Paradox of Self-Amendment by Peter Suber omnipotence. If it cannot amend itself even in these ways, or if it cannot amend certain provisions of the constitution, then it is not omnipotent at all, unless it can make itself omnipotent, and at least one rule is immutable, unless the AC can transmute it. B. Entrenchment, self-entrenchment, disentrenchment Limitations on the amending power may be of two basic types. The first is typified by a clause in the constitution that says of clauses other than itself that they cannot be amended except perhaps in special ways. The federal AC "entrenches" the equal suffrage of the states in the Senate in just this way. The last clause of Article V, the AC of the federal constitution, holds that "no State, without its consent, shall be deprived of its equal suffrage in the Senate." This language seems to require a special amendment procedure if any state is to be disenfranchised from the senate, namely, the regular procedure in which the victim happens to vote aye. The second type of limitation is typified by a clause that says of itself that it is immune to amendment. There is no explicit example of this type in the federal constitution, although there are several among the states and in the English tradition which will be examined (some in Section 9). Let us call the former type "entrenchment clauses", and the latter "self-entrenchment clauses".[Note 5] There may be cases of implied self-entrenchment. Because an entrenchment clause is less useful for its intended purpose if it is not self- entrenched, there is a temptation to read every entrenchment clause as impliedly self-entrenched. For example, in the case of the entrenchment of the equal suffage of the states in the federal amending process, we seem to have a case of entrenchment without express self-entrenchment. The clause of Article V prohibits amendments of a certain kind. But since no clause protects that clause the way it protects the equal suffrage of the states, may it be repealed by ordinary amendment procedures as the first step toward making the prohibited sort of amendment? If so, it may be repealed without the consent of the states eventually to be disenfranchised from the senate. The language of the clause does not help us much, and good policy grounds could be cited on both sides. If it is read to prohibit its own repeal, then it is impliedly self-entrenched. (More on implied self-entrenchment in Section 8.C below.) We can interpret entrenchment and self-entrenchment clauses equally well as procedural or substantive limitations on amendment. A procedural limitation bars amendments that do not conform to a certain procedure, while a substantive limitation bars amendments with a certain content. The clause impeding the disenfranchisement of a state from the senate is clearly both. The objectionable content is named in the clause, and a special procedure is laid down for amendments of that kind. Entrenchment and self-entrenchment clauses are often thought to be procedural limitations only; in England they are called "manner and form" limitations as if to highlight their indifference to content.[Note 6] But this overlooks the fact that the clauses always protect certain provisions of law from (ordinary) amendment. The protection they afford consists in making the amendment procedure more difficult, but the object of protection is invariably some specific content or substantive kind of law that the clause- writers did not wish to see enacted except with extraordinarily wide consent. The very idea of procedural limitations on a legal power deserves a word of clarification. Procedures may be ordinary or extraordinary. For example, amendments to the federal constitution must be ratified by two-thirds of each house of Congress and by three-fourths of the states. These procedural requirements are ordinary; they are the "default" conditions to which any amendment must conform unless some special procedure is required. If a particular state must vote to ratify an amendment, because its consent is required for its own disenfranchisement, then that procedural requirement is extraordinary. It sounds very odd to say that ordinary requirements are "procedural limitations" on the amending power because they are just as much the constitutive or defining conditions of that power. They do not seem to "limit" the power any more than DNA "limits" the nature of human beings. But a moment's reflection shows that speaking in this way is harmless and even helpful in many contexts. If it were physically impossible to transgress the limitation, then the oddity would remain. But in law it is possible, frequent, and even perilously easy for an intended act of amendment, legislation, adjudication, or divorce to violate the ordinary procedural limitations on acts of that kind and consequently to be a legal nullity. It often takes lawyers who specialize in that area of law to ensure that the ordinary procedure is followed in every particular. Nevertheless, extraordinary requirements feel more like limitations than ordinary requirements, for they restrict the valid application of a power that is already defined more broadly. Self-entrenchment, like self-amendment, may depend on the stipulated scope of "self". If an AC has many sections and one says of another that it shall not be amended, then that is self-entrenchment broadly conceived. Narrow or strict self-entrenchment, however, must be restricted to the entrenchment of a unit of language by words within that unit. Entrenchment affects the problem of self-amendment in many ways. When a constitutional rule is entrenched, we must ask whether the AC can repeal the entrenching language and amend the previously protected rule. This aspect of the omnipotence of the AC is the subject of this section. The entrenchment and self-entrenchment of the AC itself, or of parts of the AC, is the subject of the next, Section 9. This is a good place to warn the reader that the topics of Sections 8 and 9, and especially their detailed discussion, can cause dizziness in proportion to one's concentrated attention. Entrenchment bars amendment, and entrenchment of the AC bars self-amendment. But to the extent that an AC can repeal entrenching language it can reassert its power over the protected provision of law. When it is itself the protected provision we may well wonder whether it can repeal the entrenching language in order to amend itself, an act I will call "self-disentrenchment". It appears to present the challenge of a prisoner who can only escape by opening the outer door of the prison before the inner cell door. 42