Birthright Citizenship, Meritocracy, and the "Debate-ification" of Public Life
The amorality and influence of elite high school debate is worth contemplating
In February of 2012, I stood in front of a panel of three judges and argued that the constitutional guarantee of birthright citizenship should be abolished. I was a high school debater. The judges weren’t federal appointees but the parents and coaches of other competitors. I wasn’t arguing from conviction. I made the arguments I made because qualification to that summer’s national tournament hung in the balance. I said the things I said because I wanted to win.
Over the course of that debate season I’d earned a reputation as one of the best performers in the Youngstown, Ohio area. Weekend tournaments furnished a social context in which my idealized and actual selves felt aligned—generally speaking, I was both personally liked and competitively respected. Yet there were limits to the normative universe debate helped me construct. I attended a moderately resourced public school. We rarely traveled to out-of-district tournaments, and though I performed well locally, I didn’t put enough work in, coasting on projected confidence and pithy turns of phrase (and, often, unjust racial and gender dynamics). In the rare occasions I faced prepared teams from wealthier programs, my rhetorical skills, whatever their worth, weren’t enough.
Yet they were that February. Invoking Emma Lazarus’s The New Colossus in support of “legal immigration,” I won my team a trip to nationals. And what, if not that competitive triumph, was debate for?
The Recent Unpleasantness
A Southern euphemism for the Civil War, the “recent unpleasantness” aptly describes two events. The first is the Trump administration’s attacks on the constitutional promise of birthright citizenship. In a January 20 Executive Order, the administration lawlessly asserted that U.S. citizenship would no longer attach to children born on U.S. soil if their parents are undocumented.1
The second is the defense of the Order by a discrete segment of legal academia. Initially promising a pre-existing literature in support of the Trump administration’s anti-birthright position, a handful of scholars have since given us blog posts, an op-ed, and an SSRN introduction. Scholars writing both before and after have seemingly debunked the anti-birthright position on the merits.
An aspiring First Amendment scholar, I’ll abstain from adding an(other) under-informed voice to this Fourteenth Amendment debate. This is not to equivocate. The anti-birthright view, presented entirely in non-academic contexts, cobbled together in the midst of ongoing litigation,2 seems plainly wrong. Many scholars arguing as much have long earned my personal and professional trust. Still, this isn’t a forum for rigorous legal scholarship, and so I want to instead focus on the act of “debate” itself: its high school iteration in particular and the downstream effects that activity has had on professional and political life.
Reflexively championed as a path to critical thinking and toleration of diverse viewpoints among young people,3 I worry debate fosters sophistry and solipsism, an act of social performance untethered from the genuine development of epistemic or ethical principles. Under the competitive pressures and market logics of meritocracy, debate sidelines the cultivation of innate value in favor of instrumental reasoning. Most profoundly, it rewards these behaviors, stacking the deck against alternative approaches. These flaws do not comprehensively define debate, of course, but they are both prevalent and consequential.
Debate, Law, and Society
High school debate is adversarial, its bottomline results unambiguous. Some competitors must win; a corresponding number must lose. This existential binary (I am a winner; you are a loser) creates strong incentives for aiming all stages of the activity—topic research, argument preparation, case writing—at victory. Arguments are not made because they are the best according to some background principle of knowledge or morality but because they help debaters win rounds.
Superficially, this might seem unobjectionable. If it’s fine that one team wins and the other loses in basketball, for instance, why can’t the same be true of debate? Surely there’s nothing wrong with the mere fact of competition? Surely you aren’t insisting on more participation trophies?
Basketball, like other sports, is conceptually self-contained. I’m a fan of the Cleveland Cavaliers, and though their competitive success brings me joy, society does not insist that Donovan Mitchell or Evan Mobley are qualified to set the terms of public life because of their win-loss record.4
Debate, by contrast, is thought to “select[] for kids who often go on to have important careers in politics.” Presidents and Supreme Court Justices do debate. The National Speech and Debate Association has long been sponsored by the Council on Foreign Relations.5 This isn’t to suggest a conspiracy but to highlight the synergies between elite high school debate and influential institutions in civil society. Debate is not simply a low stakes extracurricular competition. It is a pathway to fluency in topics of interest to the professional policy class and, ultimately, to membership therein.
Competitive success in debate is valued in college applications. As higher education becomes an increasingly powerful tool of social and economic sorting, debaters spend vast amounts of time and energy preparing for days-long tournaments. And why wouldn’t they? Elite debaters frequently attend elite colleges en route to elite jobs in politics, policy, law, finance, and academia. For this reason alone, it is worth taking a hard look at the modes of thinking and communicating debate engenders.
Debate Under Meritocracy
I’m a first generation college graduate. My mom, an RN working long hours to raise three of us, had neither insight into the intricacies of college admissions nor the resources to hire tutors or enroll me in the kinds of after-school activities selective colleges care about. I applied to one school, Youngstown State University, because proximity made it somewhat familiar and because it offered an incredibly generous scholarship program. After graduation, my high school friends began to leave town. The prospect of starting at YSU suddenly felt threatening and opaque, the opposite of what had preceded it.
These emotional dynamics might explain why, during the weeks between graduation and the national tournament, I experienced my first bout of academic tunnel vision. Nationals presented one last opportunity to prove my competitive worth, to cling to a sense of self that was rapidly dissolving. The impulses kept my nose to the grindstone.
The 2012 national tournament asked us to debate whether “Stand Your Ground laws are a legitimate expansion of the doctrine of self defense.” Equipped with an encyclopedic knowledge of the evidence, I toggled round-to-round between disputing theories of rights forfeiture, the empirical credibility of difference-in-differences models, the deterrence effect of gun ownership, and the wisdom of the duty to retreat, all abstracted from the viscerality and ubiquity of American gun violence.
Though I came to view Stand Your Ground laws as pernicious, I had no qualms doing their PR when assigned the affirmative position. Nor did I spare feelings in seeking to convince the judges of my superiority. One round in particular I was especially dominant, including a moment where spectators had to stifle laughter at some clever, condescending barb at my opponent. To my current revulsion, I felt no compunction making her feel intellectually small. In virtually any other communicative context, my behavior would be rightly viewed as repulsively antisocial.6 Yet debate, a pipeline to meritocratic prestige, encourages it. Knowledge—of a technocratic detail, an empirical analysis, a legal concept—is useful insofar as you can wield it in a spectacle of intellectual and social domination.7
At the national tournament, rapid, pithy chattering carried over into common areas and lunch rooms. Sometimes debaters settle down, as if resurfacing from a fugue state, but often they don’t—conversations can remain fast, intense, and exacting. In debate, and especially in its most elite contexts, the communicative norms that attend competitive success also attend high social status.
The upshot is that debate’s language games and mental states have staying power. Students who master them are often encouraged to further hone them in college, graduate school, and professional life. Meritocracy rarely asks us to pump the brakes; to think deeply, slowly, and carefully; to admit mistakes; to sacrifice personal shine in the name of community or collaboration. Many people do these things, but they generally accomplish them by stepping outside the system of meritocratic competition or temporarily suspending its norms. Debate tends to collapse these key distinctions, reducing the need for anything that isn’t atomized and amoral intellectual sparring.8
Birthright Citizenship, Revisited
We finished eighth in the country in 2012. For the longest time, that fact was central to my self-understanding. I’ve moved around a bit since college. I left my nationals trophy in a Brooklyn dumpster a few years ago.
I like to think I’ve moved on from that deep urge to be seen as the smartest, the wittiest, the best. My concern is that many haven’t or, more precisely, that there are too few structural norms asking them to. Those suggesting the original meaning of the Fourteenth Amendment is unclear have adopted an iconoclastic position, and they have heretofore communicated their views in non-academic fora. Appalled no less by the apparent weakness of the work than by its moral ramifications,9 scholars have presented rigorous rebuttals.
One response to these responses precipitated this writing because it reminded me of high school debate: more elaborate work is forthcoming; our critics have either misunderstood or misrepresented us; we didn’t say things we actually did;10 we did say things we actually didn’t.11
None of this verbal wrangling would be necessary if the dispute hadn’t started on X with a now totally abandoned claim about pre-existing scholarship before proceeding to the New York Times editorial page. If the move had been to do slow, careful work vetted by the academy rather than attempt to make a splash in the midst of ongoing litigation, all this sparring would be unnecessary. But to my eyes, goal posts are getting shifting as verbal gymnastics do far too much argumentative lifting. This is bad form for a scholarly discipline. It is on all fours with high school debate.
Tenured academic positions are one of the few high-prestige jobs left that not only let their occupants depart from the norms of instrumental reasoning but ask for something more. Against that backdrop, there is no excuse not to leave our shiniest trophies behind in favor of slower, deeper work.
Legal scholar Joel Sati has persuasively argued that the term “illegalized” is preferable to “undocumented” on both descriptive and normative grounds.
As of this writing, not a single court has sided with the administration, and the particularly sharp words of one judge prompted the thus far unsubstantiated claim that an “entire literature” supported the notion that birthright citizenship was not contemplated by the Fourteenth Amendment’s original meaning.
There’s a lot going on in this piece I think misguided.
Indeed, the CFR published a report in January of 2013 arguing drone warfare should be made more humane while the NSDA adopted a national tournament resolution asking high school students to litigate whether “[t]he benefits of American drone strikes against foreign targets outweigh the harms” that same year.
It’s undeniable that debate is shot through with misogyny. For my part, I have no doubt that my behavior as a competitor was informed by gender-based discrimination. Yet it’s also hard to isolate the precise extent to which that was true, not because I think myself somehow impervious to misogyny but because the entire tournament was characterized by efforts to perform intellectual domination and condescension.
The term “spectacle” is especially applicable to Public Forum debate, previously called “Ted Turner” debate after one of the NSDA’s major alums and the founder of CNN. Public Forum includes “crossfires,” scheduled periods of direct engagement between competing debaters. CNN’s namesake debate show “Crossfire” was nothing if not a spectacle.
Again, one might object that consent to participate in the activity, coupled with transparency about the activity’s competitive premises, transforms the character of otherwise unacceptable behavior. It’s perfectly acceptable for me to knock somebody unconscious in a regulated boxing match; less so at Whole Foods. I’d respond as I did above: the norms and practices of debate are porous. Debate encourages certain bad behaviors that continue to be rewarded (and therefore replicated) in many consequential, post-debate contexts.
Sally Rooney made a similar observation in a 2015 essay worth quoting at length:
This kind of social landscape was different from anything I’d encountered before. For one thing, its structure was very clear. Popularity was not a mysterious arrangement of personal loyalties within a social code I didn’t understand: it was essentially just the same thing as success. Successful people were popular. You knew whose jokes to laugh at, because they were the people who gave the best speeches and said the cleverest things. I found this transparency encouraging somehow. The allocation of points in a debate was something clear and definable, and its effects on the distribution of social capital seemed clear and definable too. The more I observed the structure of public debates, the more I thought: I could do this. I could be successful and popular too.
As Professors Evan Bernick, Paul Gowder, and Anthony Michael Kreis write, “[a]dvancing arguments that would strip children of citizenship they would otherwise be entitled to under the Constitution's text, despite the overwhelming body of historical evidence, judicial precedent, and unbroken tradition, is not a trivial project.”
See the paper linked directly above, pages 7-8 at note 24.
See, e.g., this thread from Professor Jed Shugerman.