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.

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.

"No scholar of the American constitution or American history can afford not to read this book—at least twice. Professor Kahn has written a wide-ranging postmodern study of Marbury v. Madison, both as it stood in John Marshall’s day and what it means as we move into the twenty-first century."—Herbert A. Johnson, Law and History Review

"A brilliantly innovative and provocative work of pathfinding dimensions."—Robert M. Ireland, Journal of the Early Republic

"This important and splendid book argues that the rule of law is not fact but appearance—a construction of social imagination and a standpoint for the interpretation of politics and history. Fascinating and deeply original, the book applies the insights of cultural studies to constitutional scholarship."—David Luban

"Kahn's critical exploration of politics as law and action, and of the edgy relationship between the two, advances political anthropology's view considerably. His fluent, convincing argument carries Dworkin's exercise in Law's Empire a step further—and its greater strength, I would suggest, lies in the very fact that Kahn does, indeed, take a specific text to analyze specifically the American political imagination. And yet his subject matter is so inventively framed that it achieves much more. I think that Kahn's provocative work will be well received and long discussed within many disciplinary arenas—not least, anthropology."—Joan E. Vincent, professor of anthropology emerita, Barnard College, Columbia University

"In this imaginative book, Kahn applies modern cultural theory to the idea, or 'myth,' of the rule of law."—Choice

"Kahn is clearly a scholar of great intelligence and creativity."—Scott D. Gerber, Journal of American History

"[The Reign of Law] would be a very appropriate but challenging required text for use in honors undergraduate and graduate seminars in jurisprudence, political theory, and constitutional law. . . . Professor Kahn is to be commended for his very well written, meticulous analysis and argument."—Edward M. Wheat, History: Reviews of New Books

ISBN: 9780300066791
Publication Date: May 29, 1997
320 pages, 6 1/8 x 9 1/4
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