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Rejecting the conventional idea that constitutional thought has been shaped by political and social events, Kahn argues that the history of constitutionalism has been driven by logic, not experience. He brings this perspective to the familiar events of constitutional history, including the founding, the crisis of Dred Scott, Lincoln's Gettysburg Address, the rise of the Lochner Court, the assault of legal realism, and the rise of the countermajoritarian difficulty. Kahn describes a series of conceptual stages in constitutional history. He shows that the founders' project of constitutional construction was displaced by originalism, which was in turn displaced by the idea of an evolving constitution. The turn to community in contemporary constitutional theory, Kahn argues, represents the final step in this development. At this stage, the theory and practice of constitutional law split apart. This separation is the inevitable result of the effort to do the impossible: reconcile history and self-government.
The authority of the state, Kahn concludes, is bound to history in a way that makes government by the people impossible.
|Introduction: Constitutional History as Discourse||1|
|Ch. 1||To Make a Constitution||9|
|Ch. 2||Maintenance and the Organism of the State||32|
|Ch. 3||The Evolving Unwritten Constitution||65|
|Ch. 4||The Forum of Science in the Constitutional Order||97|
|Ch. 5||The Locus of Will in Modern Constitutional Theory||134|
|Ch. 6||Community in Contemporary Constitutional Theory||171|
|Conclusion: The End of Constitutional Theory||210|