfdetermination and the capacity to
legislate for a kingdom of ends. This brings us to the second interpretation of the abstraction requirement. To avoid ethical
egoism one must abstract from (think beyond) one’s own personal interest and subjective maxims. That is, the
categorical imperative requires that I recognize that I am a member of the realm of rational beings. Hence, I organize my
maxims in consideration of other rational beings. Under such a principle other people cannot be treated merely as
a means for my end but must be treated as ends in themselves. The merit of the categorical imperative for a
philosophy of race is that it contravenes racist ideology to the extent that racist ideology is
based on the use of persons of a different race as a means to an end rather than as ends in
themselves. Embedded in the formulation of an end in itself and the formula of the kingdom of ends is the recognition of the
common hope for humanity. That is, maxims ought to be chosen on the basis of an ideal, a hope for the amelioration of humanity.
This ideal or ethical commonwealth (as Kant calls it in the Religion) is the kingdom of ends.34 Although the merits of Kant’s moral
theory may be recognizable at this point, we are still in a bit of a bind. It still seems problematic that the moral theory of a racist is
essentially an antiracist theory. Further, what shall we do with Henry Louis Gates’s suggestion that we use the Observations on the
Feeling of the Beautiful and Sublime to deconstruct the Grounding? What I have tried to suggest is that instead
of
abandoning the categorical imperative we should attempt to deepen our understanding of it
and its place in Kant’s critical philosophy.

Thus, the standard is consistency with a system of equal and outer freedom.
 1AC – Advocacy
I defend the whole resolution – plea bargaining ought to be abolished in the
United States criminal justice system. I’ll clarify anything in CX.
 1AC – Contention
First, punishment must be retributive – anything else would result in a violation
of freedom. Byrd
Sharon Byrd, “Kant’s Theory of Punishment: Deterrence in Its Threat, Retribution in Its Execution,” Law and Philosophy 8 (1989):
151–200. MS

society is
The more important role of the retributive principle, however, is to guarantee that the individual be treated justly. In threatening punishment

concerned with deterring crime, but the threat is made with the knowledge that it will be executed
against the offender. An excessive threat of punishment may be very effective, but not only would it
be a hindrance greater than the hindrance to freedom represented by the offense and thereby itself a
hindrance to freedom, but its execution would be unjust to the individual actor. "All state punishment
occurs for correction and example, but above all it must be just with respect to the crime only, quia peccatum est. The criminal must not be

able to complain of injustice." 36 An example of what would not be permissible under Kant's theory of justice is provided by the economic analysis of crime prevention. It has

been suggested that punishment should be equal to the damage caused by the crime divided by the probability of detection.'37 This formula would lead to punishment in excess

of the severity of the offense in all cases in which the probability of detection were less than 100 percent. Not only would such punishment be a hindrance to freedom in itself

under Kant's formula of effect and counter-effect, but to the extent it is excessive it would be using the individual caught merely as a means to the social goal of reducing crime.

To explain the latter defect, one must contrast the case of repetitious criminal behavior with that of the one-time offender. The best argument for the economic analysis

approach can be made with the professional criminal. Let us assume that the probability of detecting bank robbery is 10 percent and the average gain from a robbery is $100. If

the penalty for bank robbery is a $100 fine, the robber will have an expected average gain of $90 per robbery. Assuming the probability of detection remains constant, it will be

profitable for him to rob, and if he is a professional robber he will continue to do so, until the penalty is raised to $1000.138 It would seem that the only adequate motivation the

state could attach to the duty not to rob banks would be a $1000 fine. If all individuals who rob banks actually do commit 10 robberies, make an average gain of $100 per

robbery, and get caught once, the penalty arguably would seem fair, even from a Kantian point of view. If anyone exists, however, who robs only once and gets caught

immediately, the penalty of $1000 can be defended by reference to the general state goal of reducing crime but not by any arguments of individual justice. In these cases the

amount of punishment in excess of the past gains of the bank robber are imposed not because that much punishment is equivalent to the motivation needed to deter the
individual actor but because that much punishment is necessary to set an example for other potential bank robbers. That is not a

possible solution under Kantian criminal law doctrine because it involves using one individual merely as a
means to some independent end: "Every exemplary punishment is unjust, if it is not just as vindictive punishment. I cannot use an individual as a
means, since he always has the value of an end .... Punishment that is too severe as vindication, is unjust ... as correction".'39 Since by definition the state cannot know how

a
many undetected robberies the defendant in any particular criminal case has already committed, every case would be a potential example of excessive punishment. Clearly

difference exists between providing a motivation for each individual not to commit a particular
offense through threatening punishment that is equivalent to the damage represented in the
offense and using one individual as an example to dissuade others from committing the crime.
For Kant the former is the society's duty as securer of individual rights. The latter is merely a

method of compensating for society's failure to fulfill its duty to execute the threatened
punishment in some cases because of inefficiencies in the detection of crime. The only possible cure for these
deficiencies under Kantian analysis would be improving the probability of punishment execution but not raising the punishment threatened: "One may do no evil to a person,

For Kant the principle of retribution, therefore, is relevant in

who is not deserving of that evil, in order to gain advantage for others".'40

to guarantee that the

determining what type of punishment is suitable to deter each individual from committing a particular offense and more importantly

amount of punishment imposed will be neither lesser nor greater than the severity of the
offense committed.

Plea bargaining can’t be retributive. Kipnis

Kipnis, Kenneth. “Plea Bargaining: A Critic's Rejoinder.” Law & Society Review, vol. 13, no. 2, 1979, pp. 555–564. JSTOR, JSTOR,
www.jstor.org/stable/3053268. MS
In my earlier article (1976:102 ff.) I argued that our system can best be understood as an institutionalization of two princi ples. The first is that those
(and only those) individuals who are clearly guilty of serious specified wrongdoing deserve an of ficially administered punishment proportional to their
wrong doing. Justice in punishment is realized when the guilty person receives neither more nor less punishment than is de served. Under the reforms
advocated by Church and Brunk, those
accused tried by juries would be guaranteed "theoretically correct"
sentences, the sentences deserved by persons who have done that with which they are charged.
Those taking advantage of plea bargains would have these sentences dis counted in some way.
Obviously, either those pleading guilty have committed their crimes or they have not. If they have, they receive

less than the punishment they deserve-an injus tice. If they have not, they receive more than the
punishment they deserve-another injustice. Under plea bargaining, it will never be reasonable to
believe that those convicted receive the punishment they deserve. This systematic misapplication of punishment,
this structural injustice, is what discredits the le gitimacy of plea bargain.

And, it’s intrinsically coercive. Brunk

Brunk, Conrad G. “The Problem of Voluntariness and Coercion in the Negotiated Plea.” Law & Society Review, vol. 13, no. 2, 1979,
pp. 527–553. JSTOR, JSTOR, www.jstor.org/stable/3053267. MS

Critics of plea bargaining, however, have continued to voice earlier judicial and legislative sentiments condemning the practice on the ground
that the standard of voluntariness cannot be met because the practice is
intrinsically coercive. The criticisms advanced have taken two
distinct but related courses. The first asserts that any difference in the sentences following guilty and not-guilty

pleas constitutes an implied threat that operates to coerce the defendant to plead guilty. For
example, Abraham Blumberg (1967:31) argued that since the jury trial is an undesirable alternative,

the threat of it places the defendant on the horns of a dilemma and is thus one of the most
powerful prosecutorial tools to "reduce a defendant's resistance." More recently, Kenneth Kipnis
argued that the bargain situation facing the defendant differs little from that facing the victim of
a gunman demanding his money: [T]he same considerations that will drive reasonable people to give in to the gunman compel one
to accept the prosecutor's offer. .. . [O]ne can see that, like the gunman's acts, the acts of the prosecutor can "op erate coercively upon the will of the
plaintiff, judged subjectively," and both the gunman's victim and the defendant may "have no adequate remedy to avoid the coercion except to give
in." In both cases reason able persons might well conclude (after considering the gunman's le thal weapon or the gas chamber) "I can't take the
chance." A spineless person would not need to deliberate. [1976:99] Apparently Kipnis believes that this
element of threat is intrinsic
to plea bargaining insofar as the prosecutor, like the gun man, "require(s) persons to make hard
choices between a very certain smaller imposition and an uncertain greater imposition." "As a
defendant," he says, "I am forced to choose be tween a certain smaller punishment and a substantially
greater punishment with a difficult-to-assess probability" (emphasis added) (1976:98-99). Indeed, given a choice
between being an innocent defendant offered a bargain in exchange for a plea and facing a "fairminded gunman," Kipnis would prefer the lat ter!
(1976:99). Underlying this line of reasoning is the notion that, because
the defendant faces the threat of criminal
prosecution, any offer that allows him to avoid this threat coerces or "induces" his choice. This
approach is shared by the authors of the American Law Institute's Restatement of Contracts: "A threat of criminal prosecution . . . may be of such
compelling force that acts done under their influence are coerced, and the better foundation there is for the prosecution, the greater is the coercion"
(1933:652). Justice Brennan voiced a similar view in his dissenting opinion in the Alford case. Alford had
been indicted for first degree murder and was offered a reduction to second-degree in exchange for a guilty plea. Although there were witnesses pre
pared to give testimony strongly indicating his guilt, Alford nevertheless maintained: I pleaded guilty on second-
degree murder because they said there is too much evidence, but I ain't shot no man, but I take the
fault of the other man. We never had an argument in our life and I just pleaded guilty because they said if I didn't they

would gas me for it, and that is all .... I'm not guilty, but I plead guilty. [North Carolina v. Alford, 400 U.S. 25, 28 n.2, 1970] After his plea of
guilty was accepted, the court sentenced Al ford to 30 years imprisonment, the maximum penalty for

second-degree murder. Justice Brennan wrote in dissent that "the facts set out in the majority opinion demonstrate that Al ford was 'so
gripped by fear of the death penalty' that his decision to plead guilty was not voluntary but was the product of duress as much so as choice reflecting
physical constraint" (North Carolina v. Alford, 400 U.S. 25, 40, 19
 Constitution Add-On
6th amendment guarantees defendants’ rights to a jury trial. US Constitution:
https://www.law.cornell.edu/constitution/sixth_amendment. MS

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusation; to
be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.

Plea bargaining offers defendants incentives to waive their right to a jury trial –
that’s not constitutional. Penn Law Review
Constitutional Alternatives to Plea Bargaining: A New Waive.”University of Pennsylvania Law Review, vol.
132, no. 2, Jan. 1984, pp. 327–329.,
scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4627&context=penn_law_review. MS
The right, to a trial by jury, a right guaranteed by the sixth amendment,' has been seriously undermined by the huge criminal caseload and the limited
resources of our judicial system. Jury
trial has become the exception rather than the rule as guilty pleas
dispose of the vast majority of criminal cases without trial.' Plea bargaining, the system whereby criminal defendants
are given inducements in the form of reduced charges or lighter sentences in exchange for pleading guilty, has been accepted as a necessary evil and
upheld by the Supreme Court as a constitutional method of determining guilt.8 Some commentators, however, dispute the Supreme Court's view,
arguing that plea
bargaining infringes a criminal defendant's absolute right to a trial by jury, and thus
is unconstitutional.4 These commentators urge that the system provide resources adequate to permit the exercise of this constitutional
right.5 Alternatives to increasing resources do, however, exist. Several major American cities have tried using criminal bench trials for the same purpose
that most other cities have used guilty pleas: as an inexpensive alternative to jury trials.' In these jurisdictions, the state promises to drop charges or
deliver reduced sentences in return, not for the criminal defendant's waiver of his right to trial but rather for the defendant's waiver of his right to have
a jury determine his guilt. Like cities that rely heavily on securing guilty pleas, cities
that dispose of a significant number of
cases by means of bench trials provide powerful incentives for the criminal defendant to waive
the constitutional right to trial by jury.7 Defendants who waive their right to a jury trial are rewarded; those who demand a jury
trial are punished.' In studying the jurisdictions that rely on bench trials, commentators have focused their attention on the question whether the
bench trials defendants receive in exchange for waiving their constitutional right to a jury are "real" trials.9 The more fundamental question, whether
incentives to waive the right to a jury are constitutional, has been largely ignored. In considering
the latter question, three lines of Supreme Court cases are relevant: the cases upholding plea
bargaining, the cases considering unconstitutional conditions, and the cases involving
"vindictive" sentencing. Many commentators claim to find irreconcilable conflicts among these
lines of decisions.10 The well-established unconstitutional conditions doctrine seems to hold that penalties may not be imposed on, nor
government privileges withheld from, those who exercise their constitutional rights."' The decisions upholding plea bargaining, however, could be said
to fly in the face of that doctrine." In
plea bargaining, defendants are, in effect, penalized for demanding their
right to a trial, or conversely, rewarded for waiving that right. As one critic has said, "the Court [in upholding
plea bargaining] has engaged in constitutional interpretation that is analytically untenable. . . . It
has, in sum, sought to justify a result, rather than to apply neutral principles to the
determination of the issue before it."'"

Constitutionality is key to government credibility. Ginsburg:

Tom Ginsburg (Professor of Law and Political Science, University of Illinois, Urbana-Champaign). “LOCKING IN DEMOCRACY:
CONSTITUTIONS, COMMITMENT, AND INTERNATIONAL LAW.” 2006. http://works.bepress.com/tom_ginsburg/12/
Why might these issues of constitutional design vary across countries? I draw on the literature that treats constitutions as mechanisms for making
political precommitments.56 A precommitment means “becoming committed, bound or obligated to some course of action or inaction or to some
constraint on future action . . . to influence someone else’s choices.”57 Imagine a constitution written by a single political leader, seeking to establish
legitimate authority. The politician can promise to behave in particular ways, for example, not to interfere with the rights of his or her citizens. But
there is no reason for citizens to believe mere promises from their leader. A promise at Time 1
only has value if the promise believes that it will be obeyed at Time 2. The politician thus faces
the problem of making the promise[s] credible. This problem is particularly acute when the
politician cannot predict the incentives he or she will face in the future.58 If costs and benefits
vary in unpredictable ways, the politician’s promise to behave in the specified way may be less
believable. To paraphrase Stephen Holmes, why should people believe their leader when sober, knowing that sometimes leaders can become
drunk and behave quite differently?59 Facing this problem, a rational constitutional designer might realize that it makes sense to limit her own power,
in order to obtain the consent of those she governs. Democratic constitutions can help to serve this role. As Sunstein has written: “ Democratic

constitutions operate as ‘precommitment strategies’ in which nations, aware of problems that

are likely to arise, take steps to ensure that those problems will not arise or that they will
produce minimal damage if they do.”60 Constitutions help make the promises credible by
imposing costs on those who violate promises.61 By tying their own hands, politicians actually
can enhance their own authority.

International credibility is key to preventing several extinction scenarios. Nye

and Armitage 07:
Joseph Nye (University Distinguished Service Professor at Harvard University, and previous dean of Harvard University's John F.
Kennedy School of Government) and Richard Armitage (13th United States Deputy Secretary of State, the second-in-command at the
State Department, serving from 2001 to 2005), “CSIS Reports – A Smarter, More Secure America”, 11/6, 2007
http://www.csis.org/component/option,com_csis_pubs/task,view/id,4156/type,1/

Soft power is the ability to attract people to our side without coercion. Legitimacy is central to soft power. If
a people or nation believes
American objectives to be legitimate, we are more likely to persuade them to follow our lead
without using threats and bribes. Legitimacy can also reduce opposition to—and the costs of—using hard power when the situation demands.
Appealing to others’ values, interests, and preferences can, in certain circumstances, replace the dependence on carrots and sticks. Cooperation is
always a matter of degree, and it is profoundly influenced by attraction…The information age has heightened political consciousness, but also made
political groupings less cohesive. Small, adaptable, transnational networks have access to tools of destruction that are increasingly cheap, easy to
conceal, and more readily available. Although the integration of the global economy has brought tremendous benefits, threats
such as
pandemic disease and the collapse of financial markets are more distributed and more likely to
arise without warning. The threat of widespread physical harm to the planet posed by nuclear catastrophe has
existed for half a century, though the realization of the threat will become more likely as the number of nuclear weapons states
increases. The potential security challenges posed by climate change raise[s] the possibility of an entirely

new set of threats for the United States to consider… States and non-state actors who improve their
ability to draw in allies will gain competitive advantages in today’s environment. Those who
alienate potential friends will stand at greater risk. China has invested in its soft power to ensure access to resources and to
ensure against efforts to undermine its military modernization. Terrorists depend on their ability to attract support from the crowd at least as much as
their ability to destroy the enemy’s will to fight.

Constitution first. Korsgaard:

Pages 8-9 SELF-CONSTITUTION CHRISTINE M. KORSGAARD SELF—CONSTITUTION IN THE ETHICS OF PLATO AND KANT ’ (Received
and accepted 15 September 1998

In fact, the main purpose

of a literal political constitution is precisely to lay out the city’s mode of
deliberative action, the procedures by which its collective decisions are to be made and carried out. A constitution defines a set of roles and
offices which together constitute a procedure for deliberative action, saying who shall perform each step and how it shall be done. It lays out the
proper ways of making proposals (say by petition, or the introduction of bills, or whatever), of deciding whether to act on these proposals (the
legislative function), and of carrying out the resulting decisions (the executive function). And in each case it says who is allowed to carry out the
procedures it has specified. The
constitution in this way makes it possible for the citizens to function as a
single collective agent. And this explains Socrates’s puzzling definition of justice. Justice, he says, is “doing one’s own work and not
meddling with what isn’t one’s own” (433a—b). When Socrates first introduces this principle into the dis- cussion (369eff.), he’s talking about the
specialization of labor, and that’s what the principle sounds like it’s about.6 But if we think of the constitu- tion as laying out the procedures for
deliberative action, and the roles and offices that constitute those procedures, we can see what Socrates ’5 point is. For usurping the office of another
For instance if
in the constitutional procedures for collective action is precisely what we mean by injustice, or at least it is one thing we mean.

the constitution says that the president cannot make war without the agreement of the
congress, and yet he does, he has usurped congress’s role in this decision, and that’s unjust. If
the 6 Socrates not only openly acknowledges this oddity later on, but actually suggests that the principle of the specialization of labor is “beneficial”
because it is “a sort of image of justice” (443c). constitution says that each citizen gets to cast one vote in the election, and through some fraud you
injustice, in one of its most familiar
manage to vote more than once, you are dimin- ishing the voice of others in the election, and that’s unjust. So

senses, is
usurping the role of another in the deliberative procedures that define collective
action. It is meddling with somebody else’s work. I said in one sense, for this is very much what is sometimes called a
procedural conception of justice, as opposed to a substantive one. This distinction represents
an important tension in our concept of justice, and a standing cause of confusion about the
source of its normativity. On the one hand, the idea of justice essentially involves the idea of
following certain procedures. In the state, as I have been saying, these are the procedures which the constitution lays out for
collective deliberative action: for mak- ing laws, waging wars, trying cases, collecting taxes, distributing services, and all of the various things that a
state does.
According to the procedural conception of justice, an action of the state is just if and
only if it is the out- come of actually following these procedures. That is a law which has been passed in form by a
duly constituted legislature; this law is constitutional if (say) the supreme court says that it is; a person is innocent of a certain crime when he has been
deemed so by a jury; someone is the president if he meets the legal qualifications and has been duly voted in, and so forth. These are all normative
judgments — the terms law, constitutional, innocent, and president all imply the existence of certain reasons for action — and their norrnativity derives
from the canying out of the procedures which have established them. On the other hand, however, there are certainly
cases in which we have some independent idea of what outcome the procedures ought to
gener- ate. These independent ideas serve as the criteria for our more substantive judgments -
in some cases, of what is just, in other cases, simply of what is right or best. And these substantive judgments can come in

conflict with the actual outcomes of carrying out the procedures. Perhaps the law is unconstitutional, though the legislature has passed it;
perhaps the defen- dant is guilty, though the jury has set him free; perhaps the candidate elected is not the best person for the job, or even the best of
those who ran, or perhaps due to the accidents of voter turnout he does not really represent the majority will. As this last example shows, the
distinction between the procedurally just and the substantively just, right, or best, is a rough and ready one, and relative to the case under
consideration. Who should be elected? The best person for the job, the best of those who actually run, the one preferred by the majority of the
citizens, the one preferred by the majority of the registered voters, the one elected by the majority of those who actually turn out on election day As
we go down the list, the answer to the question becomes increasingly procedural; the answer above it is, relatively, more substantive. We
may
try to design our procedures to secure the substantively right, best, or just outcome. But —
and here is the important point — according to the procedural conception of justice the
normativity of these procedures nevertheless does not spring from the efficiency, goodness,
or even the substantive justice of the outcomes they produce. The reverse is true: it is the
procedures themselves — or rather the actual carrying out of the procedures — that confers normativity on those
outcomes. The person who gets elected holds the office, no matter how far he is from being the best person for the job. The jury’s acquittal
stands, though we later discover new evidence that after all the defendant was guilty. Now if the normativity of the outcomes springs from the carrying
out of the procedures, where, we may ask, does the normativity of the procedures themselves come from? And
here we run into the
cause of confusion I mentioned at the outset, for there is a standing temptation to believe
that the procedures themselves must derive their normativity from the good quality of their
outcomes. That cannot be right, as I’ve just been saying, for if the normativity of our procedures came
from the substantive quality of their outcomes, we’d be prepared to set those procedures
aside when we knew that their outcomes were going to be poor ones. And as I’ve just been
saying, we don’t do that. Where constitutional procedures are in place, substantive rightness, goodness, bestness, or even justice is
neither necessary nor sufficient for the normative standing of their outcomes. Perhaps we may now be tempted to, say that what makes the
procedures normative is the usual quality of their outcomes, the fact that they get it right most of the time. After all, even if we stand by the outcomes
of our procedures though in this or that case they are bad, we would certainly change those procedures if their outcomes were bad too often. But this
cannot be the whole answer, both because it isn’t always true — think of the jury system - but also because, as act utilitarians have been telling us for
years, it is irrational to follow a procedure merely because it usually gets a good outcome, when you know that this time it will get a bad one. So
perhaps we should say that the normativity of the procedures comes from the usual quality of their outcomes combined with the fact that we must
have some such procedures, and we must stand by their results. But
why must we have such procedures? Because
without them collective action is impossible. And now we’ve come around to Plato’s view. In order to act
together — to make laws and policies, apply them, enforce them — in a way that represents,
not some of us tyrannizing over others, but all of us acting as a unit — we must have a
constitution that defines the procedures for collective deliberative action, and we must stand
by their results.7 According to Plato, the normative force of the constitution consists in the fact that it makes it possible for the city to
function as a single unified agent. For a city without justice, according to Plato, above all lacks unity - it is not one city, he says, but many (422d—423c;
see also 462a—e). When justice breaks down, the city falls into civil war, as the rulers, the soldiers, and the people all struggle for control. The
deliberative procedures that unify the city into a single agent break down, and the city as such can- not act. The individual citizens and classes in it may
still perform various actions, but the city cannot act as a unit. And this applies to justice and injustice within the individual person as well. Socrates says:
One who is just does not allow any part of himself to do the work of another part or allow the various classes within him to meddle with each other. He
regulates well what is really his own and rules himself. He puts himself in order, is his own friend, and harmonizes the three parts of himself like three
limiting notes in a musical scale — high, low, and middle. He binds together those parts and any others there may be in between, and from having been
many things he becomes entirely one, moderate and harmonious. Only then does he act. (443d—e) But if justice is what makes it possible for a person
to function as a sin- gle unified agent, then injustice makes it impossible. Civil war breaks out between appetite, spirit, and reason, each trying to usurp
the roles and offices of the others. The deliberative procedures that unify the soul into a single agent break down, and the person as such cannot act.
So Socrates’s argument from Book 1 turns out to be true.
 1AC – Underview
1) Prefer EC- phil, resolvability