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Chapter 7 American Exceptionalism, Popular Sovereignty, and the Rule of Law P A U L W. K A H N TO UNDERSTAND the power and character of American exceptionalism, we have to look in a direction that political scientists and internationallaw scholars often fail to notice. We have to examine the intimate relationship among American political identity, the rule of law, and popular sovereignty . When we do so, we find a set of concepts associated with the eighteenth-century project of revolution. These concepts continue to have a surprising contemporary vitality. This vitality is less a matter of political theory than one of political symbolism; it lies in the dimension of rhetoric, not logic. The critical elements of the American political imagination were put in place very early: the connection of Revolution and Constitution.1 Revolution is an act by the popular sovereign through which it declares its birth by acting out its freedom. Constitution is the product of the popular sovereign forming itself by imposing an institutional shape upon itself. This produces the absolute bedrock of the American political myth: the rule of law is the rule of the people. Participation in the Constitution and the laws that carry out the constitutional scheme is participation in the popular sovereign. Law had long been thought to express the will of the sovereign . In America, this simple proposition survives entry into modernity, such that law now means constitutionalism and the sovereign means the people. These are the elements of an American civic religion, with which any global regime must contend. Outside the United States, claims of national uniqueness and of the politics that supports such claims bear a history of dangerous and destructive political experiences. In Europe, this was the language of fascism; in Latin America, the language of authoritarianism. Abroad, the appeal of a global rule of law lies in the promise of protection against the pathologies of internal domestic politics. A transnational rule of law suggests a 1 See P. Kahn, The Reign of Law: Marbury v. Madison and the Construction of America (1997). P OP UL AR SO VE RE IG NT Y, RU LE OF LAW 199 kind of internal depoliticalization.2 The United States, however, has not shared this experience of political pathology. Ours remains a triumphal history. Not a perfect past, but one that is seen as a story of progress leading toward an enduring ideal. Our moments of political failure have become elements of a progressive narrative of self-realization. The consequence of this is that the United States remains the quintessential, modern nation-state in an increasingly postmodern world. Our very modernity makes the transition to the contemporary, international order so difficult. Of course, other nations have made or are making this transition, but they have often done so under the severe shock of external events and internal failure. I am not suggesting that American self-perceptions are true as a matter of fact. There is plenty to criticize in the American past, as well as in its present—plenty of exclusions, of inequalities, and of plain evil. Facts are not the issue, but rather the imaginative conditions that support a powerful belief in the American myth. My aim is neither to justify the myth nor to explain the historical conditions that made it possible: a combination of Protestantism, exile to the wilderness, Enlightenment thought, and the birth of markets.3 In this essay, I want only to describe the conceptual architecture—the shape of the belief—of our national political project. Once that description is in place, we will more clearly see the ground of the difficulty of American participation in the contemporary phenomenon of the globalization of the rule of law. American exceptionalism is rooted in the powerful and totalizing character of the American experience of politics. Politics, here, refers not to a factional politics of preference and policy, but to the deep structure of the imagination when we understand ourselves as participants in a common, transgenerational project of creating and maintaining the state. Politics, in this sense, is not distinct from law; nor is it distinct from war. Indeed, law and war—or at least the possibility of war—are two of our most characteristic forms of the experience of the political. A Classical View of the Modern Political Imagination All modern Western states—as well as those that model themselves on the West—have claimed to be democratic: this has been the age of “people’s republics...


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