By Melissa Schwartzberg

Considering historical Athens, democrats have taken delight of their strength and inclination to alter their legislation, but they've got additionally sought to counter this skill through growing immutable legislation. In Democracy and criminal switch, Melissa Schwartzberg argues that editing legislations is a primary and engaging democratic job. opposed to those that might guard using “entrenchment clauses” to guard key constitutional provisions from revision, Schwartzberg seeks to display traditionally the strategic or even unjust reasons unamendable legislation have often served, and to focus on the regrettable results that entrenchment can have for democracies this present day. Drawing on old proof, classical political proposal, and modern constitutional and democratic idea, Democracy and criminal switch reexamines the connection among democracy and the guideline of legislations from a brand new, and sometimes mind-blowing, set of vantage issues.

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The logic of rights foundationalism – that the priority of the constitution is to protect rights first, and democracy second – should not lead us to place undue confidence in a given constituent assembly’s capacity 23 24 Defenders of so-called “positivist” accounts – rejecting nontextual limits on the scope of Article V – are, as James Fleming has noted, uncomfortable bedfellows; see in particular Bruce Ackerman (1991:14–15) and Robert Bork (1990: 214– 16), cited in Barber and George, ed. (2001: 99).

Yet empirical accounts of constituent assemblies clearly demonstrate the ubiquity of bargaining, logrolling, and issuing of threats. Framers have, as Jon Elster has emphasized, both institutional and individual interests in seeing their power protected, some of which may hold over from the ancien regime, ´ and regularly seek to secure these interests in the construction of constitutions. Even equal constitutional rights of political participation may reflect power inequalities subject to exploitation by framers, through, for example, the protection of official languages.

Instead, Aristotle offers a critical appraisal of the inclination of democracies to rely on decrees, providing us with theoretical insight into the ancient view of democracy as a regime that relies on the use of particular and changeable norms. Because my primary focus in this work is on the theoretical underpinnings of the creation of institutions regulating and restricting legal change, the choices that legislators made in designing 29 18:1 P1: SBT 0521866529c01 CUNY706/Schwartzberg 0 521 86652 9 Printer: cupusbw February 1, 2007 Democracy and Legal Change these institutions are of primary importance.

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