Paradox of Self-Amendment by Peter Suber On this view, a clause that authorizes its own amendment or that actually limits itself by self-amendment is, perhaps surprisingly, a contradiction. On this view amendment clauses are immutable except by illegal or extra-legal means such as revolution. Alternately, any act of self-amendment considered valid by legal authorities is simply a case of "peaceful revolution". The existence of the contradictory Barber was overruled by logical and metaphysical rules that we are not inclined to bend or qualify just to save the Barber. The Barber is doomed because we believe that what is contradictory is impossible or cannot exist. We may be wrong about this, but it is a strongly held belief that we will not give up just to open the doors of existence to the Barber and his ilk. Is the omnipotent sovereign or self- applicable amendment clause doomed by an equally inflexible judge? Do we believe law is governed by the principle of non-contradiction as ardently as we believe that material reality is governed by it? If we are inclined to this belief, we should at least not be dogmatic about it, because we know that judges and legislators often make vague, inconsistent, and incompetent judgments, which are authoritative for all that. Knowing this, might we give up the belief in order to explain the legality of a commonplace procedure accepted in all jurisdictions where it has been tried? The paradox of self-amendment is one of the best forms in which to study the paradox of omnipotence. The idea of a sovereign or a deity is vague and requires much preliminary specification before the contours of the problem can come into relief. But the preliminary specification often imports unnoticed theoretical commitments. By contrast, an amendment clause is as plain as language (however much that may be), and open to inspection. Moreover, self-amendment is not hypothetical, as questions about deities and sovereigns are for many, and it is not metaphysical, as deities and sovereigns tend to become. To say that an amendment clause applies to the whole constitution of which it is a part, therefore including itself, is intelligible and even plausible. The self-application of an amendment clause leads to a result, an amended clause, that is easily grasped in a way that the state of diminished divine power is not. Finally, if we like we can try to amend an amendment clause and see what happens (see Appendices 2 and 3). If we limit or repeal the clause through self-amendment, and no court invalidates the act, then we must confront the important fact that the laboratory test apparently showed what is legal without touching the question what is logical. Even if we ignore the possible self-application of an amendment clause one could argue that there is a paradox in the very presence of an amendment clause in a constitution. It also resembles the paradox of omnipotence. The constitution is apparently supreme and unlimited by higher law, qualities that also define omnipotence. Changing the constitution from below, say, by statute, is impermissible because a derivative authority cannot alter the supreme authority.[Note 21] But can the constitution change itself, or use its supremacy against itself? A change in the text may well be regarded as a limitation or infringement on its supremacy, for each clause partakes of the supremacy of the whole, and is thereby immunized from displacement from the apex of authority, at least by lower level rules.[Note 22] Any significant change will permit what was once forbidden or forbid what was once permitted. In that sense any significant change will contradict earlier rules, perhaps including the rules that authorized the change (see Section 12.C). But if so, then the amendment clause, even applied irreflexively (to provisions other than itself), is a paradoxical authorization of self-limitation. The self-applicability which alone could justify the result may nevertheless, like that of the omnipotent legislature or deity, be a surprising contradiction. If we are acquainted with the history of inconsistent cases on constitutional law, then we may tend to think of constitutions as non-paradoxical despite inconsistent rules or interpretations. We may even think of constitutions as so fundamental (or supreme) that they undercut (or transcend) the "requirement" to be non-paradoxical and the damage that ordinarily arises from contradiction. This may be so, on the evidence that legal systems, when they assert a contradiction, do not "crash" like computer programs, or blip out of existence like Barbers caught in contradiction. But it does not explain the curious capacity to absorb and tolerate contradiction. Or we may think of constitutions as containing an implied limitation on their validity or supremacy: "valid and supreme until amended". This qualification may or may not rid us of the paradox (see Section 10). But in any event it leaves us with qualified supremacy, just as comparable tactics leave us with qualified omnipotence and limited sovereignty. We may be content with finite deities and sovereigns, but a finite amendment power may imply the immutability of some legal rules (see Section 8), a conclusion that is much less palatable. If the supreme clauses of the constitution may be replaced by a method that it provides for itself, then may an amendment clause replace itself by its own method? The question is logically similar to the question whether an omnipotent being could limit or annihilate itself by its own power. For a power, authority, rule, agent, or entity to displace itself from supremacy, or dethrone itself from omnipotence, is prima facie paradoxical like the Barber. The spectacle of such reflexivities in law creates a dilemma for jurists: to admit that, if the self-amendment is impossible, then the system contains immutable rules (the supreme amendment clause), or that, if self-amendment is allowed, then the system contains contradiction (self- amendment). D. Logical v. legal approaches to self-amendment To answer the question of self-amendment a logician might lay out all the relevant rules of the system, attempt to make explicit all principles and procedures taken for granted or within the discretion of judges to employ, and then decide whether self-amendment is permissible under the rules. Permissibility would be a function of consistency and deducibility. If self-amendment is either inconsistent or beyond the scope of available premises, then a logician might sketch out a variety of premises that would allow self-amendment and render it self-consistent, preferably without making other common legal procedures thereby impermissible. If the plethora of available rules and principles is internally inconsistent, or if it authorizes inconsistent outcomes, which will almost always be the case, the logician might try to show which consistent subsets, if any, would permit self-amendment and which have the least destructive impact on the rest of law. 6