Paradox of Self-Amendment by Peter Suber 3. In these terms, Ross objected to statutes that were self-referential per se, but eventually narrowed his criticism to those that were immediately self-referential. Hart countered by showing that mediate and eccentric self-reference can be meaningful by avoiding the "asymptotic stutter" or incompleteable series of references comprising the subject of the sentence. 4. This choice may be defended by noting that a reference that referred directly and solely to itself is immediately self-referential, even though it may be said to refer to the class of which it is the only member. 5. In support I can cite the entrenched sections in the Australian and South African constitutions, discussed in Section 8, both of which were written by the British parliament. The British North America Act, which served as Canada's constitution until 1982, and which was written mostly in Britain, had no amending power that Canadians themselves could use. The new 1982 constitution, however, was established primarily to transfer the amending power from Britain to Canada, "repatriating" the constitution and completing the sovereignty of Canada. The entrenchment of the equal suffrage of the states in the Senate in the United States constitution was included at the insistence of the states who feared encroachments on their sovereignty. The entrenchment of §1 of the New Mexican AC by §5 was originally imposed by the New Mexicans on themselves, but Congress left it unchanged and even demanded that it remain as a precondition of admission to the Union. The clause within New Mexico's AC §1 that entrenched sections of other articles on voting and education were demanded by Congress. The clearest exception to my generalization is the entrenchment clause in the present (1901) Alabama AC, that explicitly and completely entrenches the rule that representation in the state legislature shall be based on population (see entry on Alabama in Appendix 2). 6. In real legal systems a tacit rule to obey the other rules is either unnecessary or may always be inferred. Hart argues that they are unnecessary; Hart, The Concept of Law, Oxford University Press, 1961, p. 230. The same is probably true of games, but in the spirit of making everything explicit in a game in which the rules are constantly changing, and to offer a tantalizing rule to change, I have made the rule to obey the rules explicit in the game Nomic, in Appendix 3. 7. Each state uses the same language, except that Arkansas inserts "the" before "government." 8. This case was first brought into this context by Douglas Linder, "What In the Constitution Cannot Be Amended?" Arizona Law Review, 23 (1981) 717-33, at 724.n.46. He deserves great credit for discovering it, for Henry Rottschaefer, writing in 1939, believed that no case of an attempted amendment of an entrenchment clause had occurred in America. See text accompanying note 27, below. 9. Helene Simpson, "Procedural Problems in Amending New Mexico's Constitution," Natural Resources Journal, 4 (1964-65) 151-59, at 156ff. 10. I have not been able to discover whether the vote on the AC that Congress demanded was conducted under the terms of the old AC that would be replaced. Certainly it was not proposed under the terms of the old AC. 11. Simpson, op. cit. at 157. 12. Simpson, op. cit. at 158-59. Arizona had originally subjected all public officials to recall by popular vote. Congress demanded an exception for judges, an exception that the voters adopted before submission and then repealed after admission. The Arizona amendment was demanded by a Joint Resolution of Congress, like the New Mexican amendment, not by the federal Enabling Act. The Arizona Supreme Court has ruled, by contrast, that the provisions in the Arizona constitution required by the Enabling Act "cannot be altered, changed, amended, or disregarded without an act of Congress." Murphy v. State, 65 Ariz. 338, 181 P.2d 336, 340 (1947). Wyoming made a similar ruling in Merrill v. Bishop, 74 Wyo. 298, 287 P.2d 620 (1955). Three New Mexican attempts to circumvent the terms of its Enabling Act were struck down as unconstitutional. Regents of the University of New Mexico v. Graham, 33 N.M. 214, 264 P. 953 (1928), State v. Llewellyn, 23 N.M. 43, 167 P. 414 (1917), cert. den. 245 U.S. 666 (1918), and State v. Marron, 18 N.M. 426, 137 P. 845 (1913). Cf. Ervien v. United States, 251 U.S. 41 (1919). See Simpson, op. cit. at 157. In United States v. Sandoval, 231 U.S. 28 (1913) the Supreme Court rejected a challenge by New Mexico to a provision of its Enabling Act that prohibited liquor in Pueblo Indian land. Congress can make a state assent to such a provision as a precondition to admission so long as Congress has jurisdiction to regulate the subject matter of the provision. New Mexico's Enabling Act is 36 Stat. 557 (1910), which is included in the New Mexico constitution at Article 21, §10. Article 21, by the way, is incompletely entrenched by AC §4. The Enabling Act did not require the amendment of the original AC; that was demanded by a Joint Resolution of Congress, 37 Stat. 39 (1911). 13. One wonders whether New Mexico was alone in this respect because of its large Hispanic —and Catholic— population. 14. See Arthur O'Neal Beach, "Constitutional Revision — Constitutional Amendment Process [in New Mexico]," Natural Resources Journal, 9 (1969) 422-29 at 425f. 15. Linder, op. cit. at 729. 16. Linder gets out of this problem, partially, by denying entrenchment clauses any effect at all, apparently because democratic values take precedence over the intent of the makers: "no principled decision could depend upon whether the amendment [to be repealed] did or did not include a clause expressly declaring the amendment not to be subject to repeal." Linder, op. cit. at 730. Therefore, Linder's single amendment need not and would not repeal both the entrenchment clause and the protected rule. Because the former is a nullity, only the latter need be repealed, and no obstacle stands in the way. Linder gives no reason to think that democratic values should sometimes supersede the intent of the law- makers and sometimes be superseded. Nor does he reconcile his appeal to democratic values with his per se rule invalidating entrenchment 71