Book Review

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. Essentially, he contrasts the role of revolution and political action on the one hand with the practice of rule of law through the courts and judicial review on the other. It is in revolution that new political foundations are laid—revolution as a constitutive act of the sovereign people is the bedrock of a new polity. The rule of law accepts that origin and through the decision of cases, shapes and changes the initial understandings to meet new and unforeseen changes. Judges exercising the rule of law draw their legitimacy from their representation of the people, a representation established in judicial behavior as ostensibly objective expounders of the rule of law. Political leaders, on the other hand, have authority predicated upon a direct authorization from the people. The two forms of authority come into conflict "at the edges," most pointedly when the U.S. Supreme Court faces what modern law has come to identify as "political questions."	1
In Marbury Chief Justice Marshall assumed to the Court the right to declare the "opinion of the people" in regard to the fundamental law of the Constitution. This identifies the Court's interpretation as representing the original constituting act of the sovereign people in establishing a Constitution. By creating the concept of rule of law, he replaced the politics of revolution with recourse to judicial opinion, and the resulting rule of law, Kahn suggests, "may be our deepest political myth" (xi). The Marbury decision not only shapes our understanding of rule of law, but it also pre-structures the analytical framework through which Americans view both judicial review and the role of judges (4, 11). This rule of law becomes a matter of faith on the part of the citizen that is "bought into" as much as is the tradition of our revolutionary origins (76–82, 185–89). Yet revolution and law differ in that revolution demands responsibility of the citizen, a responsibility grounded upon moral judgments; the rule of law demands loyalty to the accumulated corpus of rules that shape society in the wake of one revolution and defer the coming of the next revolution (76–82, 185–89).	2
Along the way Kahn asserts weaknesses of the rule of law. He notes that law's procedures not infrequently substitute misleading evidence for fact, citing the Supreme Court's rejection of Justice Brennan's statistical arguments on the death penalty and the dissent's medical evidence concerning the health of bakers in the Lochner case. The rule of law thus is a matter of appearances rather than reality (131–32). Courts also subtly convert efforts at political (revolutionary?) change into matters seemingly within the rule of law. The rule of law makes the Constitution what the Supreme Court says it is, and it guarantees permanence to the Constitution, because the rule of law demands stability (169–72). These arguments are deftly made and well supported, but they need not be accepted to gain value from reading this book.	3
Kahn's study of Marbury is perhaps most significant for the legal historian in providing new insights into the Mandamus Case. For example, he suggests a novel understanding of the role of the "Opinion of the Court," instituted by Marshall at the inception of his chief justiceship. He points out that an authored opinion, whether in the majority or a dissent, and whether or not persuasive, is still one person's viewpoint. The very anonymity and organizational nature of the Court's opinion mean that it is more difficult to attack since it is insulated from the personality or reputation of any one justice. At the same time, it gains permanence since no single justice can be seen to be dominant in its rendition; conversely, no justice need stand as its champion if it is subsequently seen to be in error. Finally, the unanimity of a Court opinion emphasizes the point that the voice of the Court is institutional—a rule of law and not of men, even if those men or women happen to be justices (105–15). Another useful perception is the Supreme Court's use of jurisdiction as the instrument for delineating the line between political questions (outside the realm of judicial expertise) and all other matters that are appropriate for judicial resolution. This permits the Court to expand or contract its authority over marginal political matters but to do so while still theoretically remaining within the rule of law (155–60). These portions alone justify a legal historian's attention to this volume.	4
It is the major theme of this book that will draw both praise and sharp criticism. At the basic level, it appears that Kahn views the rule of law as an abstraction that inhibits political freedom and pays inadequate attention to individual rights. In its emphasis upon stability, slow change, and formally adduced findings, the rule of law creates the appearance of legality despite a series of social and political injustices—or at least, so the argument seems to proceed. Yet, Kahn clearly identifies the rule of law as a mode of structuring government and society between revolutions, and in this the United States over the past two centuries has been remarkably successful. The rule of law may be a thing of appearances—or an abstraction—yet it is a remarkably useful instrument to sustain the body politic and, indeed, to postpone a revolution.	5
At numerous points throughout the volume, Kahn refers to Christian theology as providing a useful parallel to the rule of law abstraction. Further thought in this direction might well have led him into a more persuasive analysis of the rule of law. The late Karl Rahner laid stress upon what he deemed the human orientation toward a transcendental belief in God (Karl Rahner, Foundations of Christian Faith: An Introduction to the Idea of Christianity, trans., William V. Dych [New York: Crossroad, 1986]). In effect Rahner moves one step beyond the logical structure of theology to suggest that there is a type of an abstraction or, as he phrases it, an area of mystery that plays a dominant role in man's search for an eternal being beyond himself. In effect, Kahn's defining the rule of law as a matter of "appearances," or, as I have phrased it, an "abstraction," challenges us to move beyond constitutional law and even beyond constitutional practice, to look at the fascinating but little explored area of American constitutional usages and customs. These are matters that, like British constitutional conventions, play a critical role in our national political ethos. Admittedly, these are abstractions drawn from the panorama of national memory that we call history. Yet, where would American constitutionalism be today without George Washington's declination of a military dictatorship at Newburgh in 1783? Do we not owe political stability to John Jay's refusal, as governor of New York, to manipulate matters in 1800 so that a Federalist dominated lame-duck legislature would vote against the election of Thomas Jefferson? These and countless other historical events provide abstract rules for the exercise of government and the responsible behavior of citizens with the framework of a rule of law, which itself may be an American constitutional convention. Yet abstractions, or "appearances," are as real as, and in many cases more important than, the formal contours of government. As Saint Paul wrote his congregation at Corinth, "we look not to things that are seen but to those things that are unseen; for the things that are seen are transient, but the things that are unseen are eternal" (2 Corinthians 4:18).	6
In a remarkably thorough study Kahn has overlooked the one monumental failure of the rule of law since John Marshall's day—the American Civil War. That conflict manifests the rise of moral responsibility, construed in vastly different ways by the competing regions, in regard to the issue of human slavery and the law that supported that institution. Faced with the sharply divisive issue that began to preoccupy Chief Justice Marshall in his last years, the American federal union shattered, and arguably a new revolutionary consensus was reached either at Appomatox in 1865 or in Washington with the ratification of the Fourteenth Amendment in 1868. If Marshall's rule of law dissolved into armed conflict in 1861, how was it revived, modified, or replaced by the constitutional amendments of 1865 to 1870? Of course this is a book Kahn did not undertake to write—but he should.	7
Herbert A. Johnson University of South Carolina

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