Yale Law School's Paul Kahn Speaks on 'Political Theology' and Healthcare Reform

When Paul W. Kahn spoke as part of Yale SOM's Convening Yale series on April 26, he began by warning the audience that his approach is not widely embraced at Yale Law School, where he has taught since 1985.

Many of his colleagues at the Law School, he said, are essentially social scientists, who gather data, making use of economics, psychology, and other disciplines, in order to propose legal reforms. By contrast, "I stand for a line of humanistic inquiry into the law," he said. "I am less concerned with legal doctrine and legal institutions than with the world of meaning that sustained and is sustained by our legal practices and beliefs."

Kahn describes his area of interest as "political theology": the underlying set of beliefs in the American "civil religion." He said, "Law is not something that simply guides us from the outside; it is also an expression of who we are."

This perspective sheds light on the intense controversy over the healthcare law, currently being examined by the U.S. Supreme Court, Kahn said. The court, he pointed out, is not considering any policy question regarding the law; instead, it is deciding whether the commerce clause of the constitution allows the federal government to compel individuals to buy health insurance. Essentially, it is examining the law as if it were a question of liberty. The case is informed by a long history in which the court ruled first on the freedom to make labor contracts without government interference and then on the freedom of the body, in abortion and gay rights decisions. "The contemporary healthcare debate is yet another effort to shift the site of contested liberty," he said. "The new site arises at the intersection of contract and the body."

"Many elements of our civil religion are on display" when the Supreme Court rules on such a case, Kahn said. The black-robed justices act as prophets, conduits for the original, sacred text of the nation's founding: the Constitution. The Constitution, in turn, is linked to the American Revolution; its power is drawn from the violence and sacrifice of the Revolutionary War.

The connection between the Revolution and the Constitution is key to understanding the healthcare controversy, Kahn said. Because of the centrality of that sacrifice, the American civil religion venerates the ability of the citizen to choose to sacrifice his or herself. As a result, any law that seems to place the body under the law, even for good reasons, is anathema to some.

"The rebellion against healthcare insurance is not about freedom as an escape from the obligations of citizenship, but freedom as a condition for the realization of the meaning of citizenship," he said. "Only understood in this way, can we understand how an insurance mechanism that promises so much to so many, nevertheless seems to many to put the very life of the nation at stake."