Paradox of Self-Amendment by Peter Suber Section 12: Introduction to Part Two A. The exclusivity of the federal AC If amendment can occur in many ways, then the possibility of the paradox of self-amendment can occur in many ways. The most direct form of amendment was considered in Part One: the direct application of the AC to the clause to be changed, the AC itself. That method of amendment raises so few extraneous problems that the issues of the paradox could be examined without distraction. Other forms of amendment will be considered in this Part. Those methods that do not take us into new legal or logical territory, or that reverse assumptions made in Part One, are summarized in this section, while methods requiring more discussion and exploration have sections to themselves. If the constitution can be amended by methods other than those in the AC, then the AC will be mutable even if self-amendment is not recognized. The "official" view in most states and in the federal system is that the AC is exclusive. Even if minor procedural defects in the adoption of a given amendment are curable by ratification or acquiescence, substantial compliance with the terms of the AC is necessary to the validity of any amendment.[Note 1] The exclusivity of the federal AC was strongly stated in Ullmann v. United States, 350 U.S. 422, 53 A.L.R.2d 1008, rehearing denied, 351 U.S. 928 (1956): Nothing new can be put into the Constitution except through the amendatory power. Nothing old can be taken out without the same process. Jameson put the exclusivity principle even more strongly:[Note 2] Even were the whole people, by unanimous action, to effect organic changes in modes forbidden by the existing organic law, it would be revolution. It would be revolution if not authorized, but under the acceptance model unauthorized change may be authorized ex post facto, and under the inference model subsequent fictions may deny the discontinuity. Jameson implies, however, that not even acceptance can overcome the exclusivity of the AC. His principle infringes upon the unqualified postulate of popular sovereignty, a consequence that was recognized and ratified in this context by Henry Rottschaefer:[Note 3] The legal assumption that sovereignty is ultimately vested in the people affords not legal basis for the direct exercise by them of any sovereign power whose direct exercise has not been expressly or impliedly reserved. Most state constitutions have clauses that assert popular sovereignty, and to that extent make it closer to an enforceable principle of law than a bromide of the campaign trail. In Iowa in 1883 a clause declaring that "all political power is inherent in the people" was held incapable of authorizing a constitutional amendment ratified by the requisite popular vote but not agreed to by both Houses of the General Assembly as the AC required. Koehler v. Hill, 60 Iowa 543, 14 N.W. 783, 15 N.W. 609 (1883). This may seem an unnecessary or undemocratic diminution of popular sovereignty, but the same principle can be expressed from the opposite perspective, as when this limitation on the people's power is asserted in the name of self-determination. In Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, 967-68 (1912) the exclusivity principle was expressed as a right to lawful government, not a violation of the right to popular sovereignty, or as a product, not a limitation, of autonomy.[Note 4] Koehler and Crawford manifest the paradox of omnipotence nicely, by showing that self-limitation is, first, an autonomous act, and second, a limitation of autonomy. They also raise the theme of Section 9, that all law is in a sense incompletely self-entrenched by requiring conformity to its own forms and procedures and forbidding its own change except through its own methods. The official view, that the AC is exclusive, is a good example of the formalist fiction asserting this sort of weak self-entrenchment in the face of contrary evidence. In Sections 14-19 I will explore six ways in which the federal constitution might be (and might have been) amended other than through the "exclusive" methods of Article V, even though two of them (Sections 14, 16) derive indirectly from Article V. The six methods are: amendment by sunset clause (Section 14), by judicial review and reinterpretation (Section 15), by implication or the lex posterior principle (Section 16), by treaty (Section 17), by an "inalienable right to alter or abolish government" (Section 18), and by desuetude (Section 19). The de facto permissibility of these methods varies. Some are clearly permissible, at least de facto (Sections 14, 15, 16), while others are doubtful (Sections 17, 18, 19). One is clearly permissible de jure (Section 14), and one is probably as fully recognized (Section 16), while the others are either subjects of reasonable disagreement as to their permissibility or "officially" considered beyond the exclusivity of the AC and not genuine rules of change for the constitution. None is expressly forbidden by the AC, bringing them within the diluted, permissible range of Jameson's principle. Three have a constitutional basis outside the AC (Sections 15, 17, 18) and two have a constitutional basis within the AC (Sections 14, 16). Their de facto permissibility is an argument in favor of the acceptance that recognizes them over the formalism that does not.[Note 5] Because they also represent the victory of covert over overt methods, with the assistance or active participation of the judiciary, they have raised the hackles of conservatives who wish that judges would only "discover" law. While the judicial role in these methods of amendment cannot be denied, it has often been subservient to the executive (Sections 17, 19). In any case, the threat of anti-majoritarian tinkering and usurpation may inhere in these methods, but their history shows them to have served as a check on majority oppression and a facilitator of majority rule when the latter is stymied by difficult amendment procedures. 88