Paradox of Self-Amendment by Peter Suber We must also distinguish complete and incomplete entrenchment. Complete entrenchment protects a passage from amendment per se, while incomplete entrenchment only protects it from ordinary or routine amendment. Incomplete entrenchment may suspend the usual amendment procedures for the entrenched passage and require a special, more difficult procedure. Whether complete entrenchment protects rules from amendment immutably should not be prejudged from the word "complete". If an entrenchment clause said, "rule R can be amended only by convention" or "only by 90% supermajorities in each house and the concurrence of 80% of the states", then it would describe incomplete entrenchment. That, obviously, would do little good unless it entrenched itself to the same or greater degree of difficulty. For this reason entrenchment clauses are often thought to imply self-entrenchment. Hence in corporate charters, much more often than in constitutions, the articles requiring supermajority votes to amend certain basic rules are usually and prudently self-entrenched incompletely at the same supermajorities. Complete entrenchment, by contrast, would be indicated by a simpler clause, such as, "rule R may not be amended" or, in the case of complete self-entrenchment, "this section may not be amended". The significance of the distinction is shown by Hart who argued (not in these terms) that in a nation whose legislature or parliament has continuing omnipotence, one parliament cannot make laws that its successors cannot repeal, but it could make laws that its successors could repeal only with special, difficult procedures.[Note 7] In the terms we are using here, continuing omnipotence is compatible with incomplete entrenchment and self-entrenchment. It is compatible with complete entrenchment and self- entrenchment only if the completely entrenching language is itself subject to amendment. Complete entrenchment clauses may be mutable if they are not themselves entrenched or if they are only incompletely entrenched. If they are completely self-entrenched, then they seem to be immutable; they may be mutable only if the AC is omnipotent in such a way that it can transmute immutable rules. Hart argues that the question whether a parliament in a nation of parliamentary supremacy has continuing or self-embracing omnipotence is an empirical question.[Note 8] In England the rule that parliament cannot pass laws that its successors cannot repeal is a venerable legal axiom.[Note 9] It implies continuing power and, if parliament is otherwise omnipotent, then continuing omnipotence.[Note 10] That the federal and state legislatures in the United States are just as firmly barred from making laws that their successors cannot repeal is not as well known or commonplace, but it is the repeated holding of American courts facing the question.[Note 11] This implies continuing power, but because our legislatures are not supreme, it does not imply continuing omnipotence. Similarly, neither the English parliament nor an American legislature can irrevocably limit its own power or the power of its successors to make or unmake law.[Note 12] There are no comparable holdings, at the federal or state levels, that an AC cannot bind its successors. Hence the AC, which is supreme, might be omnipotent without being continually omnipotent. These empirical tests are decisive when available. An AC is known to be self-embracing if it has actually been used to amend itself or to limit its future power, without interference from courts; it is not, however, thereby known to be omnipotent. An AC that has never amended itself and that has never been prevented from amending itself by a court may have the potential for either self-embracing or continuing power, depending on future history. It may determinately be one or the other, by the intent of the framers, dicta of past courts, or some other test, and become the other as future courts invoke new criteria. Alf Ross is not content with these empirical tests, however. If an AC has been used to amend itself, and if courts have not struck down the attempt or the product, then Ross still wants to be able to say that the AC cannot have self-embracing power. Self-application of all kinds is logically objectionable, he says, legal history notwithstanding (see Section 5.D). If an AC is omnipotent, we know a priori that it must have continuing rather than self-embracing power, Ross says. This position, in a word, is preposterous. It applies only to abstract, logical rules whose validity can be a matter of a priori reasoning. Legal rules are legally valid or invalid for legal reasons alone. Legal reasons often include logical reasons, but need not, and in all cases include fewer than all logical reasons and more than merely logical reasons. Ross offers no legal reason whatsoever why an AC could not be self-embracing or self- applicable, but concludes that the illogical is illegal. Any jurisprudence that declares that what is legal by legal tests may be illegal by logical tests is to that extent false and deficient. We might say that just as the laws of the United States make no exception for the conscience of Henry David Thoreau,[Note 13] they make no exception for the principle of non-contradiction or the logical scruples of Alf Ross. Ross's argument can only legitimately conclude that courts that have failed to prevent or nullify acts of self-amendment have erred. He cannot conclude that the correction to that error is already law. Now he is in the absurd position of saying that what the courts uphold as law is not law. For the same reason, as will become important below, logic, politics, and morality may suggest many "implied limitations" on the amending power, and these might become law if courts are persuaded to heed them. But if courts have not yet heeded them, then these limitations cannot be said to exist in law, even if their omission is illogical, immoral, or tragic. Even the rich history of self-amendment among the states (Appendix 2) is inconclusive on the question of this section. It may show that self- amendment is legally permissible in the United States, but it does not show whether an AC can limit itself irrevocably through self-amendment, and hence whether it can be omnipotent in either of the two senses we have discussed. No attempted act of self-amendment, so far as I know, has ever been enjoined or nullified by an American court on grounds even remotely related to the logic of self-application.[Note 14] Therefore our history of permitted self-amendment cannot reveal whether some conceivable self-amendments would be impermissible, for example, for violating an irrevocable self-entrenchment clause, contradicting the continuity of continuing omnipotence, or transcending the power of a non-omnipotent amending power. 43