In my column “Venezuela and Common Sense” last week, inspired by Tom Paine, I wrote:
The freedom-loving among us will have to form an opposition. Not a resistance, but a loyal opposition — a coordinated effort to offer the country a governing alternative and to present the case for it at every possible point and in every possible medium. As Paine wrote, “I mean not to exhibit horror for the purpose of provoking revenge, but to awaken us from fatal and unmanly slumbers, that we may pursue determinately some fixed object.”
This occasioned questions. What do you mean, Danielle, by the distinction between a loyal opposition and resistance? Are you throwing shade on the No Kings movement?
I owe you answers!
The second one is easy. No, I’m not throwing shade. I appreciate the peaceful, joyful assemblies that lift up the message “No Kings.” I am suggesting, though, that a second thought should follow from the first. If we’re serious that there should not be kings, then the most important thing we can do is “Save Congress.”
This was the core of my argument last week. Our Constitution is out of balance. Philosophy and experience both render the truth that freedom depends on government, by the people and for the people, that passes through a legislature with genuine authority to set a nation’s direction. Such a legislature must have meaningful independence from the executive, even while operating in partnership with it.
Today, in the United States, the executive has overwhelmed the legislative branch. This problem built throughout the 20th century, from Franklin Delano Roosevelt on, and has continued to grow. It has reached the point where it is breaking the fundamental design.
When nearly every day brings new executive orders that reorganize the economy, and when the executive is building an unchecked global campaign of intervention, we no longer have government by the legislature. This means we no longer have government by law, or government by the people. Instead, we have government by the arbitrary will of one individual. That individual’s will might sometimes be lawfully imposed and sometimes unlawfully, but it is always arbitrary — law subsumed to an individual perspective, not law emanating from the deliberations and syntheses of the people’s representatives.
Years ago, I visited then Labour Party Leader Ed Miliband in his office at the British parliament. In golden letters over the door was a large sign: “Leader of the Opposition.” In our system, we talk instead about the Minority Leader. The Democratic Party is currently a cluster of factions — the Blue Dogs, the Justice Democrats, the Majority Democrats, American Promise leaders, and so on. Likewise, across civil society, a variety of nonprofits seek to build new communities of Americans that bridge ideological divides and stand up for freedom. This fragmentation keeps everybody part of a political minority and puts no one in the position of leading an opposition meant to set our Constitution to rights.
The question: Can these many factions and organizations coordinate? Can they coordinate around the specific mission of restoring balance in our Constitution — whatever other policy goals they might have?
Resistance seeks to interrupt things. It aims to capture and shift attention, block roads, impede the unjust work of government officials, litigate against the unlawful, boycott companies that reinforce negative political directions. Much of that we do need — as long as participants adhere to lawfulness and nonviolence.
But opposition takes positive steps to define and advance an alternative approach to governance.
Wherever Congress asserts its own authority and finds a pathway back to legislating, a cross-partisan opposition should celebrate and support those occurrences. Three have recently emerged:
Last week the Senate voted to advance legislation requiring the president to seek approval from Congress before taking further military action in Venezuela. Now it moves to the House.
A bipartisan coalition in Congress seeks to replace the president’s executive order imposing $100,000 fees on businesses for each H1-B visa holder they employ with a reasonable legislative solution to various problems with the visa program.
And despite a previous history of divergent interests, patient advocacy groups, supported by civil society organizations, have found a path toward coordination to build a bipartisan coalition in Congress ready to maintain the nation’s investment in science.
These are three examples of Congress doing its job, claiming its authority, and governing the people, on behalf of the people.
A loyal opposition, drawing from across the political spectrum, will celebrate these efforts, two of them relatively quiet, and support their leaders.
A loyal opposition would also reinforce such support by returning to and lifting up the recommendations of the House of Representatives Select Committee on the Modernization of Congress.
Lastly, a loyal opposition would tackle the challenge of the corrupt crony capitalism that is now at the heart of our governance.
The Constitution prohibits emoluments, foreign and domestic, but without defining them. For instance, it prohibits the president and other federal officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without the consent of Congress. New legislation could define emoluments, establish disclosure and divestment requirements, and provide for independent enforcement. There is also work to do on the rules around how government contracts are awarded.
A loyal opposition does not need very many positive, proactive positions to advance. It just needs enough for a broad and fractured field to coordinate around, even while disagreeing on many substantive matters of policy.
What is needed, in other words, is not a full political platform, but clarity about a pathway to an alternative method of governance — one that secures government of the people, by the people, and for the people in our new 21st century conditions.
Opposition takes positive steps to define and advance an alternative approach to governance.
I respectfully submit that it's a mistake to look back to the British. We should follow the example that you set long ago in thinking more deeply about the words and wisdom of John Adams and James Wilson.
You (much better than most, including especially Akhil Amar) recognized and highlighted the vital importance of John Adams. Your book "Our Declaration" highlighted important truths about Adams's crucial role in the process that culminated in the writing and ratifying of our Constitution. Adams was crucial in encouraging, inspiring and crafting the first constitutions of individual states and the Declaration of Independence of the people of the United States. As you highlighted in other writing, James Wilson was instrumental in confirming the connection between our Constitution and our Declaration.
Adams and Wilson didn't (and I think they wouldn't) ask how to define a loyal opposition because they emphatically rejected the kind of constitution under which a "loyal opposition" made sense. A loyal opposition is part of the British Constitution. A loyal opposition is no part of the U.S. Constitution.
The British Constitution suffered from two fatal flaws that the U.S. Constitution corrected. The British Constitution does not exist as a written document that governs absolutely all government. Instead of a governing written constitution, in the British Constitution, Parliament (mere men) is supreme and sovereign. Whatever laws Parliament made were the supreme law of the land. The essence of the British Constitution (at least in the 1700's and 1800's) was a government of men and not of laws. That particular form of "the rule of law" was exactly what Adams and Wilson and men like them rejected in 1776, in 1780 and in 1787-1788.
Under such the British Constitution, a "loyal opposition" to the party in power makes sense because the people constituting Parliament are at the pinnacle of the British Constitution. In the U.S., all public servants are subordinate to and must support our Constitution, so only "loyal supporters" of our Constitution (not loyal opposition to any party in power) make sense.
Adams, Wilson, Madison, Jefferson and Washington emphatically rejected the supremacy (sovereignty) of Parliament and the concept of an unwritten constitution. So they would reject the idea of a "loyal opposition" to any mere party that controlled any mere government.
Moreover, Adams showed everyone how to make a government of laws and not of men. In the Massachusetts Constitution in 1780 Adams expressly emphasized that he designed "a government of laws and not of men." But he didn't merely say it. He proved it and made it the law of the land (Massachusetts). Adams caused the Massachusetts Constitution to be ratified by the people of Massachusetts. Ratification by the people established and emphasized the peculiar power of the constitution (expressing the will of the People) over all the men in government.
Madison, Washington, Hamilton and the rest of the Philadelphia Convention followed where Adams led. That was the primary principle documented in the Preamble, Article VI and Article VII. "We the People of the United States" acted as the first legislative body, the supreme legislative body and the only legislative body for the U.S. in 1788 to "ordain and establish this Constitution for the United States of America" to "secure the Blessings of Liberty to ourselves." "The Ratification" by the People of "nine States" by June 21, 1788 is what caused "the Establishment of this Constitution." The People declared and established "the supreme Law of the Land," and the People made our Constitution the paramount law in the supreme law of the land. The People required all legislators and "all executive and judicial Officers, both of the United States and of [all] States" to swear "to support this Constitution" every day in all official conduct. So none of the men who wrote the Constitution and ratified it would call themselves part of any "loyal opposition" of any mere ruling party. Instead, they would say they were (and we should say we are) loyal supporters of our Constitution.
All the foregoing was documented in our Constitution in 1788. So in 1803 Chief Justice John Marshall and SCOTUS in Marbury v. Madison also emphasized that ours is "a government of laws and not of men." Mere support for or opposition to any mere government shouldn't be anyone's focus. Our system is meant to be focused primarily on support for our Constitution. I would think that The Renovator would focus on renovating (renewing) support for our Constitution.
Emolument -- a salary, fee, or profit from employment or office. Just what's so hard about that? Surely Congress can know it if they see it whatever their divvied-up factions look like.