Democracy and Legal Change. By Melissa Schwartzberg. New York: Cambridge University Press, 2007. 240p. $85.00.

Extract

This book provocatively inquires into whether some aspects of law should be regarded as beyond the purview of democratic procedures. On Melissa Schwartzberg's account, “entrenchment,”—her term for those aspects of law thought not to be susceptible to revision by democratic majorities or to constitutional amendment by supramajoritarian procedures—damages democracy, despite its prevalence in modern history. She argues that entrenchment risks sedimenting law and deadening active democratic participation because it places crucial issues beyond debate. In resisting entrenchment, she aligns herself with Jürgen Habermas's project of invigorating democratic constitutionalism as a “living project.”