Paradox of Self-Amendment by Peter Suber One might say that citizens' failure to overthrow their constitution and government in revolution is a sufficient manifestation of consent to give the constitution and constitutional form of government legitimacy. Continuing failure to revolt would be continuing consent. But this view amounts to the proposition that a regime has legitimate authority if, and so long as, it successfully puts down and postpones revolution. The theory is strengthened if it makes legitimacy conditional on the postponement even of attempted revolution. But this does not strengthen it enough —and in other respects over-strengthens it. For of course the prevention of revolution may be accomplished by soul-satisfying justice, or it may be accomplished by midnight break-ins, kidnaping, constant surveillance, indoctrination, intimidation, terror, and torture. The point of a consent theory of legitimacy is gutted if the requisite consent may be coerced. But if the use and contentment not to use the AC is a measure of popular consent to the constitution, then the fairness and difficulty of the amending process must be brought into the calculation. The weight of the use and non-use of the AC as evidence of consent to be governed by the constitution is (roughly) in inverse proportion to the difficulty of amending the constitution for the general public. Dissatisfaction could rise to a level needed for successful revolution and still not suffice to amend the constitution if the amending process required the unanimous votes of every state and county legislature, or referred the question to an aristocratic elite. For my purposes here I need not decide the maximal degree of difficulty for an amendment process before it fails to capture the actual consent of the governed. However, I am intrigued by the idea that the manifestation of consent sufficient to adopt a constitution in the first place is the most that can be expected in order to provide continuing authority to that constitution. This means that if amendment is more difficult than the original ratification, then the constitution has lost some degree of authority or legitimacy. The authority of a constitution over generations of citizens who did not ratify it would diminish roughly to the extent that the difficulty they face in amendment exceeds the difficulty of the original ratification. For such citizens, legitimate amendment would be more difficult than a revolution or discontinuity that would establish a new constitution with equal or greater legitimacy than their ancestors had in adopting the old one.[Note 13] If amendment becomes impossible after the first generation, because there is no AC or because courts or tyrants invalidate all attempts under it, then authority under the consent theory would drop to about zero plus any surcharge which citizens accord to rules of law, qua rules of law, before deciding to disobey.[Note 14] The consent theory of authority is widespread and long-lived. Without endorsing it here I may observe that it is expressly endorsed by the Declaration of Independence[Note 15] and many state constitutions, and that it puts great weight on the AC of a constitution and the difficulty it creates for the amending process. Because most attempts to change ACs are attempts to raise or lower that level of difficulty, the problem of the applicability of an AC to itself is of urgent practical importance. Under the consent theory the self-amendment of the AC may increase or decrease the opportunities for the people to manifest their consent to be governed by that constitution.[Note 16] Self-limiting self-amendments, which most strongly raise the specter of paradox, may enhance or diminish the legitimacy of the constitution. The consent of the governed as it appears in the amendment process not only requires that difficulty of the process be within certain bounds, but also that the consent meet some minimal standards of cognitive and volitional competency, like any other consent. Detailing the distortions to consent, hence to legitimacy, introduced by ideology and violence is generally beyond the topic here. But we may say that the validity of consent to an amendment may, for evidentiary purposes, be presumed conclusively from the requisite vote, but that does not preclude inquiry into the "actual" consent of the people. In Bedner v. King, 110 N.H. 475, 272 A.2d 616 (1970) the New Hampshire Supreme Court refused to find that the voters' consent to an amendment was invalid merely because publicity about its content and effects was inaccurate. Cognitive incompetency is apparently irrelevant in New Hampshire, or at least not to be inferred from false advertising alone. Serious questions of volitional competency have been raised about the three Civil War amendments. The validity of the Thirteenth, Fourteenth, and Fifteenth Amendments has long troubled those who perceive them as exactions of the victor not voluntarily endorsed by the southern states whose votes were needed for ratification. Compare the case of Japan, whose constitution of 1946 was imposed on the nation by the Supreme Command for the Allied Powers (SCAP).[Note 17] The constitution was ratified by the Japanese Diet but under pressure from SCAP while Japan was under military occupation. For these reasons some Japanese scholars argue that the 1946 constitution is invalid.[Note 18] John Maki reports that among the most urgently demanded reforms is the self-amendment of the Japanese AC, which Commissioner Kanikawa objected is one of the most difficult to use in the world and "possesses the character of a law of occupation control enacted by the Allied nations."[Note 19] I am not concerned to justify the consent theory per se or to suggest the optimal level of difficulty which the people should impose on themselves through their AC.[Note 20] I will concentrate hereafter on the theoretical problems of self-amendment, hoping that the reader will see behind the logical problem a very fundamental problem of legitimacy which implicates many of the basic values of our system of law and popular sovereignty.[Note 21] The self-amendment of ACs has frequently occurred (see Appendix 2). Hence the question of the logical coherence of self-amendment is not merely academic. By exploring its logical and legal characteristics I hope to shed light on our hidden models of legal change and concepts of law itself, rather than to set logic over law as sovereign and retroactively declare the impossibility, or even question the possibility, of the commonplace. Notes 1. George Tichnor Curtis, Constitutional History of the United States From Their Declaration of Independence to the Close of the Civil War, Harper and Bros., 2 vols., 1889-96, 2:152. 13