Democracy and Legal Change
Cambridge University Press, 2007 M04 9
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 theory, 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.
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follow I present a series of historical accounts of the
attractive democratic traits that are embodied by and reaffirmed
immediately due to religious disputes that emerged in the late
substantive reform would not occur until well into the nineteenth
were ultimately interested in preserving their own sphere of
the ability of the people to modify their constitution was
primary value of entrenchment is as a means of bringing
few today defend amendment on such grounds Indeed in the
propensity to redirect in light of new information and to
of law rather than popular sovereignty49 Yet as Josiah Ober
commitment to flexibility which could easily have been jettisoned
bulwark against tyranny as both Kelsen and later Rawls suggested
entrenchment of the second reading and retained the malleability
if it involves completely distorting the meaning of entrenched laws
Habermas wishes to acknowledge is surely correct18 Our
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Página 124 - I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men, indeed, as well as most sects in religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele, a Protestant, in a dedication tells the Pope that the only difference between our churches, in their opinions of the certainty of their doctrines, is, 'the Church of Rome is infallible, and the Church of England is never in the wrong.
Página 124 - On the whole, sir, I cannot help expressing a wish that every member of the Convention who may still have objections to it would, with me, on this occasion doubt a little of his own infallibility and, to make manifest our unanimity, put his name to this instrument.
Página 127 - I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union must as necessarily be a compromise of as many dissimilar interests and inclinations.
Página 140 - Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in...
Página 93 - Man, is not Subject to the Civill Lawes. For having power to make, and repeale Lawes, he may when he pleaseth, free himselfe from that subjection, by repealing those Lawes that trouble him, and making of new ; and consequently he was free before.
Página 119 - Resolved that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto.
Página 135 - Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the American character than to say nothing about it in the Constitution.
Página 82 - Surely every medicine is an innovation, and he that will not apply new remedies must expect new evils; for time is the greatest innovator...
Página 162 - The constituent assembly will draft a democratic constitution which will establish for the participating states a governmental structure of federal type which is best adapted to the eventual reestablishment of German unity at present disrupted, and which will protect the rights of the participating states, provide adequate central authority, and contain guarantees of individual rights and freedoms.