Paradox of Self-Amendment by Peter Suber For comparison, our constitution was adopted when 9 of the 13 colonies ratified it, which is 69.23% approval. This overlooks the fact that a ratification by 9 established the constitution only for those 9 and could not bind dissenters, and the fact that unanimous consent was eventually received. It also overlooks the fact that 69.23% (9/13) approval of the colonies is not at all equivalent to 69.23% of the national population. If only the least populous 9 states had ratified, then only 56.74% of the population would have approved. Peter Suber, "Population Changes and Constitutional Amendments: Federalism versus Democracy," Michigan Journal of Law Reform, 20, 2 (Winter 1987) 409-90. But if we disregard this, and look at the number of states or colonies needed to ratify, as if their approval rates were roughly proportional to the people's, then we can make the comparison to the simplified situation sketched above. Amendments require 2/3 of each House of Congress and 3/4 of the states. If the higher hurdle is taken for these purposes, then amendment requires 75% consensus. If we try to free this picture of the defects of simplification, and factor in the facts that the original ratification could not bind dissenters and that counting states is not equivalent to counting people, and if we try to blend the 2/3 and 3/4 requirements, then we might well conclude that it is more difficult to amend the federal constitution than it was to adopt it, and hence, by my hypothesis, that its legitimacy has declined. 14. The concept of surcharge is borrowed from Mortimer and Sanford Kadish, Discretion to Disobey: A Study of Lawful Departures From Legal Rules, Stanford University Press, 1973, pp. 27-28. Their source for the concept was W.D. Ross, The Right and the Good, Oxford University Press, 1930. Surcharge is the residual obligation or feeling of obligation to obey the law which remains after a particular legal duty has been neutralized by a conflicting moral duty, by the obsolescence of the rationale for the legal rule, or by a conflict between the legal rule and its rationale —in short, when the normal reasons for obeying the law are inapplicable. It is roughly the sense of obligation to obey the law simply because it is the law, as opposed to the obligation to obey the law because it is good, wise, rational, or beneficial to do so. 15. In order to secure our inalienable rights "governments are instituted among men deriving their just powers from the consent of the governed..." Declaration of Independence, third sentence. The constitution does not declare the source of its authority, in consent or otherwise, except in Article VII by declaring itself established upon ratification in state conventions, which may imply some form of consent theory. Article VII might imply the necessity of state consent alone, not the consent of the people, for only states were required to ratify. But on the other hand, the constitution was ratified by state conventions, not state legislators, which some have taken as proof of the national, as opposed to the merely federal, character of the constitution. Orfield, op. cit., at 53. But note that in Federalist #39 Madison says that the constitution is "neither a national nor a federal Constitution, but a composition of both." For the view that the consent of the people, rather than the states, is expressed in conventions, see Section 16. The most direct method of canvassing the people's consent, popular initiatives in proposing amendments and popular referenda in ratifying them, are not provided in the federal AC, Article V. Nor can states choose to ratify federal amendments by referendum. Hawke v. Smith, 253 U.S. 221, 10 A.L.R. 1504 (1920). 16. I have not seen an argument that ties the consent theory in this way to the difficulty of the amending process, although the connection is implied by those who believe that the true sovereign, a being not limited by any body and limiting all others, is the amending body. See Orfield, op. cit., at 152-67; William P. Potter, "The Method of Amending the Federal Constitution," University of Pennsylvania Law Review, 57 (1909) 589 at p. 592; Bruce Williams, "The Popular Mandate on Constitutional Amendments," Virginia Law Review, 7 (1921) 280 at p. 293; Raymond Uhl, "Sovereignty and the Fifth Article," Southwestern Social Science Quarterly, 16 (1936) 1 at p. 15; State ex rel. McCready v. Hunt, (1834) 2 Hill L. (S.C.) 1, 61, 108, 165-72, 221, 259-63. Also see Section 8, below. Continuing consent through an amending power that is not too difficult to use is also implied by the classical position, which, as stated by Hobbes, asserts that the ultimate law-maker "is he, not by whose authority the laws were first made, but by whose authority they now continue to be laws." Thomas Hobbes, Leviathan, Collier Books, 1962 (original 1651), p. 200. See also Henry Sidgwick, The Elements of Politics, 1891, at p. 602: "I think we must attribute supreme power to any individual or body...which admittedly can withdraw power at will from a government otherwise supreme." 17. See Alfred C. Oppler, Legal Reform in Occupied Japan: A Participant Looks Back, Princeton University Press, 1976, pp. 43-49; John M. Maki (ed.), Japan's Commission On the Constitution: The Final Report, University of Washington Press, 1980, pp. 62-86. 18. Oppler, op. cit., cites Saito Chu, "Invalidation of the Constitution," Japan Times, August 27, 1961. 19. John Maki, op. cit. at p. 347. In general see Sandra B. Burman and Barbara E. Harrell-Bond (eds.), The Imposition of Law, Academic Press, 1977. For the more difficult question of the validity of the people's consent not to amend, when that "decision" might reflect ignorance or indifference, see Section 7, note 2. 20. For a simplified account of the considerations that might go into determining that optimal level of difficulty, see the introduction to the game Nomic in Appendix 3. Playing the game with greedy, ambitious players with training in law or logic should also give one a lively sense of the importance of reaching that optimum. A more discursive treatment may be found in John Dickinson, "Legal Change and the Rule of Law," Dickinson Law Review, 44 (1940) 149-61. Dickinson argues that mechanisms of legal change should preserve the values of continuity, consistency, reciprocity of rights and duties, individualism, and restraints on power. 21. In Section 8.C the theory of legitimacy sketched in this section will directly bear on an aspect of the paradox of self-amendment. See also Section 21. 15