Research
Books
- Democracy and Legal Change. New York: Cambridge University Press (Cambridge Studies in the Theory of Democracy), 2007. [Paperback edition, 2009.]
Subject of a commissioned critical exchange (with Corey L. Brettschneider) in Perspectives on Politics 6: 361-365 (2008).
Since ancient Athens, democrats have taken pride in their power and inclination to change their laws, yet they have also sought to counter this capacity by creating immutable laws. In Democracy and Legal Change, Melissa Schwartzberg argues that modifying law is a fundamental and attractive democratic activity. Against those who would defend the use of "entrenchment clauses" to protect key constitutional provisions from revision, Schwartzberg seeks to demonstrate historically the strategic and even unjust purposes unamendable laws have typically served, and to highlight the regrettable consequences that entrenchment may have for democracies today. Drawing on historical evidence, classical political thought, and contemporary constitutional and democratic theory, Democracy and Legal Change reexamines the relationship between democracy and the rule of law from a new, and often surprising, set of vantage points.
- Counting the Many: Supermajority Rule and Its Alternatives. Under contract, Cambridge University Press (Cambridge Studies in the Theory of Democracy).
Articles
- "Shouts, Murmurs, and Votes: Acclamation and Aggregation in Ancient Greece." Journal of Political Philosophy. Forthcoming.
- "Supermajority Rules and Arbitrariness." Social Science Information. Special issue on collective decision-making rules. Forthcoming.
- "Institutions and Majority Rule in Online Communities." With Henry Farrell. Ethics and
International Affairs. Winter 2008, 22:4, 357-367.
- "Voting the General Will: Rousseau on Decision Rules." Political Theory. June 2008, 36:3, 403-
423.
Scholars exploring the logic of Rousseau's voting rules have typically turned to the connection between Rousseau and the Marquis de Condorcet. Though Condorcet could not have had a direct influence on Rousseau's arguments about the choice of decision rules in Social Contract, the possibility of a connection has encouraged the view that Rousseau's selection of voting rules was based on epistemic reasons. By turning to alternative sources of influence on Rousseau -- the work of Hugo Grotius and particularly that of Samuel Pufendorf -- a moral, and not purely epistemic, logic of rules governing collective decision making emerges. For Rousseau, as for Pufendorf, the proper choice of voting rule can elicit the appropriate attitude of an individual with respect to the decision of the whole, and can support the morally significant activity of acknowledging error upon discovering that one has voted against the general will.
- "Jeremy Bentham on Fallibility and Infallibility." Journal of the History of Ideas. October 2007,
68:4, 563-585.
Jeremy Bentham's arguments regarding fallibility and infallibility comprise a fundamental and distinctive dimension of his democratic theory. Writing against the assertion of infallibility in religious, political, and legal contexts, Bentham claimed that authorities encouraged a popular belief in their own infallibility as a means of corrupting the people's faculties of judgment. In so doing, rulers were able to secure their own interests against the public welfare and to inhibit the possibility of utilitarian reform. Such arguments may have influenced John Stuart Mill's well-known discussions of fallibility and infallibility in works including On Liberty.
- "Vox Populi, Vox Dei, Vox Sagittae." With Forrest Maltzman and Lee Sigelman. PS: Political
Science and Politics. April 2006, 39:2, 297-301.
- "Athenian Democracy and Legal Change."American Political Science Review, May 2004, 98:2,
311-325.
The ancient Athenians regarded their ability to modify their laws as a fundamentally democratic trait; indeed, the faculty of "pragmatic innovation" was well known throughout the Greek world and was widely viewed as a key advantage that Athens had over its rival, Sparta. The Athenian commitment to legal change endured despite disastrous consequences at the end of the fifth century, a comprehensive revision of the laws, and the complication of legal procedure in the fourth century. In an apparent paradox, however, the Athenians also used "entrenchment clauses" to make certain laws immutable. Through analysis of entrenched laws and decrees, it is shown that the innovativeness that made Athens enviable also made it a difficult ally; entrenchment enabled the Athenians to make its commitments more credible. Although today entrenchment is typically used to protect crucial constitutional provisions, such as rights, in the ancient world it served a strategic purpose.
- "Rousseau on Fundamental Law."Political Studies, June 2003, vol. 51, 387-403.
Reprint: Rousseau and Law. Thom Brooks, ed. Aldershot: Ashgate, 2005.
How can we understand Rousseau's use of entrenched fundamental law? Given that absolute sovereignty is of paramount importance to Rousseau, and given that he rejects the possibility of binding the future, fundamental law might be viewed as a paradoxical restraint on the sovereign. However, through a consideration of their substantive form, and of the procedural mechanisms of enactment and abrogation, these laws are shown to serve an 'enabling' purpose. For Rousseau, fundamental law does not constrain the sovereign will, but is constitutive of the sovereign or transforms its operation with respect to morality and justice. Fundamental law should be understood to enhance the capacity of the sovereign; this reading also explains the most familiar limitation that does not take the form of a fundamental law, the double-generality requirement.
Other Writings
- "Ratification Rules and Our New (and Old) Constitutional Convention." Contribution to symposium on Sanford Levinson's Our Undemocratic Constitution for The Good Society. Forthcoming.
- Book review of Democratic Rights (Princeton, 2007), by Corey Brettschneider, as part of
commissioned critical exchange. Perspectives on Politics 6: 361-365 (2008).
- "English Bill of Rights." Encyclopedia of American Civil Liberties (4 vols), Paul Finkelman, ed.
New York: Routledge, 2006.
Works in Progress
- "Democracy, Judgment, and Juries."