E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This Balkinization symposium grows out
of a Yale Law Journal Feature
entitled “Federalism
as the New Nationalism.”My contribution to
that symposium uses the term loyal
opposition as a loose, interpretive frame for thinking about the
relationship between minority rights and federalism.
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.Indeed, the paper offers a deliberatively
provocative take on the shortcomings of the First and Fourteenth Amendments as
tools of minority empowerment.
None of
this should be news to the academics, particular those in the nationalist
camp.Nationalists know we owe our loyal
opposition something 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 something better on the
table. To use the unduly blunt
vernacular of the playground, the essay asks whether it’s time for the
nationalists to put up or shut up.