Loyal Opposition

This debate points to a very old, very thorny issue of republican government. Put aside the particulars of the man who shot Scalise, a Capitol Police officer in his security detail, and two bystanders. It has never been a settled question what is and is not loyal opposition in our system of government. How do we oppose the current wielders of authority while affirming that their possession of that authority is legitimate?

The answer to this will differ according to the system of government. In a monarchy where the sovereign claims authority to rule from God, any criticism of the king or queen could be construed as seditious. And indeed, disobeying or even criticizing the European kings of the Middle Ages often ended in a particularly grisly death. But the United States threw off the shackles of kingly government nearly 250 years ago, and the question of dissent in a republic—where the people rule according to a written constitution—is a different matter. The people need to be free to debate, which suggests a wider latitude for rhetorical excess. But how much license does that give people to challenge the constitutional authority itself?

This tricky matter often manifests itself in subtle ways. Consider, for instance, the terms that the two sides have lately used to describe themselves when they are in the minority. The progressive left has taken to calling itself the “Resistance.” This is an inflammatory term, as most people will understand it as an allusion to the French Resistance of World War II, which was opposing the Nazi regime and its puppet government in Vichy. But consider, in turn, the term “Tea Party.” It should go without saying that the Nazis were several orders of magnitude worse than the royal governors of the 1770s. But there is an underlying suggestion in both terms that the times call for something beyond lawful protest. The Boston Tea Party, after all, was an act of vandalism meant to protest an immoral and illegitimate governing authority.

One could argue that all rhetoric of this sort is seditious. If the opposition party is supposed to remain loyal to the constitutional framework, which has duly conferred power on the majority party, it would seem that denying the majority’s legitimacy is tantamount to repudiating the Constitution itself.

A perusal of our history shows that our leaders have, at times, taken such a strict view. In 1793-94, “democratic societies” began springing up across the country, sympathetic to the cause of the French Revolution and often highly critical of the George Washington administration, in particular the policies of Secretary of the Treas­ury Alexander Hamilton. Federalists thought these groups were a prelude to armed rebellion. President Washington complained of these “permanent” bodies as “pernicious to the peace of society,” even as he acknowledged “the right of the people to meet occasionally to petition for, or to remonstrate against” public acts. The partisan press similarly vexed the Federalists during the John Adams administration, and the Sedition Act of 1798 endeavored to silence the publishers who dared criticize the government. In the earliest days of the republic, the line between legitimate and illegitimate opposition to the state was highly contested.

These challenges would rise again over the years, particularly during wartime. During the Civil War, the Lincoln administration suspended habeas corpus, and was not above shutting down critical newspapers. The Woodrow Wilson administration clamped down hard on the rights of political dissenters during World War I, going so far as to throw some critics in jail. In both these cases, wars inspired fierce dissent from a minority, and the government in turn declared some forms of opposition to be illegal.

Over the course of our history, we have reached a broad consensus on what the government should and should not do with regard to dissent—and the verdict is generally accepted that these particular actions were a blot on the records of the presidents who undertook them. This is all to the good.

Still, we face a question of manners in our civic life. Granted that the state should not use its authority to regulate dissent, should the people themselves police certain kinds of opposition language?

There is no doubt a visceral inclination to do so after Scalise’s shooting, but this temptation should generally be resisted. Instead, we should show forbearance towards political rhetoric, even if we find it noxious. Ultimately, a republic in which the people rule requires ample opportunity for debate. It is silly to expect this to happen in a high-toned fashion. The American electorate is not the Oxford Union. Far from it. History has shown that our debates are raucous and unruly, but they nevertheless can be constructive. For better or worse, it is how we converse with each other, and how we govern ourselves.

We would do well to remember the spirit of the First Amendment. The text forbids Congress from making any law abridging the rights of free speech, and it was motivated by skeptics of the new Constitution, who wanted to ensure that rules about discourse were not mandated by a distant, impersonal authority. Similarly, we should not want an impersonal sovereign like “society” to mandate what we can and cannot say.

Instead, we might look to the guidance of Thomas Jefferson. In his first inaugural address, Jefferson called for an end to the partisan vitriol of the preceding decade, but he simultaneously preached tolerance of opposing views. “We have called by different names brethren of the same principle,” he said, so we should be charitable towards one another. Nevertheless, we should not endeavor to censor those whose dissent is intemperate or extreme. “If there be any among us who would wish to dissolve this Union or to change its republican form,” he said, “let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”

This is an ethos that should govern not only the state, but each and every one of us. We should be as tolerant as possible of political speech. A robust discourse is a necessary precondition for self-government. Some people are inevitably going to use the public space to indulge in dark, malicious rhetoric. This is regrettable, but it is hard to see how it can be otherwise in a free republic.

Jay Cost is a senior writer at The Weekly Standard.