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

By Paul W. Kahn. New Haven: Yale University Press, 1997. Pp. xi, 306. $35.00,

cloth.

In noting Thomas Paines observation that, In America the Law is King,

Paul W. Kahn suggests that while the law evokes many ideas, when Americans

thought of the law 200 years ago, they had in mind a specific notion of law as the

product of their own actions. Their conception of law was law determined by a

constitution. It is this conception of the rule of law as part of a deliberative

process that frames the American consciousness. The Reign of Law explores what

it means to believe in this view of the rule of law.

Kahn argues that legal scholarship is split between those that take a

traditional, doctrinal approach and those that apply non-law techniques of analysis

to the study of law. For the former, law is analyzed with the methods and

techniques that are part of the law; these scholars uncritically accept doctrinal

scholarship as the proper approach to the study of law. The latter group of

scholars, many whom are non-lawyers, is highly critical of the doctrinal approach

to the study of law. They apply the techniques of other disciplines, especially

economics, to analyze and critique the law, as well as to analyze particular laws.

In Kahns view, both groups ignore what should be at the center of the study of

law: a critical examination of the rule of law as an expression of our popular

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culture (p. xi). Both groups ignore what it means to believe in the rule of law

(p. xi).

The authors thesis is that the rule of law can only be understood as part of

the cultural experience of the people. Kahn accordingly employs what is referred

to as an archaeological (a cultural, scientific) approach to explain what it means to

believe in the rule of law, focusing upon the Supreme Courts 1803 decision in

Marbury v. Madison as the legal event central to understanding laws rule.

Marbury was the defining moment in the American experience for the rule of law

according to Kahn. The Courts opinion stated as fact that the government of the

United States was a government of laws, not men (cited in Kahn, p. 246). The

Court also assumed, as part of the rule of law, the authority to review the

constitutionality of legislative and executive actions.

Kahn argues that the rule of law develops out of the historical events and

political conflicts of the people. For America, the events and conflicts surround

the defeat of Adams and the Federalists and the election of the Republicans and

Jefferson in 1800. In the last few weeks before Adams was to leave office, he and

the Federalists had nominated, confirmed, and installed John Marshall (Adams

secretary of state) as Chief Justice of the Supreme Court, passed the Judiciary Act

of 1801, and installed sixteen new federal judges. In the last few days alone,

Adams and the Federalists nominated and confirmed forty-two new justices of the

peace for the District of Columbia, including William Marbury, whose commission
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was never delivered by John Marshall, at the time, secretary of state and chief

justice.

When Jefferson took office not one federal judge was a Republican. And

membership in the Federalist Party was often used to empanel federal juries. Then

Marbury, a Federalist, petitioned the Supreme Court, and its chief justice, John

Marshall, to direct Jeffersons secretary of state, James Madison, to deliver

Marburys commission. The federal courts were to say the least part of the body

politic. They were part and parcel of the ongoing political conflicts. To some,

America could have just as easily been referred to as a government of men not law.

The federal judiciary obviously had not yet acquired the image of that branch of

government that is insulated from the rule of men.

Jefferson viewed the 1800 election results as the Second American

Revolution. For Jefferson, revolution ruled and political conflicts were to be

settled with political action not law. Since the election was a revolutionary event,

the natural political action to follow was to strip opponents of their power. So the

Republicans canceled two terms of the Supreme Court, repealed the 1801

Judiciary Act, threatened justices with impeachment, and, when the Court finally

met, Madison did not even respond to the Courts order to show cause why it

should not issue a mandamus directing Madison to deliver Marburys commission.

The most important aspect of Marbury in Kahns view is the Supreme

Court as the institution that maintains the rule of law, not the concept of judicial
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review, which is only one part of the rule of law. But since the actual outcome of

Marbury was just one of many possible outcomes, Kahn argues that the rule of law

cannot be viewed as fact. It is a matter of appearances. As such, he considers the

rule of law to be our greatest political myth. And Marbury maintained that myth,

arguing that in America the law not men rules. To believe in the rule of law is to

imagine laws rule. Laws rule is a fabrication of our political imagination.

Marbury was the deliberate effort of the Court that framed the American political

imagination under the rule of law. To imagine the rule of law according to Kahn is

to imagine: 1) laws rule as permanent; 2) that law is not the rule of men; 3) that

law is a system of representation; and 4) that law rules through violence.

Much of the narrative of The Reign of Law is devoted to analyzing the

principal claim that the rhetorical strategy employed in judicial opinions is adopted

so the people will imagine the rule of law. The core of the book is occupied with

interpreting how the Supreme Courts opinion in Marbury framed the decision so

it conveyed the appearance of the rule of law. Kahn analyzes the rhetorical

strategies of the Court, arguing that throughout the opinion, the Court maintained

the appearance of laws rule.

The Reign of Law is not economic history. Nor does it convey any specific

lessons for the study of economic history. It is not about the impact of law upon

the economy, nor upon economic behavior. Simply put, it contains the authors

argument that the rule of law is all about appearance rather than fact and his focus
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upon the Supreme Courts role in maintaining that appearance in Marbury. It is a

provocative book that challenges the reader to question how he or she thinks

about what it means to believe in the rule of law. The Reign of Law should be an

enjoyable and worthwhile book for those interested in legal and political history.