Democratic Deals: A Defense of Political Bargaining. With Jack Knight. Cambridge, MA: Harvard University Press, 2024. In Press.
Bargains—grand and prosaic—are a central fact of political life. The distribution of
bargaining power affects the design of constitutions, the construction of party coalitions,
legislative outcomes, judicial opinions, and much more. But can political bargaining be
justified in theory? If it inevitably involves asymmetric power, is it anything more than
the exercise of sublimated force, emerging from and reifying inequalities?
In Democratic Deals, Melissa Schwartzberg and Jack Knight defend asymmetric
bargaining, showing that, under the right conditions and constraints, it can secure
political equality and protect fundamental interests. The challenge, then, is to ensure that
these conditions prevail. Drawing a sustained analogy to the private law of contracts—in
particular, its concepts of duress and unconscionability—the authors articulate a set of
procedural and substantive constraints on the bargaining process and analyze the
circumstances under which unequal bargaining power might be justified in a democratic
context. Institutions, Schwartzberg and Knight argue, can facilitate gains from exchange
while placing meaningful limits on the exercise of unequal power.
Democratic Deals examines frameworks of just bargaining in a range of
contexts—constitution-making and legislative politics, among judges and administrative
agencies, across branches of government, and between the state and private actors in the
course of plea deals. Bargaining is an ineradicable fact of political life. Schwartzberg and
Knight show that it can also be essential for democracy.
Winner of the 2016 Spitz Prize (International Conference for the Study of Political Thought) for the best book in liberal or democratic theory published in 2014.
Although supermajority rules historically emerged as a substitute for unanimity, today they are tasked with solving the problems of majority rule. In this work, I examine the origins and justifications of supermajority rules in the ancient, medieval, and early modern world, and then critically evaluate their use in contemporary political life. Supermajority rules are thought to be desirable insofar as they promote institutional stability, ensure that proposed changes have the support of a broad-based consensus, and protect vulnerable minorities. Yet their consequences for democracy are more complicated, and indeed more pernicious, than is usually appreciated. Through a defense of “complex majoritarian” institutions, I demonstrate that the aims of supermajority rule — most importantly, durable constitutionalism — can be attained without the normative costs associated with their use.
Democracy and Legal Change. New York: Cambridge University Press (Cambridge Studies in the Theory of Democracy), 2007. [Paperback edition, 2009.]
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, I argue 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, I seek 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.
Melissa Schwartzberg 