Paradox of Self-Amendment by Peter Suber If the immutably continuing omnipotence of acceptance attempts to transmute itself, then it will fail in a sense that acceptance theorists can call objective and non-relative. If one generation attempts to disenfranchise acceptance by establishing a legal order that claims to derive legitimacy from the whim of the new autocrat or the ascertained whim of Jehovah, or anything but acceptance, then it may seem to that generation that acceptance is no longer authorized to define law. We certainly can imagine, or know cases of, shifts from popular sovereignty to more traditional military, religious, or elite foundations of legality. It would then seem that the legitimacy of the regime would not be subverted if acceptance waned or attached to an alternative. But this is just what is denied by the present theory. Even if the new autocracy cannot be said to be established through public and official acceptance, future generations may always overthrow the regime and establish an alternative that becomes law (as opposed to long-lasting, effective hooliganism) through public and official acceptance. The overthrow may be revolutionary in its violence or in its discontinuity with prior law, or it may be a constitutional amendment that replaces autocracy with democracy. For the acceptance theory, no generation can lose its power to define the ultimate premises of law through its acceptance. The people hold this power inalienably, though they may alienate it revocably in times of weakness, panic, or duress. Therefore, while acceptance may acceptably lie dormant for a time, it can always awaken to its own power; it cannot transmute its immutably continuing omnipotence, or irrevocably shift its powers to any other sources of law and authority. Further wrinkles in the theory of immutably continuing omnipotence and the possibility of revocable self-transmutation are explored in Section 21.C. C. Supposed limitations on the U.S. federal amending power The case for the omnipotence of the amending power is usually heedless of the paradox of omnipotence. A case in point is Raymond Uhl's defense of amendatory omnipotence.[Note 24] Uhl follows Austin's theory of sovereignty, which holds that the supreme authority is also omnipotent and autonomous. So when Uhl finds the federal amending power to be the supreme power in the American legal system, he automatically attributes to it all the other attributes of classical sovereignty. "It is legally omnipotent, unlimited, and illimitable....There is no legal restriction on the extent to which this power may go."[Note 25] Uhl ignores the fact that if the omnipotence he attributes to the amending power is continuing (illimitable), then it is already limited, and if self-embracing (unlimited), then it is limitable.[Note 26] Uhl claims that "express limitations" on the amending power, such as the requirement in the federal AC that no state be deprived of its equal suffrage in the Senate without its consent, "are but formal and at most can remain in force only so long as the sovereign permits them."[Note 27] He does not defend or elaborate this view, or consider difficulties such as entrenchment and self-entrenchment clauses. But his position seems to be that sovereigns cannot bind themselves, not even by their own laws, which suggests continuing omnipotence; but of course continuing omnipotence requires one immutable limitation on sovereignty. Uhl's only real argument for amendatory omnipotence is the following:[Note 28] If the power to amend is limited we must assume that there is some authority capable of establishing such limitations. The only power legally able to do this is that power which can change the Constitution of the United States. Any limitations, express or implied, on the exercise of this power are at most self-imposed and can be removed by the authority which created them. Here Uhl wins this conclusion too easily. First, he does not consider the possibility that self-imposed limitations may be immutable, for example through entrenchment or self-entrenchment. Second, the AC may be limited by original, not self-imposed, limitations. He seems to be saying that the sovereign can always free itself from its own laws (by repeal if not by privilege), which may be the case, but he shifts from regarding the AC as sovereign to regarding the people as sovereign.[Note 29] The people can undoubtedly overthrow a constitution guarded by any number of any kind of limitations on the amending power and even by limitations on the people's power to overthrow it. But whether an AC can do so is not at all an easy question, and not addressed by Uhl. Self-imposed limitations are not equally or obviously repealable. They may be entrenched or self- entrenched, or they may possibly limit or destroy the amending power irrevocably. While Uhl has a naive sense of the omnipotence of the amending power, this turns out to be rare in the literature. Most scholars have a naive sense of its limitation and non-omnipotence. The debate among jurists on the existence of implied limitations on the amending power turns for some on the question whether that power is delegated by the people. Delegated powers are often said to be limited or limitable per se.[Note 30] The opposite of a delegated power may be one inherent in government, not delegated by the people, or inherent in and retained by the people, never given up by delegation. This ambiguity plagues much of the discussion. Uhl, for example, denies that the amending power is a delegated power,[Note 31] but, as noted, his arguments shift back and forth between finding the sovereign amending power vested in the people and in the AC and the government. Edward Corwin, by contrast, believes the amending power is delegated and limited:[Note 32] Probably the amending power, like all other powers organized in the Constitution, should be regarded as a delegated, and hence a limited power, although this does not necessarily infer [sic] that the Supreme Court is vested with authority to determine its limits. The problem with most delegation theories is that they are vague or silent on the questions (1) why delegated powers must be limited, (2) whether the limits are revocable, and (3) how "delegation" should be traced back to intelligible social realities. 49