Paradox of Self-Amendment by Peter Suber life of the language of the duty, and even beyond the life of the language of the entrenchment clause. If future Rhode Islanders, living under a new constitution, were moved to another insurrection, then the 1842 rule would (if it could) rise up and remind them of their continuing duty to obey the constitution. Is this super-entrenchment effective? The Rhode Island clause was probably not meant to protect the duty to obey in anything so fragile as constitutional language. Its framers probably believed that the duty to obey the law was eternally inherent in law. They tried to say so in language that inadvertently but unavoidably left openings for someone like me to take it literally. But let us take it literally here. Under the inference model, it might not be effective. The logic of parts and wholes may require the expiration of all the parts with the expiration of the whole. But if super-entrenchment is effective, followers of the inference model must sigh in dismay to think of all the ancient obligations imposed on them of which they are unaware, and which cannot be repealed even by revolution. Under the acceptance model, the answer could be that the language is ineffective, if forgotten or regarded as superseded, but this would depend on the empirical facts of what is accepted. Some rules can be accepted as authoritative after their language has expired (see Section 14). (In Section 10.C I argue that the "binding until changed" language of the clause negates the super-entrenching effect.) J.M. Finnis has argued that the validity of such super-entrenchment follows from the jurisprudence of Hans Kelsen.[Note 31] Kelsen argued that a constitution may derive its validity from the prior constitution, by having been drafted and adopted under its AC; that constitution may in turn derive its validity from its predecessor, and so on. There will be no infinite regress because human history is finite. Sooner or later we will find a constitution that was not authorized by its predecessor, either because it had no predecessor or because its predecessor was superseded by revolution (or milder types of violation).[Note 32] Finnis asks whether the AC of the first constitution in the series, long since superseded by its own authority, is not actually valid until it is superseded by revolution. England released its former colonies by means of a statute (the Statute of Westminster) that might in principle be repealed. Would that act revoke the sovereignty of these new nations, despite the establishment of apparently autonomous constitutions in the meantime? (See Section 20.I.) Similarly, the first AC may possibly keep the authority to repeal all the amendments made under it, including the new ACs and new constitutions. Alf Ross himself noted that a sovereign cannot absolutely release a subject, at least not with a legally continuous series of acts, and that self- amendment manifests the same problem.[Note 33] Finnis concludes that,[Note 34] if, as the Kelsenian analysis entails, an earlier constitution is the source of the validity of later constitutions, there seems no reason why it should not validate a rule purporting to repeal a later constitution, whether or not the later constitution authorizes such a repeal. Finnis rightly notes that this problem is not resolved by stating, or assuring, that the two constitutions were never in effect at the same time, for the same reason that this objection does not dissolve the paradox of self-amendment: the earlier authorizes the later regardless whether they overlapped in time or not (see Section 10). This type of super-entrenchment is disarmed by any theory, such as the acceptance theory, which denies that a constitution can be validated only by its predecessor. For the acceptance theory constitutions might be validated instead by present and continuing acceptance or consent. But Kelsen and Finnis do not deny this. Finnis eventually denies Kelsen's position in favor of a variant of Hart's acceptance theory. But even Kelsen believes that if a constitution is not authorized by its predecessor, because there was none or because it was overthrown, then the present constitution is valid by something very close to acceptance, and the AC of the old constitution cannot be super-entrenched or presently valid. On this view an AC need not amend itself in any special way in order to become super-entrenched against its successors: it is automatically cantilevered over its successors until one of them is superseded by revolution. In the cognate situation of a sovereign releasing a subject (or former colony), therefore, Finnis notes that[Note 35] [g]reat care has, on occasion, been taken to perform some unauthorized act in the course of transfer of authority, so that it may be claimed that, because there has been a revolution, therefore the validity of the new constitution[al] legal order cannot be traced back to the British Imperial Constitution. In this sense Americans should be relieved that the present American constitution was invalidly established under the AC of the Articles of Confederation (see Appendix 1.D). Thomas Reed Powell once bemoaned the fact, which is a fact only to a formalist, that the American legal system was illegal on account of the defective self-amendment of the Articles of Confederation.[Note 36] But if initial illegality is cured by acceptance or acquiescence, or by the self-justifying terms of the ratification clause of the new constitution (Article VII in the present constitution) (see Section 7.B), then initial illegality is preferable to perpetual subjection to the prior AC, pending a revolution. Another form of super-entrenchment may be said to occur when a clause attempts to forbid its amendment by appeal to a moral duty which is presumed to be immutable, perhaps thereby acknowledging that a legal duty will not survive a change of regime. One example is the old Virginia statute quoted in Section 8.C which defined a right of free exercise of religion and asserted that repeal, while technically lawful, would infringe the right defined in the statute, which ultimately derived from natural law. Another example is K.W.B. Middleton's contribution to the long-running English debate on the question whether parliament can commit suicide. Dicey said it could, and Hart thinks that "might be conceded."[Note 37] On the other side are those, perhaps a majority, who believe the British Parliament has continuing omnipotence. Middleton takes a different 68