Paradox of Self-Amendment by Peter Suber Section 16: Amendment by Implication A. The lex posterior principle v. self-entrenchment When a new statute is passed that is inconsistent with an earlier statute, courts first try to reconcile them. But if the statutes cannot be reconciled without resort to absurd or violent interpretations, then the most recent statute is given priority. The earlier statute is impliedly repealed, not in its entirety but pro tanto or to the extent of the irreconcilable conflict. Two reasons are usually cited for the priority of recent law. First, it is the most recent voice of the people, the sovereign. They are undoubtedly able to repeal any existing law. They presumably know the provisions of existing law and intend to give effect to all their recent words. The weakness of this presumption is shown by the universal dissatisfaction with implied repeal, and the universal injunction to attempt reconciliation first. (This practice betrays the often conflicting presumption that the people intended that their act be compatible with their earlier acts.) Second, statutes may amend or repeal other statutes, and the newer is more likely an amendment of the older than vice versa.[Note 1] Why this should be so is unclear. If the newer statute is taken to be the amending, not the amended, statute, then it may be by appeal to "legislative intent", which collapses into the first reason, or by some appeal to the nature of statutes as a rule of change for statutes. Statutes unquestionably are rules of change for statutes, but this fact alone cannot explain why only newer statutes possess the power of implied repeal, or why it is so difficult for a statute to amend or repeal inconsistent future statutes through self-entrenchment.[Note 2] Following common usage I will use the term "lex posterior principle" for the priority of new rules over old rules of the same type. In a conflict between rules of different types, the superior rule in the legal hierarchy takes priority, even if it is older. For example, constitutional provisions always take priority over statutes. This is the lex superior principle. Any legal system displaying what I have called a reflexive hierarchy will also display many exceptions to the lex superior principle, or cases in which superiority is measured on a circular scale (see Section 21.D).[Note 3] The third major rule of priority is the lex specialis principle, which favors the specific over the general in conflicts at the same hierarchical level. While the lex superior principle (normally) takes priority over both the other two rules, the relative priority of the lex posterior and lex specialis principles among themselves is unsettled. When a new rule is less specific than an older rule of the same hierarchical type, and when they are irreconcilable, then it is apparently permissible to favor either rule, according to independent considerations. For example, one court has held that when two amendments adopted at the same time are irreconcilable, the one receiving the greater number of votes takes priority over the other. In re Interrogatories Propounded by the Senate Concerning House Bill 1078, 189 Colo. 11, 536 P.2d 308 (1975). If the question only arose more often of the relative priority of these rules of priority, we might see steps taken down an indefinite regress or toward a theory of types. The law of implied repeals is relatively well developed for statutes and cases, if only because there are so many of each and the question frequently arises. But the law of implied repeal for constitutional amendments is relatively undeveloped. Even at the state level where constitutional amendment is much more frequent than at the federal level, the theory of implied repeals is surprisingly inarticulate. When an amendment says of itself that it is to amend or repeal Article A, then there is no question of its effect on A. But it if is inconsistent with certain provisions or judicial interpretations of Article B as well, then does it impliedly repeal the latter? The amendment more than satisfies the two criteria used for statutes: it is the most recent voice of the sovereign, and it is enacted under a power sufficient to amend any portion of existing law. Whether a new amendment impliedly repeals every portion of the antecedently existing text irreconcilable with it may turn on a court's judgment of intent,[Note 4] or on deference to the inherent power of constitutional amendments to plow under all obstacles in their path.[Note 5] The only ways, apparently, to allow preexisting portions of the text to preserve themselves against implied repeal[Note 6] is to deny the omnipotence of the AC, which has been done of course (see Section 8), to find such denial implied in the doctrine of the homogeneity of the constitution,[Note 7] or to permit effective or immutable self-entrenchment (Sections 8, 9). If amendment by implication is possible, then amendment of the AC by implication is possible. Many scholars, but only losing plaintiffs, have argued that this has in fact happened to the federal AC —that Article V has been impliedly amended by the Tenth and Fourteenth Amendments. Since both these amendments were adopted under the AC they allegedly alter, we are dealing with arguments for genuine, although mediate and implied, self-amendment at the federal level. No clauses of the original constitution have been construed by courts to limit the power of Article V. Of the amendments, only the Tenth and Fourteenth have been argued to have such an effect.[Note 8] Although no one has argued that amendments other than the Tenth and Fourteenth have impliedly amended the AC, one might plausibly argue that each has necessarily done so. Take the Fifteenth Amendment (Black Suffrage) as an example. It established the right of blacks to vote and was adopted after Article V. Did it therefore limit the power of Article V to destroy their right to vote? If an amendment impliedly repeals all preexisting provisions inconsistent with itself, and if inconsistency in this context is measured by the deontic test (whether one rule permits what another forbids or vice versa), then it seems that any amendment that expressly permitted something previously impermissible (voting by blacks, women, or 18-year-olds) or forbade something previously permissible (unreasonable searches, legislative appointment of Senators, sale of liquor) thereby 112