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

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