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This review is from: Legitimacy and History: Self-Government in American Constitutional Theory (Hardcover)
In this book the author takes the reader through the history of constitutional theory, and describes the methods the courts and legal philosophers have used to legitimize and explain how and where the US courts derive their power to judge what is or isn't constitutionally sound policy. To do this the author goes back to the founding of the constitution and goes into how these men went about creating this republic. This isn't a history of the founding of the US, but more a philosophical history of the different theories and how they interacted in the creation of the contitution. The author discusses the Federalist papers at length as well as other competing ideas.
After looking at the creation of the constitution, Khan then goes on to discuss the different ways that the courts and theorists began to look for new justifications for the courts as time removed the the people from the revolutionary moment of creation. The author explains that as the people became more and more removed from the founders through time the courts had to find knew justification for their power. The author takes the reader from the earliest conceptual frameworks erected to fill that void of sovereign power. The main reason for this void is that as the country and people move through time they become seperated from the founding, and since the people are supposed to be the sovereign power in the country the constitution becomes more and more of a dead letter no longer relevant to the people as they move through time. The methods of retaining power for the courts change the further they move through time.
What the author does is take crisis moments or major cases that represented a new paridigm shift in the courts. He then critiques the works of those theorists who, at that time, explained (or attempt to explain) how and why the shift occurs. He takes the major works of the leading theorists of that time and shows the problems with each new theory, and how they each fail to fully explain how the court derives legitimacy from the new theory. His critiques are compelling and make for fascinating reading.
In the end the author finds that the courts have a crises of legitimacy, and this does not sit well for a reader like myself who has put a lot of faith in the potential for the rule of law to help cure some of the terrible ills of the world. His arguments are stunning in their cogency, depth and brevity. Khan is not long winded which makes the his books compelling but also a joy to read. His arguments are concise.
I will conclude by saying I have read several of this author's works now, and one thing I found fascinating was how one can see the through this work how this author began with an idea and how it has evolved over the last two decades within his mind and his work. His later books are and expansion and evolution on the ideas the author has in this work. I would suggest reading his books in the order they were written. I think it would be interesting to follow his process from the beginning to where ever it is he goes in the future.
This is a fascinating read that is sure to challenge any reader. While the work is extremely deep and requires a lot from the reader, it is not mind numbing minutia. A lot of it is abstract, but he does a great job explaining his process to his readers. Readers will get back what they are willing to put into this great book. I definitely recommend this book.
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