Paradox of Self-Amendment by Peter Suber At least a history of self-limiting self-amendment would be a strong empirical indication of self-embracing power. It would not be decisive unless we knew that the limitations were immutable, which is unknowable so long as future generations may find a legal theory, such as acceptance, sufficient to amend them. A history of self-disentrenchment or transmutation would be a strong sign of continuing omnipotence. It would not be decisive unless we knew that all future limitations will be revocable, which is also unknowable. Because self-disentrenchment proves that the repealed limitations were repealable, the former (and therefore, present) existence of the limitation is consistent with both continuing and self- embracing omnipotence. What if an AC has both histories? What if it has validly limited itself through self-amendment and validly disentrenched its limitations? The present New Mexican AC has amended itself to a form inconsistent with its original form, and by reducing the years in which amendments may be considered by half, has limited itself. One section subject to a valid entrenchment clause has impliedly amended itself before or without expressly disentrenching itself. And the entrenched amending rule has been said to be capable of repealing its entrenchment clause without using the latter's special procedure, which is to disentrench itself. How do we interpret these signs? Self-embracing and continuing omnipotence are mutually exclusive because the former could limit itself in violation of the latter, and the latter could resist limitation in violation of the former (see Section 10). But self-embracing omnipotence is consistent with a limited power of disentrenchment, and continuing omnipotence is consistent with a limited power of self-amendment. The New Mexican AC may be one or the other of these logically coherent species, or it may actually possess both self-embracing and continuing omnipotence simultaneously and incoherently. Under the acceptance model, that is at least possible. That is, the people and officials could accept an immutable self-limitation, a sign of self-embracing omnipotence, and then accept its repeal, perhaps after transmutation, a sign of the revocability of the limitation and the continuing omnipotence of the AC. An AC may have continuing omnipotence as evidenced by a history of self-disentrenchment, and also have self-embracing omnipotence as evidenced by a history of revocable, temporary self-entrenchment and self-limitation. Stated this way, there is not even a logical problem. But self- embracing omnipotence could result in total self-repeal, which is clearly inconsistent with continuing omnipotence —if not self-contradictory in itself. And of course it could result in irrevocable, permanent self-entrenchment and self-limitation, which are also inconsistent with continuing omnipotence. These cannot coexist logically, but may they coexist legally? Self-repeal is cleaner and simpler than irrevocable self-entrenchment or self-limitation. Whether it has ever occurred in the United States depends upon one's definition. The mere replacement of an old constitution by a new one, under the authority of the old AC, when the new constitution has a completely different AC, may or may not be taken to comprise self-repeal. In any case, it is commonplace in American history and clearly lawful (see Appendix 2). If an AC authorizes the making of a new constitution that lacks an AC, then that is a more troublesome kind of self-repeal. It has apparently occurred once in America. The AC of the 1776 Pennsylvania constitution was used to nullify the instrument of which it was a part, and apparently used to make the next (1790) constitution, which lacked an AC. This is particularly ironic because the Pennsylvania constitution of 1776 was apparently the first constitution in history to include an explicit AC.[Note 44] Even if a power of self-repeal is located in the 1776 Pennsylvania AC, there is no history of the same AC disentrenching itself to suggest a coexisting continuing omnipotence. Perhaps the clearest examples of self-repeal are ACs that have authorized amendments that repealed and replaced themselves with new ACs. This has occurred in Vermont (1870), Oregon (1906), Tennessee (1953), Connecticut (1955), and Rhode Island (1973). None of these states has a history of express disentrenchment. Tennessee, however, has entrenched its Bill of Rights with the "forever...inviolate" language already noted, and yet has amended no fewer than 22 sections of that Bill of Rights, which might be taken as evidence of coexisting continuing omnipotence through implied disentrenchment. The next closest thing to total self-repeal in American history might lie in the final paragraph of the 1776 New Jersey constitution. That constitution contained no express AC, but announced in its final paragraph the conditional nullification of the whole constitution "if reconciliation between Great Britain and these Colonies should take place." This raises the question whether a reconciliation would have resulted in total self-repeal, or only in the irreflexive repeal of the constitution minus the repealing authority in the last sentence. Would the last sentence remain valid forever to tell us that the repeal was effective? (For problems of this kind, see Section 14.) For one like Alf Ross who believes that self-amendment and self- repeal are illegal, the reconciliation between Britain and the United States would have caused the anomaly in New Jersey of peace triggering revolution. Notes 1. I defer to Ross's argument, outlined in Section 5.D, that a sentence that refers only to itself, refers to a hall of mirrors rather than to a determinate subject. Even if Ross is wrong on this point, I need not show it for my present purposes. I also defer to Hart's argument that an "asymptotic stutter" can be avoided (at least) if the self-referential sentence refers to something other than itself as well. Hence, "this sentence shall not be amended" is (or may well be) subject to Ross's criticism. But no actual rules of law are so whimsical. A sentence that announced an irreflexive rule and added, "this section, including this sentence, shall not be amended", or more minimally, "neither rule R nor this sentence shall be amended", is perfectly meaningful. 2. These terms are ambiguous on the question whether a self-referential sentence refers to its words or to its meaning. While this ambiguity should be clarified through appropriate terminology, it is unnecessary to clarify it for my purposes here. Hence I will not confuse things by pursuing clarity through another distinction. 70