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The Reign of Law

The Reign of Law: Marbury v. Madison and the Construction of America

Paul W. Kahn
Copyright Date: 1997
Published by: Yale University Press
Pages: 320
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  • Book Info
    The Reign of Law
    Book Description:

    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 ofMarbury v. Madison-still the greatest of our constitutional cases. Kahn shows thatMarburyis 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.

    eISBN: 978-0-300-14776-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xii)
  4. Introduction: In America the Law Is King
    (pp. 1-6)

    Alexis de Tocqueville, one of the earliest and most insightful observers of American political culture, described the judicial bench and bar as the American aristocracy. Although many of the early European immigrants came to the colonies for religious reasons, by the time of the Revolution, lawyers had displaced ministers as the political and social leaders of the new nation. Like no people before them, Americans turned to secular law to ground their political community and to establish their own identity.¹

    Lawis a broad term, but the Founders’ generation had a very particular idea of law in mind. The central...

  5. Part I: Studying the Rule of Law

    • 1 Marbury and the Historical Origins of the American Legal Imagination
      (pp. 9-17)

      “The government of the United States has been emphatically termed a government of laws, and not of men.”¹ So the Supreme Court declared in 1803, in one of the earliest and still the greatest of constitutional law cases:Marbury v. Madison.

      What was emphatically termed in 1803 is now an article of faith. Constitutional government means the rule of law. Theorists may worry about how to reconcile majority rule with the rule of law, but the popular imagination accepts both as fact. Rule by the people and the rule of law are equally fundamental, if not identical, propositions in the...

    • 2 An Archaeological Approach to Law
      (pp. 18-46)

      This chapter introduces both the conception of politics and the methodology that I pursue in the rest of the book. I start with a sketch of the rule of law. The rule of law is not an established political condition but a way of understanding political experiences that is always in a contest with competing understandings. The conflict between Jefferson and Marshall that I described in the first chapter is an example of this conflict. Jefferson’s skepticism about law is rooted in an understanding of politics that emphasizes what I shall call political action. I shall follow the sketch of...

  6. Part II: The Temporality of Law

    • 3 Political Time: Law and Revolution
      (pp. 49-74)

      Jefferson’s First Inaugural Address includes a short description of what he terms the “essential principles of our Government... which form the bright constellation which has ... guided our steps through an age of revolution and reformation.” Nowhere in this list of principles does the rule of law appear. Instead of recognizing an age of law following upon the turmoil of the Revolution, Jefferson describes a continuity between periodic elections and revolution: they are different methods of accomplishing the same end. He speaks of “a jealous care of the right of election by the people—a mild and safe corrective of...

    • 4 Locating the Self in Political Time
      (pp. 75-100)

      The conflict between law and revolution reaches its deepest expression in their opposing attitudes toward time. The revolutionary looks to the future. He or she sees the present as a means to a new or remade future. The past is valuable—if at all—only insofar as it teaches something about the task of political reconstruction. Ever the revolutionary in his own self-understanding, Jefferson reflects, near the end of his life, on the relation of the Constitution to the present generation’s political task: “[W]e were novices in [the] science [of self-government]. Its principles and forms had entered little into our...

  7. Part III: The Rhetoric of the Judicial Opinion

    • 5 The Rule of Law and the Suppression of the Subject
      (pp. 103-133)

      Marburyimmediately announces that we are in a world of appearances. The opinion begins with a reference to an earlier order of the Court, requiring Madison “to show causewhy amandamusshould not issue.”¹ The secretary of state, however, makes no appearance. He offers no showing. In these opening lines, we are obliquely reminded of the political battle surrounding the federal courts in the first years of the Jefferson administration.

      Madison refuses to speak to a Court constituted by the Adams regime. His attitude toward the Supreme Court is similar to his attitude toward Marbury himself, whose authority to...

    • 6 The Strategies of Law
      (pp. 134-174)

      Marburyis both the opinion the Court has and the opinion the Court creates. This combination of having and creating is captured by the linkage of perception and speaking in the text. The opinion locates itself in a world of sight and sound. The Court looks and listens. Evidentiary and procedural rules determine what may appear before the Court. They establish the evidence, those shadows of reality that constitute the controversy to which the Court will address itself. The Court perceives in these shadows a legal world—a world of rights, violations, and remedies. It perceives the law already in...

  8. Part IV: Law and Representation

    • 7 The Representative Character of Law’s Appearance
      (pp. 177-205)

      A brief summary of the argument so far will help frame the remaining issues. I began by looking at the largest structures of the legal imagination. The rule of law is a way of organizing and understanding political experience. It is a state of mind before it is an order of the state. Central to law’s rule is a particular organization of the community’s consciousness of itself as a single, temporally extended phenomenon. The unity of the rule of law—despite many laws, it is a single system of rule—expresses the temporal unity of the community as both an...

    • 8 Representing the Opinion of the People
      (pp. 206-229)

      In the previous chapter, I argued that the contest of power in our democratic political order is a struggle among conflicting claims to represent the people. No person or institution is the people. “The people” is an argument, an assertion of power, a claim to rule. The people show themselves in and through a multiplicity of representations. The sovereign people is an object of faith that creates a field of controversial claims of representation. Every such claim provides a point for interpretation. In their total compass they constitute the interpretive debate that characterizes our political life.

      The competing grounds of...

  9. Conclusion: Power and Knowledge in the Rule of Law
    (pp. 230-240)

    “The people” have displaced God as the source of political authority. A political claim to represent the people does not relate to a claim to represent God as a true claim to a false claim. Both are foundational beliefs for systems of appearances. Each is a matter of faith. The only truth either conveys is the truth that we live our lives among appearances that structure and give meaning to experience at every level, from the personal to the political.

    To reject the idea of truth for that of appearance does not imply that all such claims are simply post...

  10. Appendix: William Marbury v. James Madison, Secretary of State of the United States
    (pp. 241-258)
  11. Notes
    (pp. 259-298)
  12. Index
    (pp. 299-306)