Paradox of Self-Amendment by Peter Suber Section 2 Preliminaries: Amendment Clauses One of the most important subjects that can engage the attention of the statesmen and people of this country is the extent and the scope of the power to amend the Constitution of the United States. George Tichnor Curtis[Note 1] A. Amendment and revolution, lawful and unlawful change of law Statutes and ordinary enactments cannot change constitutions. Adjudications can settle, even change, the interpretation of constitutions. Some judicial interpretations may take us beyond the limits of the reasonable alternative meanings of the language (see Section 15). But while many "judicial amendments" have vital consequences, the public and the judges themselves would not tolerate implementing certain basic changes by judicial review. Where judges fear to tread, and when change is intended to be fundamental and long-lasting, formal constitutional amendment is necessary. Constitutions must change, for the societies they govern change constantly and if the constitution lags too far behind, then the rule of law itself is jeopardized. Lester Orfield speculates that the Civil War may have been prevented if the federal constitution had been easier to amend.[Note 2] Adlai Stevenson believed that the difficulty of amending the Illinois constitution before 1950 made evasion of the law a practical necessity in order to avoid "anachronisms" of the Illinois constitution.[Note 3] The constitution must change peacefully and legally, and with roughly the speed and depth of changing circumstances and public dissatisfaction. So long as we are not ready to let courts implement all constitutional change through judicial review and reinterpretation, then only a clause within the constitution itself[Note 4] can provide the authority for most substantive change and the peaceful adaptability within which civilization may flourish. This value was well expressed by John W. Burgess in 1891:[Note 5] [The amendment clause] is the most important part of a constitution. Upon its existence and truthfulness, i.e., its correspondence with real and natural conditions, depends the question whether the state shall suffer the alternations of stagnation, retrogression and revolution. A constitution, which may be imperfect and erroneous in its other parts, can be easily supplemented and corrected [through an amendment clause; otherwise] error will accumulate until nothing short of revolution can save the life of the state. The basic design of government in a constitutional state is embodied in the constitution. An amendment clause (hereafter, "AC") not only allows, but also structures, the change of the constitution under the rule of law.[Note 6] Basic change brought about under the authority of a constitution, through its AC, preserves the continuity of law in three ways. First, evasion and disregard of anachronistic provisions and outright revolutionary breaks with them are made less urgent, and to that extent less admissible legally and less justifiable politically. Second, the same authority or constitution is recognized as valid throughout the change, and loses nothing of its validity by reason of the change except the old provision in its particularity that was modified or repealed. Third, the same state that existed before the change exists after the change. The continuity of law, its identity through change, is a metaphysical idea with crucial legal significance. It is equally important for each of two opposing schools of jurisprudence that we may call the formalist and the non-formalist. These two schools differ primarily on the relations of law to social, political and other "alegal" circumstances, and on the valid sources of authority for legal change. If we conceive law formally, then new law is authorized only by old law; if we conceive it non-formally, then it may be authorized also by present, extra-legal sources of authority such as the consent of the people, the might of the army, or the will of Jehovah. Therefore, for the formalist all legal change is revolutionary and unlawful if it does not proceed from prior law in an unbroken chain of permission and authority, which presupposes and entails a continuing identity for the legal state. For the non-formalist the same state may exist before and after basic change if the consent of the people uninterruptedly permitted, supervised, and ratified the change; the same may be said of the vigilant eyes of armies and gods. If this continuity is lacking, both the formalist and the non- formalist will hold that the legal change brought by the discontinuity was unlawful or invalid. The difference is that this invalidity is much harder to repair for the formalist than for the non-formalist. If the new law is not authorized by prior law, then the formalist must resort to legal fiction to validate it, for example, an enactment that declares that the gap never occurred or that the new law was properly authorized by antecedent law.[Note 7] Without resorting to fiction, the formalist theory requires that change be continuous or illegal. The non-formalist may make the same appeal to curative fiction, but may also point to extra-legal conditions that remained continuous while the chain of permission and authority was broken, for example, the consent of the people or the support of the army. Such a move implies that otherwise invalid law can be validated directly by alegal sources, not just by prior law. In this way both formalist and non-formalist theories of law distinguish between amendment and revolution, although to the formalist the line is rigid and to the non-formalist it is tentative and not a final difference of kind. Both allow revolution to be cured by subsequent ratification, and in that sense converted to lawful amendment, although for the formalist this must be through the sheerest fiction. The non-formalist may allow cure not only by ratification, but also by mere acquiescence or direct consent. For both, discontinuity invalidates, but can be cured retroactively. When cured, a history of legal change is a cumulation of lawful amendments, not a series of new beginnings.[Note 8] How can an entity (system, rule, power, authority, agent) authorize its own change or destruction? Let us be precise. We are speaking of the modification of a constitution. Such change is authorized, when authorized, first by the AC, and second by whatever it is that authorizes the 11