Paradox of Self-Amendment by Peter Suber Any immutable rule would be a limitation on the power of the AC, or at least a prima facie limitation until we determined which had to give way, the immutability of the rule or the omnipotence of the AC. One rule that appears to be immutable is the rule that what the constitution says is law, is law.[Note 59] In Hart's terms, that rule is a rule of recognition. It may be changed if acceptance shifts and authorizes a different rule of recognition, such as a rule declaring that only the utterances of a dictator will be considered law. But can the supreme rule of change, the AC of the constitution, change the rule that what the constitution says is law is law? Any amendment that purported to repeal that rule would rely on its validity and thereby fail to repeal it —unless it effectively declared its own validity independently of the rule. An amendment that purported to modify, without repealing, the rule might have better success. The rule could apparently be changed to read, "what the constitution says is law is law and what treaties say is law is law on a par with the constitution" (amendment by addition), or "what the constitution says is law is law except for what it says about the powers of constitutional conventions, which is not binding on such conventions so long as they are lawfully convened under their own rules" (amendment by exception or subtraction). Amendments to the rule that simply reversed the proposition, and declared that what the constitution said is law is henceforth not law, would not only be unlikely in fact, but even if passed they would not comprise limitations on the AC. An AC cannot make a donkey into a horse, but it may be unlimited in power as an AC, that is, as a rule of change for constitutional rules. If we realize that even an omnipotent AC can only make constitutional rules, we see that it is not limited by its inability to make anything else, such as constitutional rules that were not laws. Similarly, in the theological version of the paradox, James Cargile has argued that the omnipotence of a god is not limited by its inability to make something not made by a god.[Note 60] Let us now shift from the new theories of "natural law" that make legal validity depend on logic to the older theories that made it depend on morality. One of the most fundamental of the alleged limitations on an AC is an implied prohibition, implied by due process or principles of fairness, against retroactively abrogating vested rights by a change of law. The states agree that no one has a vested right in the law as it is that might preclude its amendment or repeal, that any reliance on existing law may be upset by proper use of the procedures of legal change, and that states make no implied promise to protect their citizens from incidental injury caused by changes in the law. See e.g. Tom & Jerry, Inc. v. Nebraska Liquor Commission, 183 Neb. 410, 160 N.W.2d 232 (1968), Cirelli v. Ohio Cas. Ins. Co., 133 N.J.Super. 492, 337 A.2d 405 (1975). But often the cases limit the states' discretion to change law by a standard of reasonableness, or a duty to avoid arbitrariness and comply with due process. Id. Some cases are more specific in prohibiting unreasonable impairments of contracts by statute or constitutional amendment. City of New York v. Town of Colchester, N.Y.S.2d 156, 66 Misc.2d 83 (1971). And most agree that a retroactive abrogation of vested rights cannot be effected by statute, Rosenberg v. Town of North Bergen, 61 N.J. 190, 213 A.2d 662 (1972), or in some places even by constitutional amendment, Permann v. Knife River Coal Min. Co., 180 N.W.2d 146 (N.Dakota, 1970). Is the amending power limited by justice, fairness, or equity? Here we reach a fundamental question of legality. An old Virginia statute set out a right of free exercise of religion, and then added: And though we well know, that this assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding generations, constituted with powers equal to our own, and that, therefore, to declare this act irrevocable, would be of no effect of law, yet we are free to declare, that the rights hereby asserted, are of the natural rights of mankind, and that if any act shall be hereafter passed, to repeal the present, or to narrow its operation, such act will be an infringement of natural right. See Currie's Administrators v. the Mutual Assurance Society, 4 Hen. & M. (14 Va.) 315 (1809). This statute recognizes the continuing omnipotence of the legislature, much like a British parliament. It recognizes that one assembly cannot bind its successors irrevocably, and yet tries to protect its assertion of fundamental rights from amendment or repeal. While it denies the existence of any legal duty on future generations to let the statute stand, it imposes a moral duty to let it stand. While repeal may be lawful, it will violate the fundamental rights outlined in the statute itself. The legislature, reaching the limit of its power, placed a curse on its posterity in place of an injunction. Can natural rights, insofar as they are expressed in positive law, lawfully be repealed? Is an act that repeals positive law but violates natural rights thereby a violation of positive law? Might it be within the powers of a legislature or amending body and still be a wrong, such as a tort? If the statute adds something to the common law, then repeal seems permissible and effective. If the statute simply restates the common law or customary morality, which was the medieval view of statutes, then perhaps a repeal will be either impermissible, as a violation, or ineffective, leaving intact the unreachable moral environment. Ronald Dworkin has argued convincingly that principles may legally supersede and qualify legal rules, and therefore that the line between legal and alegal standards cannot be fixed as rigidly as legal positivists would like.[Note 61] If justice limits the amending power, then it seems that an unjust constitution erected by revolution could never be ratified by acceptance or acquiescence, even if other revolutionary constitutions could be so validated.[Note 62] I made a similar argument in Section 2. If government is legitimate only by virtue of the consent of the governed, and if the people's use and contentment not to use the AC is a measure of their consent to be governed by the constitution, then the difficulty and fairness of the amending process must be taken into account. A procedure could be so difficult or unfair that the legitimacy of the constitution would be diminished. Similarly, acceptance could be indefinitely withheld from an unjust amendment or constitution. That would deprive them of legal validity under the acceptance theory, something different from legitimacy under the consent theory.[Note 63] 53