Tuesday, April 22, 2014

The Loyal Opposition

Heather K. Gerken

          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play the role of the critic, simultaneously complaining about national rights and national politics while trotting out outdated complaints about federalism.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.

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