The Loyal Opposition
Gerken, Heather K., The Yale Law Journal
Loyal opposition is one of democracy's grandest terms. Once used to shield the party out of power from accusations of treason, (1) it now describes the institutionalization of opposition, most famously Great Britain's elevation of the minority party leadership to a shadow cabinet. (2) Termed the "greatest contribution of the nineteenth century to the art of government," (3) it is a stand-in for some of the best practices in democracy: making space for dissent, knitting outsiders into democracy's fabric, attending to the institutional dimensions of integration. It perfectly captures one of the basic aims of democracy: maintaining an opposition that is loyal.
The term is not often used in American debates because (we think) we lack an institutional structure for allowing minorities to take part in governance. (4) On this view, we've found our own way to build loyalty while licensing opposition, but it's been a rights-based strategy, not an institutional one. We don't give democracy's outliers a formal role in the government, so the story goes, but we ensure that they can influence the debate and take part in the decision through the First Amendment and the Fifteenth. (5) In the United States, rights are cast as the means for achieving racial and political integration, and diversity has become its measure.
The story isn't just wrong. It's also not nearly as attractive a tale as we make it out to be. An unduly narrow focus on rights, combined with some genuinely ugly history, has led us to endorse a thin, even anemic vision of integration. And it's led us to adopt a measure of democratic legitimacy that involves relatively little power for those it's supposed to empower.
There were times when tolerance of dissent was sufficient and guaranteeing the right to vote was enough. Indeed, there were times when protecting the opposition's right to speak was an act of statesmanship, and the mere existence of a diverse decision-making body was a small miracle. Today, however, these concessions to democracy's outliers have become too easy for those in the majority. Perhaps easy isn't the right word. Maybe the problem is that they've become too convenient. A cynic might even worry that these concessions do as much to legitimize power as to share it.
Fortunately, we do, in fact, offer more to racial minorities and dissenters than the right to speak and vote. We do, in fact, have a strategy for institutionalizing opposition. We do, in fact, have a form of loyal opposition in this country, one that is distinctively American and arguably more robust than its counterparts elsewhere. It's called federalism. (6)
The trouble is nationalists don't recognize federalism (or its homely cousin, localism) as a form of loyal opposition. They don't recognize decentralization to be either a means of integrating or a measure of integration. They don't understand devolution to be a gesture of loyalty toward the opposition whose loyalty we in turn demand. Instead, nationalists view federalism with suspicion at best, largely because they pride themselves on showing the greatest loyalty to democracy's outliers. The nationalists' case against decentralization, after all, rests largely on the shameful role federalism has played in legitimating the oppression of racial minorities and dissenters. Nationalists grasp federalism's ability to facilitate certain forms of opposition. But they have grave doubts as to whether those forms of opposition are loyal. As a result, when nationalists think about the grand constitutional project of integration, they privilege rights over governance, courts over politics, participation over power, outsiders over insiders, and minority rights over minority rule.
That is a mistake. Proof of that mistake cannot be fully canvassed in a short essay, although I have sought to do so elsewhere. (7) An essay, at best, can raise questions. In keeping with this Feature's theme of "federalism as the new nationalism," (8) this one raises two. …