Paradox of Self-Amendment by Peter Suber 11. See the many cases collected in Corpus Juris Secundum, "Statutes", Section 279.n.80. 12. Ibid., Section 279.n.81. 13. This was a favorite observation of William Earle, professor of philosophy at Northwestern University. 14. However, for cases of self-amendment invalidated on other grounds, see the comments on self-amendment in Arkansas and Nevada in Appendix 2. 15. Therefore, anyone who objects to self-limiting self-amendment must also object to self-imposed limitations, at least to self-imposed complete self-entrenchment clauses, even if they do not directly entrench or limit the AC. This just one way to say that adding an immutable provision to the constitution would limit the AC irrevocably just as much as a direct attempt at irrevocable self-limitation. 16. While self-embracing omnipotence may be converted into continuing omnipotence by the simple means of adopting a completely self- entrenched self-amendment that protected the continuing character of the AC from subsequent limitation, it turns out to be impossible to convert self-embracing omnipotence into a continuing self-embracing omnipotence, or one that is immutably self-embracing. See Section 11. 17. See W. Friedmann, "Trethowan's Case, Parliamentary Sovereignty and the Limits of Legal Change," Australian Law Review, 24 (1950) 103-08; Zelman Cowen, "Parliamentary Sovereignty and the Limits of Legal Change," Australian Law Review, 26 (1952) 237-40; H.W.R. Wade, "The Basis of Legal Sovereignty," Cambridge Law Journal, no vol. (1955) 172-97. 18. Geoffrey Marshall, Parliamentary Sovereignty and the Commonwealth, Oxford University Press, 1957, Chapter XI; H.L.A. Hart, "Self-Referring Laws," Festskrift Tillagnäd Karl Olivecrona, Stockholm: Kungl. Boktryckeriet, P.A. Norstedt & Söner, 1964, pp. 307-16, at pp. 311-12, and The Concept of Law, Oxford University Press, 1961, at pp. 70-72; D.V. Cowen, op. cit. note 5 above, passim; H.W.R. Wade, op. cit. note 17 above, passim. 19. An AC that seems to be omnipotent is in practice very seriously limited in its power when incomplete entrenchment clauses require very difficult amendment procedures. But in theory, if I may use an analogy from the theory of computation, continuing omnipotence is no more overthrown by severe difficulties of procedure than the computability of a function is denied by NP-completeness. But this latter fact is of merely theoretical importance. While it might affect the theological version of the paradox of omnipotence, where practical difficulties can never impede the kind of power at the center of the paradox, this theoretical point is as uninteresting in law as the computability of NP-complete functions is to working programmers. 20. Self-amendment in general, and not only the special case of the repeal of complete self-entrenchment clauses, may involve the capacity of the people and officials to overlook and tolerate contradiction. But the method to be outlined relies only on self-amendment, not directly on the repeal of completely self-entrenched rules. 21. Strictly speaking, acceptance is not necessary if some other authority for law, e.g. the might of an army or the will of a deity, can tolerate contradiction as acceptance can. 22. If contradiction can be tolerated, it is just as likely that the "object" will resist the "force". When the authority behind the "force" is acceptance, then the "force" moves the "object" if that is what the people and officials have accepted. Since it is the people and officials who apply the "force" by using the amending procedure, the "object" or old law gives way. If the authority behind the "force" were the will of a deity, for example, and if the deity's priests reported that the old rule had the deity's favor but the new amendment movement did not, then the "object" would resist the "force". This is the question whether temporally posterior rules (the new amendment) have logical priority over temporally prior rules (the old rule to be amended) —or whether the living generation is sovereign and can overrule the sovereign acts of prior generations. The answer is contingent on how the people interpret the source of authority in their legal system. Acceptance understood as acceptance always gives the living generation sovereignty, that is, at least the kind of omnipotence required to amend any law it has inherited. 23. Emphases added; see Corpus Juris Secundum, Constitutional Law, section 39.n.42. 24. Raymond Uhl, "Sovereignty and the Fifth Article," Southwestern Social Science Quarterly, 16 (1936) 1-20. 25. Uhl, ibid. at p. 15. Uhl cites Austin and Dicey at p. 19.n.40. For a good collection of Austinian statements that every legal system must have an unlimited law-maker, see Lester Bernhardt Orfield, The Amending of the Federal Constitution, University of Michigan Press, 1942, at p. 137.n.20. Orfield himself denies this proposition, ibid., p. 138. Orfield's own discussion of the sovereignty of the amending power, ibid., pp. 130ff, is more sophisticated than Uhl's, but also too loose on the question of the omnipotence of the AC and the power of the sovereign to determine the limits of its own competency; see ibid., pp. 130, 133. 26. Orfield falls into the same trap with this formulation, ibid., p. 157: Sovereignty, viewed in the broadest sense, may be regarded as the power to make a law on any subject binding for all time in all places. This capacity theoretically exists in the amending body. 55