Paradox of Self-Amendment by Peter Suber broken in Griggs v. Duke Power Co., 401 U.S. 424 (1971). District lines that deprive voters of equally weighted votes lead to unrepresentative legislatures, which lead in turn to the perpetuation of such lines. This circle was broken in Wesberry v. Sims, 376 U.S. 1 (1964). Indigent criminal defendants who could not pay their fines formerly had to stay in jail until they could do so or else "work them out" in jail at a miserly rate. This not only prevented such defendants from earning the money to pay their fines, but also kept them poor. This circle was broken in Williams v. Illinois, 399 U.S. 235 (1970). The state of Idaho formerly favored men over women as administrators of estates. It argued that this decision was not arbitrary because it reduced the workload on probate courts in deciding who is most fit to serve as administrator, i.e. it is not arbitrary because there are some advantages to arbitrary preferences. This vicious circle would justify any kind of discrimination. (It saves court time to decide contract cases in favor of the richer party, and police time to arrest only black people.) This circle was broken when Idaho's preference was struck down in Reed v. Reed, 404 U.S. 71 (1971). Before the Social Security Act was passed, states did not want to tax the employers in their jurisdictions to provide a relief fund, for that would have driven them out; or they did not want to be the first or only state to tax employers. In upholding the constitutionality of the Social Security Act, Justice Cardozo recognized the need to break this vicious circle with federal action. Stewart Machine Co. v. Davis, 301 U.S. 548 (1937). A good example of a court creating a vicious circle when it had an opportunity to break one is Warth v. Seldin, 422 U.S. 490 (1975). In that case the plaintiffs claimed that they were too poor to buy housing in Penfield, New York, on account of that town's zoning ordinances; hence they claimed to be victims of unlawful discrimination. The Supreme Court held, in effect, that the plaintiffs were too poor to have standing to complain of their poverty. Because they were so poor, they would be unable to buy housing in Penfield even if the zoning ordinances were changed; hence they were not actually injured and lacked standing to complain. N. To know before we know A recurring type of vicious circle occurs when an inquiry designed to yield knowledge of x is triggered, or can only be triggered, by knowledge of x. If we could not know before we knew, then the mere logic of the situation would prevent us from ever starting the inquiry. Another form of the same circle occurs when we must make a decision based on knowledge to be gained from the inquiry triggered by our decision. Normally Congress has the power to investigate any matter on which it may legislate. It cannot legislate on wholly intra-state commerce, so it cannot investigate wholly intra-state businesses. But it may investigate a business to determine whether it is wholly intra-state. This investigation seeks its own justification. Either it will be a permissible investigation in any event, or it may in principle discover that it had no right to discover anything. Either Congress knows before it knows (perhaps corrigibly) that it may investigate that business, or it possesses a second type of valid investigative power. U.S. v. DiCarlo, 102 F.Supp. 597 (1951). Again, the investigative power of a legislative committee is normally limited to the scope of the committee's legitimate legislative interest. If a witness refuses to answer a question she considers irrelevant to that legitimate interest, then the committee could formerly hold her in contempt, as if the committee alone could decide such relevancy and as if it knew before it knew that it was legitimate to compel the answering of the question. Bart v. U.S., 203 F.2d 45 (1953), rev'd 349 U.S. 219 (1955). The dissent in Gibson v. Florida Legislation Committee, 371 U.S. 539 (1963) explicitly recognizes the "know before we know" nature of the problem: the witness' answer may be compelled only by a claim of relevancy that "requires an investigating agency to prove in advance the very thing it is trying to find out." The court was just as explicit in Douglas v. California, 372 U.S. 353 (1963) when it said of a California rule giving indigents the right to counsel on appeal only if the appellate court thought the indigent's case had merit, that "[t]he appellate court is forced to prejudge the merits before it can even determine whether counsel must be provided." Injunctions are normally given as remedies only if the plaintiff can show that irreparable harm would otherwise result to her. When the injunction halts an action that the plaintiff could sue about if it occurred, which is usually the case, then the granting court is really deciding the merits of the plaintiff's future case before the future case materializes. In judicial investigations problems arise that are similar to those created by legislative investigations, e.g., when a witness testifies to the grounds of her own competence, such as possession of personal knowledge, or testifies to the existence of her own privilege. In criminal trials witnesses may invoke the Fifth Amendment privilege against self-incrimination without triggering any inquiry into the merits of the invocation. Obviously if witnesses could be compelled to give evidence that certain testimony would incriminate them, to justify invoking the privilege against self- incrimination, then the privilege would be pointless. So the privilege in effect makes certain claims self-warranting, or self-insulating and unreviewable. This does not stop courts from denying a witness' claim of self-incrimination occasionally, e.g. if immunity has already been granted. But normally the privilege is the witness' virtually for the asking, as if we knew before we knew that it was due —or as if we had decided that it is better all in all to err on the side of indulgence than stringency. The normal rule is that the claim of privilege is sustained unless it is "perfectly clear" that answering the question "cannot possibly" incriminate the witness. Hoffman v. U.S., 341 U.S. 479, 488 (1951), quoting Temple v. Commonwealth, 75 Va. 892, 898 (1881). 142