Paradox of Self-Amendment by Peter Suber The second is also impossible under the inference model, but for different reasons. If complete entrenchment and self-entrenchment clauses mean anything, they prohibit amendment until they are themselves amended or repealed. If they could be repealed simultaneously with the repeal of the rules they protect, then they would have been no barrier whatsoever to amendment. Even without the exotic logic of self-application, most courts would indulge the presumption that the words in a constitution were not surplusage. The inference model is not committed to preserving the effectiveness of entrenching language as a barrier to amendment, but it is committed to taking rules of change seriously as premises of logical inferences. An explicit entrenchment clause, for the inference model, therefore creates a condition precedent to amendment, namely, the repeal of the entrenchment clause. An AC that could undo its self-entrenching language and amend itself in the same act would be performing the logically prior and the logically posterior simultaneously. This is equivalent to the prisoner opening the outer door simultaneously with the inner door, which is as paradoxical as opening the outer door first. The inference model, then, requires that disentrenchment and self-amendment of the protected rule take place in two steps, not one. The rub is that it cannot allow the step that must come first to occur unless the second has already occurred. If we put the inference model to one side, then there seems to be no reason why the entrenching language and the rule it protects could not both be repealed in the same act. Douglas Linder rightly notes that "[o]nly a hide-bound formalist would contend that the difference [between one and two amendments] is significant."[Note 15] Linder's view that the right one amendment could do the work of any two is based on the possibility that Congress may intend to repeal both the entrenchment clause and the rule it protects at the same time. That is one non-formalist path out of the problem, but unfortunately Congress is only one of at least 39 legislatures (today) whose intentions would be relevant to one who put stock in the intentions of the law-makers who adopt constitutional amendments. Moreover, intent cannot suffice, for the intent of the framers and adopters of the entrenchment clause was that it should not be repealed, or at least not so easily that it never protected the entrenched rule. Hence, unless the old intent gives way before the new, an irresistible force meets an immovable object —intent v. intent— and the paradox of omnipotence is replicated at the level of the intent of the law-makers.[Note 16] One type of self-entrenchment of the AC can always be disentrenched by a single amendment; even the inference model would allow it, if it allowed any self-amendment. That is the case of a procedural limitation on the amending process, for example, a limitation on the number of amendments that could be submitted for ratification at the same time. Such limitations are self-entrenchment clauses because (or when) they apply to all amendments and therefore to their own amendment. They are incomplete because they do not forbid all amendment, but only create a hurdle in the path of amendment; yet they specify the same hurdle for "ordinary" amendments and to that extent may not seem "entrenching" at all. Probably the most discussed such limitation, and most discussed self-disentrenching self-amendment that relaxed it, was Illinois' "Gateway Amendment" of 1950.[Note 17] The amendment raised the limit on the number of amendments that could be considered at one time from one to three. It was called the "Gateway Amendment" because it opened up the amending process. Obviously, if self-amendment is permissible, then one amendment suffices to repeal this type of entrenchment clause. But note that there is no distinction here between the entrenchment clause and the rule that it protects. Only clauses that forbid certain amendments by content create a difference between entrenchment clause and entrenched rule that might lead a formalist to demand two amendments to repeal both. Only the latter type of clause could construe its own repeal as a violation, and thereby purport to establish its own immutability, or its mutability only on the condition of being repealed before it is repealed. Clauses that forbid certain amendments without reference to content, but only to procedure, do not create the same paradox. Note that the inference model requires two amendments and prevents them from ever achieving their end. The entrenching language must be repealed before the entrenched rule can be repealed, but the entrenching language can never be repealed under the inference model. All attempts are violations, not repeals, because the self-entrenching language forbids its own amendment as well. The inference model requires two amendments in the sense that a prisoner must open two doors before escaping, and they cannot be opened simultaneously; but if the outer door must be opened first, then neither can be opened —by the prisoner— at all. This dilemma pinches a self-entrenched AC even harder, for it is imprisoned within the double doors. But any self-entrenched entrenchment clause creates the double door prison for some rule, and an AC outside the "prison" cannot free it under the inference model because the repeal of the outer protective clause is always a violation. Finally, note that it does no good under the inference model to suppose that a self-entrenchment clause could be self-disentrenched because its self-reference has rendered it meaningless and ineffective. If the AC is the self-entrenched rule, then disentrenchment must take the form of self- amendment, which equally involves self-reference. Still, if the barrier is a mirage, then the escape may be a fantasy. If the AC is not the self- entrenched rule, and if the self-entrenchment clause were meaningless, then of course it constitutes no barrier to the amendment of the "entrenched" rules. But the use of self-reference in law cannot be considered to create meaninglessness if self-referential rules and procedures are accepted by officials and citizens (logicians excepted, perhaps) as having meaning. The technical —and contestable— theories of meaning published in philosophy and logic journals have never been, and need not be, the standards used in law. The legal standards are equally technical and contestable, but the point is that they are autonomous and self-sufficient. Just as courts decide insanity on legal grounds, using medical and psychiatric testimony in an advisory capacity only, courts can decide meaningfulness on legal grounds and will take the testimony of logicians "for what it is worth". When the AC is not entrenched reflexively, completely, or concentrically, then the cases are easier to analyze. Incomplete self-entrenchment, whether mediate or immediate, could always be undone if the proper, difficult procedure were used, and if self-application is allowed. For example, the only limitation on Article V that is still valid is an incomplete, irreflexive entrenchment clause: that "no state, without its consent, shall 63