The loyal opposition.

• Author: Gerken, Heather K.
• Position: Federalism as the New Nationalism

INTRODUCTION

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. First, is it time for nationalists to reassess what we owe democracy's outliers? Views on what the "loyal opposition" is owed have evolved over time in Great Britain. The question is whether our thinking ought to change as well. The battles to make the First and Fifteenth Amendments meaningful were hard fought and important. They are not the end of our democratic journey, however.

In the abstract, the opportunity for dissenters to voice their concerns and vote their consciences seems like it ought to be enough. The moment power enters the equation, however, these democratic gestures seem less grand. The iconoclastic dissenter is an archetype in constitutional theory. But he exercises his First Amendment rights as an outsider, not an insider. He is licensed to speak truth to power, not with it. He may object to power's exercise, but he's rarely able to influence it. We've been told that our willingness to recognize the opposition's speech rights is a sign of our tolerance, and so it is. But a cynic might also point out that the main theories undergirding the First Amendment largely reflect the majority's interests and often legitimate the majority's power.

So, too, the right to vote--while profound and important--loses some of its normative oomph when one starts to do the math. The right gives democracy's outliers a chance to exercise a proportionate share of power in governance. That is why diversity--the notion that decision-making bodies should mirror the polity from which they are drawn--has become the touchstone for democratic legitimacy, the measure of integration, the sign that democracy's outliers have been treated fairly. But that benchmark is also a statistical guarantee of the majority's power. The nationalists' strategy for minority "empowerment" thus relentlessly reproduces the same inequalities in governance that minorities experience everywhere else. On the issues that divide us, it consigns minorities to the status of perpetual losers. That's a tempting option for those in the majority. It ought to be less appealing to those who aren't.

None of this should be news to the nationalists. After all, rights talk has been shelled by academics of every stripe. But most of those challenges have been all in the kill. Scholars have offered a number of telling criticisms, but few have put forward readily discernible (or, at least, remotely plausible) solutions. So, too, the idea of diversity has been dented here and there. But it reigns supreme for the simple reason that nationalists haven't offered a viable alternative to this deeply intuitive vision of democratic fairness. Nationalists, in short, know that we owe our loyal opposition something more. They just can't tell us what that "something more" is.

It's worse than that, though, because nationalists consistently devalue the "something more" we do offer our loyal opposition: federalism and localism. Minority rule can be as important as minority rights to the project of integration. To be sure, most nationalists are happy to favor federalism for this or that pet issue, and some subscribe to muddle-headed and deeply naive accounts of local democracy. But that just means they are localists for the wrong reasons, and inconstant localists at that. Nationalists will not, however, acknowledge that federalism is a robust institutional complement to rights as a means of achieving integration, and diversity isn't the only touchstone for measuring it.

That would be fine, of course, if the nationalists had a better alternative. But they don't. It's all too easy to play the critic's role, simultaneously complaining about rights and diversity while trotting out outdated complaints about federalism. But if decentralization represents a distinctively American vision of the loyal opposition, can we fairly ask the nationalists to put something better on the table? This is the second question this essay addresses. To use the unduly blunt vernacular of the playground, the question is whether it's time for the nationalists to put up or shut up.

Part I defines terms, explains why both racial minorities and dissenters are properly characterized as part of the loyal opposition, and provides the set-up for the rest of the essay by loosely tracing the connection between nationalism, on the one hand, and rights and diversity, on the other. Part II discusses the first question posed by this essay: do we owe democracy's outliers something more than constitutional rights and diverse decision-making bodies? In doing so, it offers a deeply cynical, deliberately provocative account of the rights conferred by the First and Fifteenth Amendments. Part III asks the second question: what is that "something more"? It argues that federalism can serve as a robust, distinctively American strategy for institutionalizing opposition and ensuring our democracy thrives. Better yet, it is both a workable solution and a working solution--a decidedly imperfect but reasonably perfectible complement to our rights-based scheme. The essay concludes with a simple question for the nationalists: can they offer something better?

Before turning to the argument, let me offer one caveat. Nationalists sleep easily at night because they think that the First and Fifteenth Amendments are sufficient to protect and empower racial minorities and dissenters. Why bother with decentralization--which obviously involves real costs--if the current system is working just fine? I hope to unsettle that easy assumption and suggest that we owe more to our loyal opposition. Questioning the sufficiency of rights is, of course, quite different than questioning their necessity. Nothing in this essay is intended to diminish the luster of our democracy's crown jewels. To the contrary, this essay is premised on the notion that rights have laid a strong foundation for political and racial integration. It questions only what we should build on that foundation going forward.

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