Paradox of Self-Amendment by Peter Suber constitution itself. But much basic change can occur without any strict self-amendment taking place. The legislative branch may be abolished, the executive absolutized, and cruel punishments permitted by ordinary amendments, without any legal entity authorizing its own change except in the broad sense in which any amendment comprises the use of the constitution's supremacy against itself (see Section 1.C). The articles pertaining to the legislature, executive, and punishments would not have authorized their own change or repeal; the AC would have authorized these changes. The broad view that any amendment is self-amendment blurs the importance of the inner articulation of parts in a constitution. Genuinely reflexive, or circular, self-amendment and self-repeal would not occur unless the AC were used to amend or repeal the AC itself.[Note 9] It is the latter that I wish to explore. Is self-amendment an inherently discontinuous act, and hence inherently unlawful? When we think about a rule being displaced by a successor, we may imagine a temporal seam or adjacency. If the predecessor is the sole authority for the successor, then there is (or may as well be) no temporal overlap to guarantee continuity. But is overlap necessary? Do the bygone rules have any present power to authorize their successors? (See Section 10.) We should resist the temptation to cast the problem wholly as a logical problem. The legal version of the paradox of omnipotence is first and foremost a legal problem, just as the theological version is primarily a theological problem. Hasty or exclusive treatment of them as logical problems may overlook the theories, very significant if true, that law-makers and deities may perform contradictions. In this sense, logic is just another metaphor for law. Like the metaphor of seams and overlapping, it should be used to reach clarity and discarded when it prevents us from seeing the reality as it is. If the rule or power embodied by the words of an AC is abstracted and formalized, and treated solely as a proposition in a logical system rather than a rule in a legal system, then we may judge questions of self-application, limitations on power, and so on, by the false precision of formal logic. That is, we may let formal consistency be the supreme criterion of permissibility, as it is in logic, regardless of its place in the hierarchy of criteria in law. If the resulting view denies legality to acts which are legally commonplace and never challenged, then the model must be wrong, not as logic, of course, but as law. An AC, then, allows the basic document to change in ways that would be revolutionary but for their permissibility. To speak of an "amendment clause" and of the constitution as a "document" is clearly to engage more than just words. The words of an AC create a power, and simultaneously channel and regulate that power. The reflexivity of an AC amending itself is more than the self-reference of words; it is also the self-application of a power. If legal rules and powers are more than the words defining them, then we are dealing as much with causation as with inference in discussing how they may be affected. I will limit my discussion to the problem of the authority of an AC to amend itself (Part One) and some variations of this problem, chiefly concerning alternative methods of amendment and self-amendment (Part Two). If an AC can validly amend itself, then the new AC would be authorized, like any other amendment, by the old AC and by the constitution itself from which the authority of the old AC derived. It turns out that the authority of the constitution itself must be addressed in order to explain the legality of self-amendment (see Section 7). Sometimes a constitution is authorized by the AC of its predecessor, but that merely postpones the question of validity to the predecessor. I will generally defend H.L.A. Hart's theory that basic rules of law are made valid by the acceptance and usage of the people and officials, which I take to be a variant of Locke's consent theory. More precisely, I will argue that Hart's acceptance theory can explain the legality of self-amendment, and, while it has theoretical difficulties of its own to overcome, it is more plausible on its merits than the formalist model of law as a quasi-logical system (see Sections 6 and 21.D). B. Amendment and democracy The AC of a constitution, and even the technical problem of self-amendment, assume special importance on the classical American or Lockean consent theory that law and government derive their legitimacy from the consent of the governed. If the people's consent wanes and revolution is to be avoided, then a lawful method of basic change must be provided. For supreme, constitutional rules, the procedure of change must be on a par with the constitution itself. The AC provides such a method. The pressure to change the constitution, and hence to use the AC, is admittedly irreflexive most of the time. Slavery must be abolished or alcohol prohibited. Rarely do citizens clamor for a change in the rule that authorizes change of the rules. But it has happened, and most of the clamor has focused on making the amendment process either much more difficult or much less difficult.[Note 10] The difficulty of the amendment process is closely related to the ability of citizens to manifest their consent to the constitution and hence (under a consent theory) to authorize it to govern them. One might well argue that the citizens who vote to ratify a constitution are bound by it under a consent or contract theory. Those who consented to a ratification election but voted against the constitution, and those who consented to the product of all lawful procedures but voted against every initiative, could be bound under a simple extension of the theory. But what about the future generations that never voted and never consented to put ratification to a vote? Consent theorists must say either (1) that the constitution remains authoritative despite the lack of manifestations of consent by future generations, or (2) that it has continuing authority if and only if the people manifest continuing consent.[Note 11] The former alternative makes the first generation the proxy of all subsequent generations, and justifies the imposition of a system of law on a population whether or not it would have consented and whether or not its members would have appointed their ancestors as proxies. If that is plausible, at least it departs widely from classical consent theory and any authentic sense of consent. It also raises the omnipotence paradox of a sovereign binding its successors or its own future conduct, perhaps irrevocably. The second alternative requires some continuing show of authorizing consent which might well be inferred from the citizens' use and contentment not to use their AC.[Note 12] 12