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The Loyal Opposition

2014; The Yale Law Journal Company; Volume: 123; Issue: 6 Linguagem: Inglês

1939-8611

Heather K. Gerken,

Judicial and Constitutional Studies

The term loyal opposition is not often used in American debates because (we think) we lack an institutional structure for allowing minorities to take part in governance. 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. Rights are the means we use to build a loyal opposition, and diversity is the measure for our success. 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 also led us to endorse thin, even anemic visions 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. None of this should be news to the academics, particular those in the nationalist camp. Nationalists know we owe our loyal opposition more. They just can't tell us what that something more is. Worse, they denigrate the something more we do offer democracy's outliers -federalism. Federalism and rights have served as interlocking gears, moving our democracy forward. Yet it's been all too easy for nationalists to play the role of the critic, simultaneously complaining about national rights and national politics while trotting out outdated complaints about federalism. Those who think that decentralization should be understood as a distinctively American vision of the loyal opposition can fairly ask the nationalists to put better on the table. 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. AUTHO R. J. Skelly Wright Professor of Law, Yale Law School. I received excellent comments from the contributors to this Feature, participants in the Tom Sealy Freedom Lecture series at the University of Texas Law School, the Yale Law School 3rd Doctoral Scholarship Conference, as well as three of my favorite people and favorite readers: Bruce Ackerman, Dick Fallon, and Daryl Levinson. I am grateful for the research assistants who did excellent work for this paper and the book project behind it: Zach Arnold, Emily Barnet, Tom Brown, Alex Hemmer, Josh Levin, Erin Miller, Ben Moskowitz, Danny Randolph, and Meng Jia Yang. Thanks to the Yale Law journal editors for wonderful comments and for making this symposium possible.