Paradox of Self-Amendment by Peter Suber Moreover, if we reject the model of lawful power that requires it to be authorized or dispensed by another lawful power, it seems we are equally driven to postulate a self-legitimating power. Hence, some circularity in our concept of sovereignty seems unavoidable, just as metaphysicians have never been able to avoid concepts of self-caused causes and self-justifying first principles as the price of avoiding causal and logical infinite regresses. I believe the United States embodies the third type of sovereignty above, unless "the consent of the people" is taken as a nonfictitious source of power and legitimacy. Sovereignty in the United States is not monolithic, but plural and systematically divided. While the parts may not positively "grant" power to the others, the parts do negatively "review" or "check" and limit the power of the others. To follow the chain of reviewing bodies, starting anywhere, one will be led either in a circle (of greater or smaller size depending on where one began) or to "the people". H.5. Sovereignty by default. The persistent, self-positing nature of sovereignty is seen in cases of what might be called sovereignty by default. In the sphere of international law, "monists" argue that when there is apparently no international law on a certain subject, then there really is an international law, namely, "leave it to the domestic law of the individual nations." That is, national sovereignty is itself a dispensation of the international legal system. The idea that every visible form of government is subordinate to an invisible higher sovereign, whether it is logic, morality, natural law, the kingdom of heaven, or international law, explains problematic national sovereignty by referring it to a higher sovereign that holds its authority by self-justification. The alternative is an infinite regress of sovereigns, like the gods behind the gods. The instinct to posit ever higher levels of sovereignty reminds one of Adam Weishaupt who infiltrated the Freemasons in the late 18th century and became its leader. His "weapon" was the hoax that there was a secret, higher body of Freemansons, called the Illuminati, which he supposedly represented. The love of hierarchy and secrecy were both strong among the Freemasons, and Weishaupt's hoax enabled him to win sovereign power as an invader. A few American cases defer to various species of "higher" law, including international law. A recent case from the Second Circuit, (Filartiga v. Pena- Irala, 1980) asserts that the international law of human rights is, and always has been, incorporated into the "federal common law". (This ruling enabled a U.S. federal court to obtain jurisdiction over an alleged Paraguayan torturer sued in tort by a relative of a victim when both happened to be in the United States, when the alleged tort did not occur in the U.S., and when neither party was a U.S. citizen.) Article 25 of the constitution of West Germany, written by the allies, defers to international law as superior to domestic German law. The supremacy clause of our constitution (Article VI, §2) gives supremacy to the constitution itself but also to treaties made under the authority of the United States. In Missouri v. Holland, 252 U.S. 416 (1920), domestic legislation implementing a treaty was held constitutional although substantially the same legislation was held unconstitutional before the treaty was signed. There is much literature on this case raising the reflexivity questions whether the constitution can declare its own supersession, whether the supremacy of treaties is an indirect method of amending the constitution, and whether supremacy can be shared. A proposed constitutional amendment to overrule Holland and straighten out some reflexivities in the supremacy clause was defeated (see Section 17.B). H.6. Self-Created Authority. Some authoritative instruments have a self-created authority. This is slightly different from the self-created sovereignty that may or may not be required to halt the infinite regress of sovereigns. A sign at an airport security point warning passengers that they may be searched is backed by the federal common law on permissible consent searches. But it is the sign itself —its existence, intelligibility, and conspicuousness— that gives the notice that makes the search permissible, and thus that makes the sign's text true. Similarly, a conspicuous copyright notice validates itself. In the law of evidence, excited utterances are admissible hearsay only because the excitement of the speaker is an assurance of reliability. The showing of an exciting event is a prerequisite, but in most jurisdictions the existence of the alleged exciting event may be inferred from the utterance. Hence the warrant for the reliability is self-established. Nine states have had, at one time in their history, a constitution without an amending clause.[Note 20] Yet each has been enabled to amend its constitution. The authority to do so has been recognized on various grounds, as inherent in the people or the legislature or a constitutional convention. The law and scholarly opinion on the self-creation or validation of such amending power is well-summarized in In Re Opinion to the Governor, 55 R.I. 56, 178 A. 433, 449-51 (1935). H.7. Self-Destroying Authority. Some authority is self-destroying. My favorite example is the ex parte annulment of marriage. A proceeding is ex parte if it is "one-sided" in the sense that only one of the parties whose rights is being adjudicated is present in court. The permissibility of ex parte divorce is an exception to the normal rule that courts must have personal jurisdiction over a party before it may adjudicate her substantive rights. The fiction that marriage is a thing (res) that travels with each spouse is used to justify the ex parte divorce. The court granting the divorce has jurisdiction in rem over the thing, marriage, not jurisdiction in personam over the spouses. But while this might make some sense for divorce, it makes no sense at all for annulment. While divorce simply terminates an existing marriage, annulment declares that there was never a marriage or that it was void from the beginning. In our system ex parte annulments are permissible under a theory of in rem jurisdiction. So when a person goes to court for an ex parte annulment, the court adjudicates the rights of the absent party by virtue of its in rem jurisdiction over the "marriage" which is in the courtroom. If the annulment petition is granted, then the marriage never existed; the court's decree subverts and eradicates the jurisdictional basis of the petition. The ground of standing is self-destroying. Decrees of ex parte annulment should be self-overruling, but they are not. 137