Paradox of Self-Amendment by Peter Suber 32. Hans Kelsen, The Pure Theory of Law, University of California Press, 1967, at 200. 33. Alf Ross, "On Self-Reference and a Puzzle in Constitutional Law," Mind, 78 (1969) 1-24, at 22-23. 34. Finnis, op. cit. at 53. 35. Finnis, ibid. at 52 (emphases in original). 36. Thomas Reed Powell, "Changing Constitutional Phases," Boston University Law Review, 19 (1939) 509-32, at 511-12. More precisely, Powell argued that the new constitution was not established until it had been ratified unanimously, as required by the Articles of Confederation. Ratification became unanimous two years after the new constitution's own terms for its establishment (ratification by nine states) had been satisfied. For more discussion of this problem, see Appendix 1.D. 37. H.L.A. Hart, The Concept of Law, Oxford University Press, 1961, at 148. 38. K.W.B. Middleton, "New Thoughts on the Union of England and Scotland," Juridical Review, 66 (1954) 37-60 at 48; the quotation to follow appears at 52. 39. William Marbury, "The Limitations Upon the Amending Power," Harvard Law Review, 33 (1919) 223-35, at 225. This idea has some support from the more radical statement by Roger Sherman, delegate to the Constitutional Convention, made in the first session of Congress: All that is granted us by the Fifth Article is, that whenever we shall think it necessary we may propose amendments to the Constitution, not that we may propose to repeal the old, and substitute a new one. Annals of Congress, vol. 1, at 742. Note that Sherman's principle forbids a type of self-amendment that is common in the states, and that arguably (but if so, defectively) established the present federal constitution under the AC of the Articles of Confederation (see Appendix 1.D). For other doctrines of Roger Sherman that, by contrast, may have led to the self-amendment of the federal AC, see Section 16. 40. Swineburne, op. cit. at 236. 41. Ludwig Wittgenstein, On Certainty, Harper and Row, 1969, Section 185, p. 26e. 42. J.M. Eekelaar, "Principles of Revolutionary Legality," in A.W.B. Simpson (ed.), Oxford Essays in Jurisprudence, Second Series, Oxford University Press, 1973, 22-43. Eekelaar argues that the legality of revolutionary acts is justiciable by the next or new regime, according to principles that survive revolution. But see Wayne B. Wheeler, "The Constitutionality of the Constitution is Not A Justiciable Question," Century Law Review, 90 (1920) 152. The best recent summary of the law of the justiciability of amendments is Judith Elder, "Article V, Justiciability, and the Equal Rights Amendment," Oklahoma Law Review, 31 (1978) 63-109. Howard Newcomb Morse, "May an Amendment to the U.S. Constitution Be Unconstitutional?" Alabama Lawyer, 10 (1949) 199-200, offers the unusual view that amendments may conflict with the spirit of the constitution and, if so, the conflict should be settled according to the rules of priority used in conveyances of real property. Morse's rationale is that the tests of sovereignty are all property law tests, such as the power to take property by eminent domain, the quality of having property escheat to it, and immunity to claims of adverse possession. 43. Hart, op. cit. at 146. 44. Jacob Tanger, "Amending Procedure of the Federal Constitution," American Political Science Review, 10 (1916) 689-99. For the general proposition that express amendment clauses in the supreme law were the invention of Americans, see Ralph R. Martig, "Amending the Constitution; Article V; The Keystone of the Arch," Michigan Law Review, 35 (1937) 1253-85, and Carl Joachim Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America, Blaisdell Pub. Co., 4th ed., 1968, at 138. 73