Paradox of Self-Amendment by Peter Suber Section 1 of the AC said, inter alia, that "any amendment...to this constitution may be proposed...at any regular session" of the legislature. In 1964 AC §1 was used to amend a provision on legislative power (Article 4, §5.B), limiting the types of action which the legislature could consider in even- numbered years to a short list that did not include constitutional amendments. The amendment impliedly amended AC §1 by reducing the years in which constitutional amendments could be considered from all years to odd-numbered years. This effect on AC §1 was confirmed by Attorney General Opinion No. 65-212 (1965). Therefore, AC §1 was amended without a convention despite its incomplete, irreflexive entrenchment by AC §5. Unlike the Australian and South African attempts to circumvent incomplete entrenchment (see Section 8.B, above), this one succeeded, perhaps because the protected rule was only impliedly, not directly, amended. This would not be a tidy legal justification, but it might mean that few people noticed or cared. Moreover, this implied amendment was an implied self-amendment, since AC §1 was used to amend the legislative article with the side effect of impliedly amending AC §1. Moreover, because the amended AC §1 now says that constitutional amendments may be considered by the legislature only in odd-numbered years, it has become incompletely, mediately self-entrenched. Moreover, the entrenchment clause that was initially violated (AC §5) must be considered still valid, not repealed pro tanto, for the people of New Mexico have tried —and failed— to repeal it in 1965, 1970, and 1971. These attempted repeals, furthermore, have not been by convention. If a certain electoral return would signal a successful repeal (which is undetermined), then the irreflexive entrenchment of AC §1 by AC §5 should not be taken to imply the self-entrenchment of AC §5. That an ordinary amendment could repeal the entrenchment clause was held by Attorney General Opinion No. 70-13 (1970). Moreover, the new rule to consider amendments only in odd-numbered years has frequently been violated, eight times in 1970 alone. It may be considered no rule at all, either because the implied self-amendment is really invalid, or because the implied self-amendment is ineffective and rapidly losing to desuetude. The Attorney General Opinion that declared that AC §1 had impliedly amended itself ignored the fact that AC §1 was entrenched by AC §5. Attorney General Opinion No. 65-212 (1965). In this sense, then, the Attorney General was answering a self-amendment question, not a self- disentrenchment question. The narrow ruling was that resolutions and constitutional amendments could be considered by the legislature only in odd-numbered years. This Attorney General was Boston E. Witt, and when he was replaced a few years later by James A. Maloney the validity of the implied self-amendment and self-disentrenchment was again brought to the Attorney General's office. Maloney was asked to reconsider Witt's opinion, and was specifically asked to address the self-disentrenchment question. Maloney upheld Witt's narrow ruling but on new grounds that must be sketched briefly. Prior to 1964 the New Mexican legislature met only in odd- numbered years. When the constitution was amended to provide for annual sessions, the subjects that could be considered in even-numbered years were simultaneously limited, and did not include constitutional amendments. The language of AC §1 that was apparently amended by implication said that amendments could be considered in any "regular" session. Witt took this to designate the new annual sessions, and therefore held that AC §1 had been amended. Maloney read "regular" in AC §1 in its pre-1964 sense as odd-numbered sessions only. He argued that the framers intended to define "regular session" in the AC by reference to the legislative article, which at that time provided only for regular sessions in odd-numbered years. Maloney ignored the amendment of the legislative article on this very point, or more precisely, he held the amendment irrelevant to the meaning of "regular" in the AC. Hence, AC §1 was not amended at all, and had always allowed amendment proposals only in odd- numbered years. Maloney did not indicate whether this ruling implied retroactive invalidity for any ratified amendments. In sum, then, Maloney affirmed Witt's narrow ruling, but denied that self-amendment had occurred, let alone self-disentrenchment. Attorney General Opinion No. 69-105 (1969). In 1970 Maloney was asked whether the incomplete, irreflexive entrenchment clause in AC §5 could be repealed. He ruled that it could be, and that it could be repealed without a constitutional convention, even under AC §1. Attorney General Opinion No. 70-13 (1970). This is the closest thing in American legal history to authoritative recognition of permissible self-disentrenchment. New Mexico's AC §5 incompletely entrenched AC §1, but §1 was declared capable of repealing §5 without using the special procedures required by §5 (constitutional convention) —a procedure not contained in §1 anyway. The section describing the power to amend was §2. Maloney, however, did not in his opinion visualize the problem as one of paradoxical self-disentrenchment, but as a problem unique to New Mexican history. If AC §5 was required by the federal government as a precondition of statehood, then would repeal of §5 jeopardize New Mexico's status as a state? Maloney decided that AC §5 was not actually required by the federal government; instead, Congress merely wanted a vote on an amendment to the AC that would make the amending process less difficult. The self-amendment that Congress wanted to be put to a vote would have lowered the majority needed for ratification from two-thirds to a simple majority. The entrenchment clause was already in the pre-statehood constitution, but Congress included it in the AC-package. Maloney is opposed on this question by Helene Simpson,[Note 9] who has documented her opinion that an amended AC, not merely a vote, was required by Congress as a precondition of admission to the Union.[Note 10] However, even Simpson agrees that Congress did not require AC §5 as a precondition.[Note 11] Maloney and Simpson both note that Arizona was also required to amend its constitution, although not its AC, prior to admission, and that upon admission repealed the required amendment without losing its statehood or running afoul of the courts.[Note 12] 61