Paradox of Self-Amendment by Peter Suber rare of example of the latter, see the Canadian Bill of Rights, discussed in Appendix 3, note 2. Other examples will occur whenever a statute has a provision prefaced by words such as "notwithstanding any other paragraph of this section", or "nothing in this section shall be construed to deny...." If other parts of the statute are later amended, the older "notwithstanding" clause will presumably still control. However, this may be due less to the self-elevating character of the clause than to the legislative intent revealed by the self-elevating language. When a constitutional rule stipulates its own immunity to future amendment, or its own priority over future amendments, it is self-entrenched. For the effect of self-entrenchment on the paradox of self-amendment, see Sections 8, 9. For the view that entrenchment is the temporally symmetrical correlate of the lex posterior principle, see Section 9.D. 2. See the previous note and Sections 8 and 9 above. 3. The relation between the lex posterior and the lex superior principles is well laid out by Alexander Hamilton in Federalist #78. 4. For example, Carman v. Hare, 26 Mich.App. 403, 182 N.W. 2d 563 (1970), vacated 384 Mich. 443, 185 N.W.2d 1. Carman held that an amendment is presumed to be intended to amend only those provisions of the text that it explicitly cites. The court is here applying a requirement of "germaneness" as a condition of amendment, found in the constitutional law of many states. Its effect is to make amendment by implication either impossible or a question of intent. 5. A good example of the latter is Lester Bernhardt Orfield, Amending the Federal Constitution, University of Michigan Press, 1942, at p. 12: [A]n amendment is of even greater import than the original provisions of the constitution since it automatically repeals all clauses inconsistent with it. Orfield cites the following authorities for his proposition: Johnson v. Tompkins (C.C.Pa. 1883), Baldwin Fed.Case No.7416; Osborne v. Nicholson (C.C.Ark. 1870) I Dill. 219, Fed.Case No. 10595; University v. McIver, 72 N.C. 76 (1875); and Grant v. Hardage, 106 Ark. 506, 153 S.W. 826 (1913). 6. I presume that no provision is exempt from explicit repeal, except possibly (1) self-entrenched provisions, for which see Sections 8 and 9, and (2) the AC itself, for which see Part One. 7. For example, Prout v. Starr, 188 U.S. 537, 543 (1903) (the Eleventh Amendment does not bar inquiry into violations of the Fourteenth Amendment even when the inquiry takes the form of a suit against a state Attorney General): The Constitution of the United States, with the several amendments thereof, must be regarded as one instrument, all of whose provisions are to be deemed of equal validity. Prout relies on what I have called the homogeneity of the constitution, the theory that new amendments and conflicting preexisting sections coexist in the manner of inconsistent sections of the original text, none amending any other, and none hierarchically privileged because it is newer. For a recent case that might be interpreted to deny the homogeneity of the Eleventh and Fourteenth Amendments, see Fitzpatrick v. Bitzer, 427 U.S. 445 (1975). The Supreme Court allowed an award of attorney's fees pursuant to a statute adopted under Section 5 of the Fourteenth Amendment, a statute that otherwise would have been barred by the Eleventh Amendment. Hence Bitzer might be read for the radical proposition that even statutes adopted under newer amendments partake of the lex posterior principle and impliedly repeal or at least supersede inconsistent earlier constitutional amendments. This would extend the lex posterior principle in a way that overturned the lex superior principle. 8. Lester Orfield, op. cit. at p. 100. 9. The Tenth Amendment in its entirety reads: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 10. Selden Bacon, "How the Tenth Amendment Affected the Fifth Article of the Constitution," Virginia Law Review, 16 (1930) 771-79. 11. Henry W. Taft, "Amendment of the Federal Constitution: Is the Power Conferred by Article V Limited by the Tenth Amendment?" Virginia Law Review, 16 (1930) 647-58. 12. U.S. v. Sprague, 282 U.S. 716, 734 (1931). 13. Bacon op. cit. at p. 781 (emphases in original). 14. Ironically, the same principles and fears that motivated Bacon led to the proposed Reed-Walter amendment to Article V, which would (inter alia) have abolished the convention method of ratification. See James P. Murtagh, "Procedure for Amending the Constitution and the Reed-Walter Amendment," Pennsylvania Bar Association Quarterly, 27 (1955) 90-101. 15. Bacon, op. cit. at p. 782. 116