Paradox of Self-Amendment by Peter Suber Unless and until [Article V] be changed by amendment, Congress must function as the delegated agent of the people in the choice of the method of ratification. Undeniably we are left with a clear statement of law but no solution to the problem of 1300 tyrants on a long leash, capable of erasing all that we hold dear. The Sprague court did not address the threat to our liberties inherent in an omnipotent AC. Possibly it refrained because the difficulty of amendment means that the monster is partially under control, or because, in fact, the monster is ourselves. A desire to limit the amending power, or to make it more difficult —not the same thing— shows a distrust for democracy or a denial that in general the people deserve what they get. The clear statement of law in Sprague is that the Tenth Amendment has not impliedly amended Article V. It follows that no self-amendment has occurred from that direction. Sprague also says that, apart from the explicit limitations stated in Article V itself, two of which have expired (repealed by sunset clause), the federal amending power is omnipotent. The law in the United States is that roughly 2000 people can, legally, repeal all the constitutional limitations on government and guarantees of liberty.[Note 27] Note that Prohibition was finally repealed by the Twenty-First amendment (1933), for which Congress stipulated the convention method of ratification. It is the only amendment to the federal constitution ratified in state conventions. The convention method was chosen to prove that the people actually disapproved Prohibition, to satisfy many of the wounded interests left over from the controversial ratification of Prohibition itself, and to demonstrate the widespread conviction that the amendment process had been craftily manipulated for Prohibition by a small minority of religious zealots alienated from the popular will.[Note 28] Before leaving this topic I must remark on the boldness of U.S. v. Sprague, 44 F.2d 967 (1930), the New Jersey District Court case that was overturned by the Supreme Court. The District Court in Sprague actually held the Eighteenth Amendment void, and to do so it disregarded or even "reversed" three recent Supreme Court decisions. It finds an amendment of the constitution to violate the constitution, which is much rarer than to find a violation to amend (see Sections 8.B, 21.C). It is the only case ever to hold a federal constitutional amendment unconstitutional, either before or after ratification. The audacious and erudite opinion by Judge Clark[Note 29] does not agree with the plaintiff that the Tenth Amendment has amended Article V,[Note 30] but instead relies on "principles of political science"[Note 31] that require representative decision-making in a democracy. Judge Clark virtually admits that he is inventing law.[Note 32] An alternative ground of his holding is that, even if Congress had discretion under the principles of political science to select the method of ratification, it abused its discretion by choosing legislative ratification for the Eighteenth Amendment.[Note 33] Judge Clark closes with the hope that one day someone will challenge the Eighteenth Amendment under the Due Process clause of the Fourteenth Amendment. For if vaccinations do not violate due process because they are actually effective against an actually undesirable disease like smallpox, Jacobson v. Massachusetts, 197 U.S. 11 (1905), then the Prohibition amendment must be tested both for its actual effectiveness and for the actual undesirability of intemperance. His opinion, he says, is based on a "tired eye scrutiny" of the constitution.[Note 34] C. Was the adoption of the Fourteenth Amendment a case of self-amendment? The Eighteenth Amendment had already been challenged under the Fourteenth Amendment by the time Sprague was heard in the District Court. In Peter Hand v. U.S., 2 F.2d 449 (CA.7 1924) an opponent of Prohibition challenged the validity of the Eighteenth Amendment on the ground that the Due Process clause required ratification by convention. The court held that the Due Process clause required no such thing, and felt no need to elaborate. The plaintiff had also argued that the Fourteenth Amendment impliedly amended Article V,[Note 35] first by limiting Congress' discretion to call for ratification in state legislatures, and second, by "nationalizing the people" and putting aside the federation of states and state rights. The latter argument is not elaborated in the opinion, but it may have concluded that some form of national referendum is a method of ratification required by the Due Process clause. Again, the court spends little time and few words rejecting the plaintiff's theories. Unfortunately we know no more about the alleged amendment of Article V by the Fourteenth Amendment.[Note 36] D. The lex posterior principle self-applied The lex posterior principle allows newer rules to amend or repeal older rules in case of irreconcilable conflict, when both are on the same hierarchical level. It may be considered a rule of construction,[Note 37] but it operates as a rule of change. That is why it is disfavored: it results in the repeal of a rule not directly intended to be repealed. As a rule of change, could it be applied to itself? The answer is yes. For example, suppose that the lex posterior principle were made a positive statute directing courts in the interpretation of a criminal code, and that subsequently the legislature adopted a statute saying, in effect, "in cases of irreconcilable conflicts between criminal statutes, preference shall be given to that which favors the defendant." The new rule could offer any different rule of priority, provided that it were silent on its effect on the lex posterior statute and conflicted irreconcilably with it. If we follow the new rule of priority, the lex posterior statute will be followed when it favors the defendant, abandoned otherwise. If we follow the lex posterior statute, we favor the new rule of priority, thereby causing the self-repeal pro tanto of the lex posterior statute. Notes 1. Note that while statutes are a rule of change for statutes, this power can normally be exercised only by later statutes over earlier ones. A statute cannot in general amend or repeal future statutes, for example, by stipulating its own priority in case of conflict with subsequent legislation. For a 115