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In his book, Corey Brettschneider defends a "substantive" conception of democracy—a "value theory of democracy"—against purely procedural accounts of democracy. Whereas "proceduralists" seek to define democracy strictly through reference to the (majoritarian) means by which decisions are rendered, Brettschneider fears that this leaves democracy rootless, at risk of producing undemocratic outcomes. His effort at solving the problem of "democratic autophagy"—the argument that democracy will consume itself through its own procedures, as I term it in Democracy and Legal Change—is twofold. First, he specifies the values that democratic rights should reflect and preserve. Second, he argues that even nonmajoritarian institutions, such as judicial review, act in a democratic fashion insofar as they help us to ensure that our laws actually do cohere with these values. The former effort is remarkably successful. In my view, however, the latter claim is less persuasive, partially because of the difficulty inherent in translating abstract substantive commitments into law.

Thanks to Corey Brettschneider for his generous and perceptively critical review of my work and to Jeff Isaac for inviting us to discuss these issues.

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.

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.

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.