The Reign of Law
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Marbury v. Madison and the Construction of America
Paul W. Kahn
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This is the first major work to apply to the rule of law the insights of modern cultural theory, ranging from Clifford Geertz to Michel Foucault. Starting from Thomas Paine's observation that "in America, law is king," Paul Kahn asks: What are the elements of our belief in the rule of law? And what are the rhetorical techniques by which the courts maintain this belief?
Kahn centers his exploration on the 1803 Supreme Court case of Marbury v. Madison—still the greatest of our constitutional cases. Kahn shows that Marbury is the judicial response to President Thomas Jefferson's belief that his election represented a Second American Revolution. Kahn uses the confrontation between president and Court to analyze the contrasting ways in which the revolutionary and the legal imaginations understand and give shape to political events. This contest continues today in the conflicting demands we make for a politics that preserves the past yet celebrates popular innovation.
Kahn shows that the rule of law is our deepest political myth. It carries forward a Western religious tradition in which law appeared as divine revelation. We have secularized this conception, substituting the popular sovereign for the divine and revolution for revelation. Yet law's rule continues to appear to us as a representation of the sovereign's will made apparent in an extraordinary moment of revolution.
Kahn centers his exploration on the 1803 Supreme Court case of Marbury v. Madison—still the greatest of our constitutional cases. Kahn shows that Marbury is the judicial response to President Thomas Jefferson's belief that his election represented a Second American Revolution. Kahn uses the confrontation between president and Court to analyze the contrasting ways in which the revolutionary and the legal imaginations understand and give shape to political events. This contest continues today in the conflicting demands we make for a politics that preserves the past yet celebrates popular innovation.
Kahn shows that the rule of law is our deepest political myth. It carries forward a Western religious tradition in which law appeared as divine revelation. We have secularized this conception, substituting the popular sovereign for the divine and revolution for revelation. Yet law's rule continues to appear to us as a representation of the sovereign's will made apparent in an extraordinary moment of revolution.
Paul W. Kahn, Nicholas deB. Katzenbach Professor of Law at Yale Law School, is the author of Legitimacy and History: Self- Government in American Constitutional Theory, published by Yale University Press.
ISBN: 9780300066791
Publication Date: May 29, 1997
Publication Date: May 29, 1997
320 pages, 6 1/8 x 9 1/4
