Paradox of Self-Amendment by Peter Suber Section 14: Amendment by Sunset Clause A. Sunset clauses in American constitutions A constitutional provision could say of itself that it automatically expires at a certain date. Because repeal is a form of amendment, such "sunset clauses" are effective rules of amendment. If an AC is used to adopt a new rule with a sunset clause, then the subsequent expiration (repeal) of the rule may be said to have been authorized by the AC. But I prefer to say that it was directly authorized by the sunset clause, a valid constitutional rule in its own right, and indirectly authorized by the AC. This usage is consistent with present practice, for we say that an existing constitutional amendment, for example, is authorized by the AC, not (except indirectly) by the authority that authorized the AC. The AC of the federal constitution, Article V, came into being with three limitations on its power, two of which were subject to sunset clauses. Those two limitations provided that no amendments to Article I, Section 9, clauses 1 and 4, could be made until 1808. Substantively these limitations protected the importation of slaves and prohibited some capitation taxes for about 20 years. When the sunset clauses protecting these clauses expired in 1808, a form of self-amendment occurred. Amendment by sunset clause had affected the AC itself, removing two limitations on its powers. The expiration of the two limitations on Article V was authorized directly by the language of Article V, and indirectly by the power that made the federal constitution. The latter point is not trivial. The sunset clauses were written into the original constitution, not added by amendment. Hence only through direct authority in the AC do the expirations represent self-amendment; through their indirect or ultimate authority, they represent irreflexive amendment of the AC. Because the sunset clauses were written into the original constitution, they share the status of the AC itself as original, official rules of change applicable to constitutional rules. They have only one subject apiece, unlike the AC. Unlike most sunset clauses, which merely declare the expiration date of some rule of law, the two in the federal AC served a second, equally important function during the period before their expiration: they entrenched constitutional rules against amendment. Also unlike most sunset clauses, they are not part of the rules they govern, and therefore may operate as intended without paradoxical self-repeal. Because the federal sunset clauses are rules of change independent of the AC, the appearance of self-amendment in their application to the AC may be reinterpreted as one step of an irreflexive see-saw method. The federal sunset clauses have another important difference from most: instead of dictating the repeal of a rule at the expiration date, they dictate the change of status of rules from entrenched to disentrenched. Once disentrenched, the rules are still valid; they are merely rendered liable to amendment. This distinction may be blurred if change of status is considered a repeal of the rule defining the difference of status. But the distinction, even if provisional, highlights the flexibility of sunset clauses. They may doom experimental regulations, ensure that a privilege is temporary, protect a rule for a time without repealing it at the end of the protected period, or conversely leave a rule subject to amendment for a time after which it automatically becomes entrenched, perhaps for another finite time. Sunset clauses may therefore contain "sunrise" clauses, and require change of a status more than once, or the change of a status and back again, before finishing their jobs. They could require an oscillation of status without end. But most interestingly, they may dictate changes, including the repeal, of the very provisions in which they lie, thereby repealing or suspending, reviving, or amending themselves. A clause that required the complete repeal of the statute of which it was a part, and then its complete revival one year later, presents a paradox of continuing validity (the further paradox of) self-repeal. If some kind of continuing validity is possible between periods of self-governed repeal, then an indefinitely long and complex series of changes could be "programmed" into a statute or constitution, some requiring the temporary, but absolute, suspension of the most fundamental premises of law, or of law itself. One thinks of the annual Roman festival on which all law was, by popular understanding, suspended for three days. If a rule of law defined this aspect of the festival, then either it was suspended during the festival like all other law, and there was no law to summon law back again, or it was the exceptional law that was not suspended. In the former case, the resumption of law would be revolutionary; in the latter case the festival would merely be a regulated party, a much less interesting affair. The equivalent on a computer would be a program that alternately turned the entire machine on and off and on again, without, like remote control televisions, leaving the machine partially on at every moment. Truly, law can transcend "mechanical jurisprudence"! Nothing like this has yet been programmed into an actual constitution. But the Alabama constitution of 1901 was interpreted by the Alabama Supreme Court to have invested its AC with the power to "suspend" parts of the constitution and "to take [a] feature out of the constitution during [a] period and to put it back at the end of the period". Downs v. City of Birmingham, 240 Ala. 177, 198 So. 231 (1940). The most comprehensive sort of reflexive sunset clause might be a clause of the New Jersey constitution of 1776 (discussed in Section 9 above) which conditionally nullified the entire constitution of which it was a part, if and when the colonies reconciled with England. Can we imagine an even more comprehensive clause —one that conditionally nullified all law in a given legal system if a certain condition came to pass? The constitutionality of the sunset clauses in the federal AC was never questioned, although the proponents of slavery concocted many other ingenious theories to forestall abolition. Nevertheless, the Supreme Court of Missouri has found a constitutional defect in the device of amendment by sunset clause. In 1910 a group of Missouri citizens submitted a proposed constitutional amendment to the Secretary of State for his ultimate submission to the voters at the general election of 1910. They were using a method of amendment by popular initiative (which had earlier been added by self-amendment). Their proposed amendment was a new map of state senatorial districts. It contained a sunset clause directing that the map expire when replaced by a revised map using the 1920 census. The Secretary of State refused to submit the proposal to the voters. In 100