American Exceptionalism, Popular Sovereignty,
and the Rule of Law
PAUL W. KAHN
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
1See P. Kahn, The Reign of Law: Marbury v. Madison and the Construction of