Paradox of Self-Amendment by Peter Suber 10. See e.g. Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 792 (1973), and In Re Lamb, 34 Ohio App.2d 85, 296 N.E.2d 280, 289 (1973). 11. An example of the latter from 19th century Arkansas is offered by David Y. Thomas, "Amending A State Constitution By Custom," American Political Science Review, 23 (1929) 920-21. 12. Anon., "Usage as Modifying the American Constitution," Solicitors' Journal, 70 (July 10, 1926) 785-86, at p. 786. 13. Bora Laskin, "Amendment of the Constitution: Applying the Fulton-Favreau Formula," McGill Law Journal, 11 (1965) 2-18, at pp. 5-7. Like the United States, Canada officially rejects desuetude. 14. See Douglas P. Elliott, "Cloak and Ledger: Is C.I.A. Funding Unconstitutional?" Hastings Constitutional Law Quarterly, 2 (1975) 717-55. For a general study of such difficulties, see Walter F. Dodd, "Judicially Non-Enforceable Provisions of Constitutions," University of Pennsylvania Law Review, 80 (1931) 54-93. 15. See Orfield, op. cit., at pp. 9, 53, 78ff, 80.n.134, 156. 16. Arthur Machen, who believes the Fifteenth Amendment is void in part because it has never been enforced (see note 5 above), also believes it is void in part because it was defectively adopted and never the subject of acquiescence by a major region of the country, the South. Op. cit. at p. 191, he says, [The Fifteenth Amendment has] never been acquiesced in unreservedly throughout the country. Indeed, it has never been loyally observed in places where its effect was small. In large portions of the country it has been persistently evaded and overridden, now by force and now in other ways. 17. Of course bad reasoning usually finds itself justified, just as mediocrity rates itself above excellence. Formalists stumble a bit when confronted with the fact that illogic can be self-justified, that is, justified by illogic, at least as well as sound logic can be self-justified, and even better insofar as self-justification is prohibited to sound logic as a kind of question-begging. 18. Without discussing desuetude, Morton J. Horwitz superbly charts "The Rise of Legal Formalism" in America in Chapter VIII of his The Transformation of American Law, 1780-1860, Harvard University Press, 1977. 131