Paradox of Self-Amendment by Peter Suber crisis, then their self-serving decision will not have the desired effect. But we should not underestimate the ability of judges to make their acts of judicial amendment sound like inevitable consequences of universally acknowledged principles of existing law. This type of self-amendment may be clarified by a distinction. Judicial review may make the final decision of the highest court "legal" per se; but on the other hand, the rules that constitute the judiciary and the rules it interprets may allow us to consider some final decisions of the highest court "illegal". In the formal case, courts may always protect their prerogatives by throwing up legally valid rules superior to any that might repeal them, including formal amendments. In the latter case, courts might in some cases be protecting their prerogatives only by revolutionary acts that are subsequently accepted. Courts that have enjoyed respect in the past will not find it difficult to make their revolutionary decisions look as valid as their lawful decisions,[Note 23] which will contribute greatly to their subsequent acceptability. But under the acceptance theory, the best reasons may fail to win actual acceptance, while the flimsiest succeed. The distinction between legal and illegal decisions is blurred by the power of acceptance contingently to validate or invalidate any decision regardless of its conformity to prior law. The distinction retains some firmness only because conformity to prior law is a major influence on actual, contingent acceptance. Less dramatic, but logically similar, types of self-amendment of the power of judicial amendment occur whenever a court overrules or modifies rules pertaining to its jurisdiction, especially when the old or new rule of jurisdiction might have affected the case in which the new rule was announced. One might even argue that judicial review itself, hence also judicial amendment, was seized by federal courts in Marbury v. Madison in an act of judicial amendment (hence, self-amendment). In all these cases, self-amendment may be objectionable as usurpation, opportunism, or political grasping, but not as paradox or the self-application of a rule of change. Note, however, that judicial amendment cannot always be explained as usurpation or its variants. Even if one disbelieves that a power of judicial amendment is inherent in judicial powers of interpretation, application, and review, one may point to "innocent" causes such as good faith error of law, good faith disagreement between courts over time, circular majorities within single courts, and the changing membership of courts. The latter is a favorite theme of the legal realists who believe that the decisions of a court are the products of the personal moral and political preference of judges, disguised by legalistic rationalization. Even if one denies legal realism in general, impressive empirical evidence exists that the social and economic background of judges correlates with their opinions on a wide range of controversial cases.[Note 24] If one wishes to minimize the risk of abuse and usurpation in judicial amendment, one may insist that it be kept unofficial and surreptitious, forcing judges to disguise it with legalistic rationalization —which one hopes will not always be easy. Similarly, the power of a jury to nullify the law is lawful, even venerable, but is kept infrequent in practice by the device of jury instructions that, in effect, declare their own exclusivity. This raises serious doubts about the rigidity of the distinction between official and unofficial rules of change.[Note 25] Judicial amendment of the AC may not be strict self-amendment, but has it ever occurred? Every time part of a state AC is struck down for violating the federal constitution, judicial amendment of an AC may have occurred. However, such nullification would only comprise judicial amendment in any significant sense if the violation of the federal constitution were doubtful or clearly invented. Filling gaps and silences in ACs is also common, but not a strong type of judicial amendment. One of the few cases in which a court seems to have changed the terms of an AC by interpretation was In Re Todd, 208 Ind. 168, 193 N.E. 865 (1935). The Indiana constitution stated that amendments are adopted when they receive the affirmative votes of a "majority of the electors". For 83 years this phrase was interpreted by mean the majority of the electors eligible to vote. The Todd court changed the interpretation to the majority of those voting on the amendment. A subsequent case, Swank v. Tyndall, 266 Ind. 204, 221, 78 N.W.2d 535, 542 (1948) declared that the holding of Todd "in substance amounted to a change in the Constitution itself", and refused to apply the Todd rule retroactively. Notes 1. Benjamin Hoadly, Bishop of Bangor, "Sermon Preached Before the King," 1717, p. 12. I have not been able to find a more complete citation for this famous remark. This form is taken from John Chipman Gray, The Nature and Sources of Law, Macmillan, 2d ed., 1921, at p. 125. 2. The power of judges to change rules of law is unquestioned for the rules of common law, although specifying just when modification or overruling is permitted by stare decisis is difficult. See Richard A. Wasserstrom, The Judicial Decision: Toward a Theory of Legal Justification, Stanford University Press, 1961, Chapters 3 and 4; and Peter Suber, "Analogy Exercises for Teaching Legal Reasoning," Journal of Law and Education, 17, 1 (Winter 1988) 91-98. However, even if stare decisis is not fully applicable to constitutional adjudication, which is often heard, judges have similar powers to interpret, apply to concrete circumstances, and in a broader sense, to qualify and modify to whatever extent is acceptable or accepted. A theory of constitutional adjudication may limit these powers, but the legality of the powers is not found in theories but in the history of what has been held lawful. Also like common law judges, judges who interpret the constitution can obviously change the law by reinterpretation to the extent that, as Edward Corwin put it, "the constitution is the judicial version of it —constitutional law." Edward Corwin, "Constitution v. Constitutional Theory: The Question of the States v. the Nation," American Political Science Review, 19 (1925) 290-304, at p. 303. 3. See e.g. Frederic R. Coudert, "Judicial Constitutional Amendment, as Illustrated by the Devolution of the Institution of the Jury from a Fundamental Right to a Mere Method of Procedure," Yale Law Journal, 13 (1904) 331-65. The theme was very common during the New Deal era. See e.g. Thomas M. Steele, "Re-Making the Constitution," Connecticut Bar Journal, 7 (1933) 102-28; Frederick M. Davenport, "The Supreme Court Makes the Constitution March," Boston University Law Review, 14 (1934) 752-65; Charles S. Collier, "The Expanding Meaning of the Constitution," Wisconsin Law Review, 11 (1936) 323-45; D.R. Richberg, "Need for Constitutional Growth by Construction or Amendment," Kentucky State Bar 108