Paradox of Self-Amendment by Peter Suber In some reflexive hierarchies a form of circuitous self-amendment is sometimes possible. Stated broadly, the power to make statutes, for example, has some limited authority to amend the powers that can amend statutes. A legislature can overrule a court's interpretation of one of its statutes. It can actually disband, limit the jurisdiction, or impeach the members of most courts within its jurisdiction. While it cannot reverse a court's interpretation of the constitution or a court's decision to strike down a statute on constitutional grounds, it can avenge and deter such decisions. Moreover, in the federal and most state systems, the constitutional AC is supplemented by statutes that govern the incidental processes of amendment. These statutes give legislatures slightly more control over the constitutional basis of the power to make statutes, which supplements their control over the statutory and common law rules governing that power. In a similar vein, if an AC requires the legislature to call a constitutional convention when a petition of a certain type is received, then despite the mandatory constitutional language it has an operational discretion to refuse, knowing that courts will not order it to take action. This happened in Iowa in 1920 (see Appendix 2). It may also have happened at the federal level in 1929. The federal AC requires Congress to call a convention "on the application of the legislatures of two thirds of the several states" (Article V). The AC is silent on such questions as whether the applications must call for a particular amendment to the constitution or, if so, whether it must be the same type of amendment in each application (balance the budget, ban abortion, etc.), and whether the applications must occur within a certain span of time. Nor has Congress yet answered these questions with supplementary legislation. Two- thirds of the state legislatures had applied to Congress by 1929, requesting a convention, although not all requested the same type of amendment and three of the applications dated back to 1788 (Virginia), 1789 (New York), and 1833 (Alabama).[Note 29] Congress did nothing, even after Wisconsin, the last state needed for the two-thirds supermajority, summarized the history of applications and reminded Congress of its duty under Article V.[Note 30] The power to make statutes may attempt to augment itself in a way that is impermissible under the constitution, namely, by statute. The power to adjudicate may strike down the offending statute. And the legislature may deprive the courts of jurisdiction over the question and try again. In that way a genuine change in legislative power would have been brought about by legislation, despite a constitutional obstacle that prevented direct self-amendment (for self-augmentation) of the legislative power. Whether such a change is "actually" illegal is a question that can only be answered if one finds it meaningful. Many jurists, typically just those most likely to affirm Hart's acceptance theory, would find it meaningless to speak of the legality or illegality of an act beyond any court's jurisdiction, especially one acquiesced in by the people and officials of the system. Indeed, the Iowa legislature in 1920 and Congress in 1929 undoubtedly got away with their inaction not only because courts will not order legislatures to act, but also because the people tolerated the inaction. Clear language of the constitution may have been violated or evaded, but illegality is much more than the abstract fact of disagreement between conduct and prescriptive language, just as inconsistency in law is more than the abstract disagreement of two legal rules. Illegality may exist only when determined to exist by an institution under a grant of authority to decide such questions. If a tree is felled in the King's forest and no court has jurisdiction to hear the action, does the King's prosecutor have a sound basis to claim illegality? Notes 1. See State ex rel. William T. Thompson v. Winnett, 78 Neb. 379, 110 N.W. 1113, 10 L.R.A.(n.s.) 149 (1907), West v. State, 50 Fla. 154, 39 So. 412 (1905), Constitutional Prohibitory Amendment, 24 Kan. 700 (1881), and Green v. Weller, 32 Miss. 650 (1856). 2. John Alexander Jameson, A Treatise on Constitutional Conventions: Their History, Powers, and Modes of Proceeding, Callaghan and Co., 4th ed., 1887, at p. 559. 3. Henry Rottschaefer, Handbook of American Constitutional Law, West Pub. Co., 1939, at p. 8. 4. Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, 967-68 (1912): The people have a right to amend their Constitution, and they also have a right to require amendments to be agreed to and submitted for adoption in the manner prescribed by the existing Constitution, which is the fundamental law. If essential mandatory provisions of the organic law are ignored in amending the Constitution of the State, and vital elements of a valid amendment are omitted, it violates the right of the people of the state to government regulated by law. 5. Until 1982 the constitution of Canada had no AC that Canadians could use themselves; they had to petition the British Parliament to act, if it would, on their suggestion. Apart from the question of sovereignty raised by the omission of a "patriated" amendment power, formal amendment for Canadians was simply more difficult than it has ever been for Americans. Hence Canadians relied even more than Americans have on "unofficial" methods of amendment. One such amendment is well-treated by J.R. Mallory, "Amending the Constitution by Stealth," Queen's Quarterly, 82 (1979) 394-401. 6. See 158 A.L.R. 512. 7. In Section 7.B I quoted Hart to the effect that contracts and treaties bind only if made within a system containing a rule which says that they bind. This may be called the irreflexive view of contract: some extrinsic rule is needed to make the intrinsic elements of a contract binding between the parties. On the other hand, the reflexive view of contracts holds that mutual promises (perhaps with consideration, intent to be bound, etc.) bind the parties without any extrinsic rule, not only morally but in law; contracts create law ex proprio vigore or by their own strength. Those who 94