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.”

Schwartzberg skillfully and carefully works through a series of interesting case studies—including Athenian democracy, the appeal to reason in common law, the case of the American constitution, and the German Basic Law—to show that entrenchment of legal policies and principles has been bad for democracy. For her, ideal democracy should not be constrained, even by morally good legal principles and rules like the German Basic Law's protection of dignity or the U.S. Constitution's protection of civil liberties, such as free speech. Rather, the democratic ideal insists that a legitimate constitution must be at least potentially subject to revision. The book is a well-argued, careful piece of scholarship that uses case studies to great effect. In defining the question of entrenchment and offering her own take on the practice, Schwartzberg has produced a text that should become the standard-bearer against this practice and thus occupies a central place in the literature of democratic theory.

While Schwartzberg calls attention to some questionable cases of entrenchment, such as the German use of the principle of human dignity to prohibit abortion rights legislation, I am not convinced that she has shown that the practice is never justifiable. For instance, the case of Athens, which she praises for its “pragmatic innovation,” raises the question of whether the rule of law itself should be “entrenched” in a democracy. The Athenians routinely punished offenders on an ad hoc basis without regard to any code or set of standards. Yet this Athenian practice runs counter to the near-universally accepted modern understanding that the legislature must make general law. The U.S. Constitution's requirements that the legislature act generally, such as its prohibitions on ex post facto laws and bills of attainder, are a kind of entrenchment, but they are both justifiable and necessary in an ideal democracy. The fact that these specific prohibitions are not subject to revision is a not a hindrance to democracy but a guarantee of continued democratic governance.

I also disagree with Schwartzberg's contention that American democracy should be limitless in acceptance of constitutional amendments. Consider, for instance, her discussion of whether an amendment to the Constitution could itself be unconstitutional. The author argues, contrary to scholars such as Walter Murphy, that any amendment passed according to Article V procedures would be constitutionally legitimate. She acknowledges the argument that some amendments might seem contrary to the ideals of the constitution, but she worries that there is no good way to legally prohibit such amendments without placing too much power in the hands of courts and endangering democracy. In a legal positivist vein, she argues that while core constitutional principles, such as the protection of dignity, are important as a matter of morality, law is about concrete cases. Thus, if we prohibit some constitutional amendments, we risk entrenching not just an abstract principle but a potentially flawed application of that principle. For instance, Schwartzberg might fear that a constitutional amendment designed to overrule the Supreme Court's failure to sufficiently protect free speech in a First Amendment case could be struck down on the grounds that it violated the very core of the Constitution's free speech protection.

I take issue with this view on two counts. First, I think it is a mistake to tie the discussion of entrenchment to judicial supremacy, which Schwartzberg sometimes seems to do. Her argument, at points, equates the contention that legislation or amendments at odds with basic constitutional or democratic principles are illegitimate with the notion that such illegitimate laws must be prevented through a system of judicial supremacy in which constitutional or supreme courts are given the power to strike down amendments they think unconstitutional. But these are separate issues. To claim that some constitutional principles are entrenched in law is not tantamount to suggesting that the Supreme Court, or for that manner any governmental body, has an exclusive epistemic ability to interpret those principles. Moreover, the mere fact that a particular governmental body claims that legislation is at odds with basic principles of constitutional democracy does not make it so. To claim that some principles are fundamental in a constitutional democracy is not the same as asserting the authority of courts always to serve as the final arbiters of the application of such principles.

Secondly, the case for entrenchment could be substantively limited to cases about which there is not reasonable disagreement. For instance, it might prohibit legislation that repealed all rights to free political speech. Such support for entrenchment as a defense against the most extreme rights violations need not lead us down a slippery slope to more controversial policy issues. Schwartzberg rightly points out that there are some applications of general principles or rights that involve difficult legal and policy argument, and for this reason she is skeptical of arguments from what she aptly labels “democratic autophagy.” But other specific applications of these principles do not involve reasonable disagreements. Aside from the speech case, for instance, cases of constitutional amendments that would strike at the core of a legitimate democratic constitution include those that would revert to America's unfortunate history of disenfranchising African American voters. She is concerned throughout the book that entrenchment limits the participatory rights of the polity, but without entrenched guarantees of the right to participate, it is possible that democratic procedures could undermine the very right to vote for some citizens. Thus, we should not assume that anti-entrenchment necessarily enhances democratic participation.

Other examples of situations in which an anti-entrenchment position threatens to undermine the very possibility of self-government include the revocation of the right to a jury trial for citizens, which would undermine rule of law guarantees essential to ideal democracy, or the banning of a nonextremist political party, which would pose a fundamental threat to democratic government. Such paradigmatic rights violations unavoidably cut into the heart of the guarantees that democracy provides to citizens, and failure to entrench protections of these rights would imperil the legitimacy of a democratic polity, regardless of whether the rights violations were supported by majorities.

In sum, Schwartzberg has written an extremely important and well-crafted book about why democracies should be leery of entrenchment in some cases, and she has aptly demonstrated that the practice can hinder legitimate democratic change. Her account, however, risks defining democracy exclusively in terms of the ability of majorities or supermajorities to effect legal change. But majorities, no matter how large, can make policies that are themselves deeply undemocratic. There are some basic rights that are essential to a legitimate democracy, regardless of popular resistance to them.