Paradox of Self-Amendment by Peter Suber 2. Lester Bernhardt Orfield, The Amending of the Federal Constitution, University of Michigan Press, 1942, p. 210. 3. Stevenson's remarks are quoted in Robert L. Farwell, "Gateway to What?" DePaul Law Review, 10 (1961) 274-85 at p. 278. See also Charles L. Laughlin, "A Study in Constitutional Rigidity," University of Chicago Law Review, Part I, 10 (1943) 142-76, Part II, co-authored with Kenneth G. Sears, 11 (1944) 374-442. 4. Constitutional amendment through means other than amendment clauses is surveyed in Part Two. 5. John William Burgess, Political Science and Comparative Constitutional Law, London: Ginn & Co., 2 vols., 1891, 1:137. 6. As I will use the term, an "amendment clause" or "AC" is any rule authorizing the change of the rules of the constitution. When the constitution is written, then the AC is usually explicit and easy to find, but not always. I intend this broad definition to capture tacit amendment rules of other constitutional systems. When it is explicit, of course, it is not just a rule but a provision or specimen of language. The difference between an AC qua language and an AC qua rule is considerable, and will be observed whenever it is relevant. "Amendment clause" ("AC") covers both senses. One reason that the paradox of self-amendment cannot arise in deontic logic (the logic of obligation and permission, often used in analyzing law) is that no equivalent of an AC so defined exists in any such system. Whether an equivalent may be constructed —a fascinating challenge— is beyond my topic here. See Section 12.C and Appendix 3. 7. See H.L.A. Hart, The Concept of Law, Oxford University Press, 1961, pp. 115-16. 8. In subsequent sections I will call the formalist theory the "inference model" and two non-formalist theories the "acceptance model" and "procedural model". See Sections 6, 7, and 10. 9. In Part One I will discuss the general application of the AC of a system to itself. In Sections 4 and 13 I will discuss the application of one section of a complex AC to another section as a method of amending the AC without strict self-application. 10. Orfield, op. cit., Chapter VI. 11. Our Lockean ears resonate with the proposition that the people are sovereign and that they are bound to obey their laws by contract principles. Yet the paradox of omnipotence arises in another form if the first generation of sovereign people can bind its successors (see Section 8). The adoption of a constitution with an AC is a revocable act, because the AC permits piecemeal change and wholesale replacement. As long as the establishment of the constitution is revocable by later generations, and the method of amendment is fair, then the first generation is not oppressively binding its successors. But if the method of amendment is not fair, or is too difficult, then the constitution inherited by future generations does oppress and is partially illegitimate. The Lockean consent theory is strengthened as a normative theory of justice, and protected from the paradox of omnipotence, if we insist that the legitimacy of law requires the continuing consent of the governed, not just the consent of the founding generation. 12. Paul Brest makes the point that failure to amend does not show consent to the constitution in its current form, but only to the current judicial interpretation of the constitution. Paul Brest, "The Misconceived Quest for the Original Understanding," Boston University Law Review, 60 (1980) 204, 236. This point is well taken. To the extent that the constitution is its current judicial interpretation for purposes of application, the point I wish to make survives Brest's qualification. Under the consent theory the changes in the constitution that are necessary to sustain the approval of the people through changing circumstances may arise in any way consistent with that continuing approval, e.g., by judicial review (see Section 15), by international agreements (see Section 17), by desuetude (see Section 19), or by use of the methods of the AC. In fairness to Brest I should note that, while he believes the consent theory must be extended to require continuing consent, he ultimately rejects even the extended theory. Id. at 225ff. An excellent general discussion of the politics of self-binding may be found in Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality, Cambridge University Press, rev. ed. 1984, esp. pp. 87-103. 13. The reasonableness of this idea is suggested by the simplified situation in which all the parameters of difficulty in the amendment process are focused on the supermajority needed to adopt. If the first generation (G1) needed 70% approval to adopt the constitution, and the second generation (G2) needed 75% to amend, then failure by G2 to amend would not show sufficient consent to the constitution to establish the legitimacy of the constitution for G2. Failure of G2 to amend may conceal a 74% consensus for radical change, in which case G2 dissents from the constitution more widely than G1 consented to it, and yet is supposed to be bound. This is not self-evident injustice, but the unjust element of it cannot be blinked away. With 74% consensus for radical change G2 could ignore the constitution and make another one —could revolt— with more legitimacy than G1 had in making the prior constitution. On the other hand, if G2 amends at 75%, then it may have been delayed longer than is just, which is roughly as long as it had 70% approval, or as long as it had the breadth and depth of support needed to revolt and make its own constitution with the same degree of legitimacy as its predecessor. This is especially true when, not G2, but G10 or G20 finally amends when G2- G19 each mustered at least 70% consensus for change. 14