Paradox of Self-Amendment by Peter Suber Notes 1. An earlier version of Nomic and the commentary that follows was published in Douglas R. Hofstadter's column, "Metamagical Themas," in Scientific American, 246, 6 (June 1982) 16-28 ("About Nomic: A Heroic Game That Explores the Reflexivity of the Law"), reprinted slightly revised in his collection of columns, Metamagical Themas, Basic Books, 1985. 2. Note the practice of Canada in this regard. The Canadian Bill of Rights, Stat. Can. 1960, Ch. 44, is not part of its constitution, but a mere statute. Hence the important values protected by the Bill of Rights would be vulnerable to amendment pro tanto by every statute subsequently enacted in the slightest way inconsistent with it, unless special measures were taken to create a hierarchy among statutes. Section 2 of the Bill of Rights itself creates such a hierarchy: Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared.... In Regina v. Drybones, 9 D.L.R. (3d) 473 (1970) the Canadian Supreme Court gave effect to the intent of this language and allowed the Bill of Rights statute by this means to raise itself above other statutes. See W. Friedmann, Law in a Changing Society, Columbia University Press, 1959, p. 59. 3. Dworkin, Ronald, "The Model of Rules," University of Chicago Law Review, 35 (1967) 14-46. For Dworkin, principles are definitely not rules; I call them "rule-like" here simply to place them as members of this long list of "legal ingredients". 4. But of course all that results from compliance with the rules is in some other sense the game Nomic. The point is that the substance of the game may change radically. Similarly, many have acknowledged that even an AC restricted to piecemeal amendment could, through repeated applications, create a fundamentally new constitution; see e.g. Lester Bernhardt Orfield, The Amending of the Federal Constitution, University of Michigan Press, 1942, at pp. 12, 44. 5. For the opposite view, see Alexander Hamilton in Federalist #85: "[I]t will be far more easy to obtain subsequent than previous amendments to the constitution." Clinton Rossiter (ed.), The Federalist Papers, New American Library, 1961, at p. 524. Hamilton offers three arguments. The first is that adopting a new constitution requires unanimity, whereas adopting subsequent amendments requires only some supermajority. This argument became inapplicable in our constitutional history when the unanimity requirement in the Articles of Confederation was superseded by the 9/13 requirement in Article VII of the new constitution. (See Appendix 1.D.) It is also inapplicable to Nomic, which requires unanimity for amendments, initially, matching the unanimity one presumes will be necessary to get players to play a game. My rationale for requiring unanimous votes for amendment, initially, is to create a kind of social contract in which no player can be overruled until she consents to take the risk by switching to majority rule or some other system. Hamilton's second argument is that every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise in relation to any other point —no giving nor taking. Ibid. at 525. His third argument (ibid. at 526) is that first trials in constitution writing are inevitably defective; time and experience are needed to perfect them. His second and third arguments apply as well to Nomic as to constitutions. It is worth considering Hamilton's arguments in detail, for once players learn the Platonic form of Nomic, there is no reason whatsoever why they should use my initial set of rules unless they, as sovereign citizens and players, find them satisfactory or cannot agree on anything better. 194