The reign of law : Marbury v. Madison and the construction of America

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. 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. Contents 7 Preface 9 Introduction: In America the Law Is King 13 Part I: Studying the Rule of Law 21 1. Marbury and the Historical Origins of the American Legal Imagination 21 2. An Archaeological Approach to Law 30 Part II: The Temporality of Law 61 3. Political Time: Law and Revolution 61 4. Locating the Self in Political Time 87 Part III: The Rhetoric of the Judicial Opinion 115 5. The Rule of Law and the Suppression of the Subject 115 6. The Strategies of Law 146 PART IV: Law and Representation 189 7. The Representative Character of Law's Appearance 189 8. Representing the Opinion of the People 218 Conclusion: Power and Knowledge in the Rule of Law 242 Appendix: William Marbury v. James Madison, Secretary of State of the United States 253 Notes 271 Index 311

In this ground-breaking book, Kahn uses modern cultural theory to investigate America’s most profound political myth: the belief that the rule of law is rule by the people. Kahn explores the elements of the myth, the rhetoric of law that sustains the myth, and the world of meaning the myth creates. He shows us that law must be central to religious, anthropological, and philosophical studies of American life.

Paul W. Kahn, Robert W. Winner Professor of Law and the Humanities at Yale Law School, is the author of Law and Love: The Trials of King Lear and Legitimacy and History: Self-Government in American Constitutional Theory, both published by Yale University Press.