The Loyal Opposition
In my consitutional history class, we've recently been discussing the Alien and Sedition Acts of 1798. Aside from the legal question of whether the acts were constitutional (clearly not under contemporary free speech jurisprudence, less clear then), we pondered what would drive an American administration to go so far as to jail people for what, in many cases, amounted to rather mild criticism.
The best explanation offered was that in the context of a growing crisis with France, including an undeclared naval war and widespread fears of a French invasion of America, many Federalists simply did not view Jefferson and his supporters as a loyal opposition. The loyal opposition, in simplistic terms, would consist of those who while critical of the administration, remain loyal to the country and its fundamental principles. And so this theory would suggest that so long as the majority views their critics as still loyal to the union and its basic principles, they will not abuse their power in attempts to suppress their opponents. When they view their critics as disloyal, or covertly treasonous, the gloves come off.
As a very general theory, this seems pretty well supported. It is usually only when a dissident group is thought to pose a danger (real or hysterically imagined) that we see the government push the limits of its power to suppress dissension (the Red Scare, Japanese internment, etc.). This in no way excuses these abuses of power, but merely offers an explanation of why some episodes of dissent trigger oppressive measures, and others do not.
It might also explain, in part, the tendency of more extreme partisans to try and paint their opponents as "disloyal." Thus the rhetoric that Bush must be defeated in order to "restore democracy" or that a Kerry election is a "victory for terrorists." It might explain why liberal dissent over the war on terror is labelled (as earlier as 2002) as "the disloyal opposition."
Of course the great difficulty in assigning such labels, even removing the partisan instinct for exaggeration and distortion, is that there is almost certainly going to be disagreement not only about the substance of particular issues, but even whether those issues are the sort of fundamental principles that a loyal opposition must adhere to. On the easy side would be the most mundane issues of zoning law or the size of a municipal bond issue, etc. It is very unlikely that a debate over such things will provoke charges of disloyalty to the union.
On the opposite side would be something like overt treason, such as passing classified secrets to a wartime enemy. Almost everyone would agree that such acts, almost by definition, constitute disloyalty to the union.
Of course, this leaves a huge gap in the middle. Some gray area issues lean heavily toward the "loyal opposition" side. Take an issue like affirmative action. It seems we can all agree that one's position on affirmative action programs, even if grounded on constitutional rather than policy grounds, does not trigger questions about a person's loyalty to America. One can usually disagree and criticize the government on that issue without raising attacks about undermining our society. Note, howver, that the most passionate rhetoric even on this issue will invoke acknowledged fundamental principles like liberty and equality, and highlight the tension between them. Those who feel most strongly about affirmative action are the ones most likely to charge their opponents with undermining one of these fundamental principles.
And many issues in the gray area are just ripe for such charges. Bush supporters see the war on Iraq as a key element in the War on Terror, which is a widely acknowledged fundamental battle for American values. Thus criticism of the war on Iraq is a criticism of the War on Terror, and thus constitues disloyalty to preserving America, democracy, etc. In contrast, many Bush critics attack the premise that the war on Iraq is a key element in the War on Terror, while pledging their fidelity to the later. They might even go a step further, and argue that the war on Iraq is a distraction that is hindering the War on Terror, and thus it is Bush and his supporters that are the ones undermining American values.
Where do I come down on this? Well it is more of a descriptive analysis than a normative one, but I will say this: American administrations do not have a very good track record for restraining the temptation to use a broad brush in painting opposition as disloyal. The Alien and Sedition Acts, the Japanese interment and McCarthyism all stand out as particularly regrettable episodes in American history. This might suggest that so long as the issue is in the gray area, short of any signs of legitimately treasonable conduct, it might be best to err on the side of restraining the rhetoric and the temptation to suppress, even when the passions and pressures of the wartime context urge otherwise.
Anyhow, while I was thinking about this topic, I ran across an interesting passage from Ambrose's D-Day. This is an account of the political activities going on in Washington on D-Day. As you read it, think about analogies to the 9/11 Commission, whether Democrats are going too far in their calls for accountability and trying to turn it into an electoral issue, and whether Republicans are just stalling to avoid embarrassment:
At the Capitol building, the politicians were going about their business. On D-Day, the House voted 305-35 to proceed with the courts-martial of Maj. Gen. Walter Short and Rear Adm. Husband Kimmel in order to fix responsibility for the Pearl Harbor disaster. "It's all politics," one congressman confessed. The Democrats (who opposed but felt they could not vote against the resolution, which they had been delaying for two years) charged that the Republicans were seeking to make a campaign issue in an effort to embarrass President Roosevelt. The Republicans (who sponsored the resolution and were unanimous for it) charged that the Democrats were trying to delay any possible disclosures until after the presidential election. Both charges were true.
An interesting question, left unanswered by this quick account by Ambrose, is whether there were charges levelled against Republicans of disloyalty, of undermining the war effort, and the like. I wouldn't be surprised.