Paradox of Self-Amendment by Peter Suber to include the in terrorem clause, would otherwise be free to make her fraud self-insulating. Hence, beneficiaries may circumvent the clause if they proceed with good faith and probable cause to believe the will is invalid.[Note 23] This rule is a triumph of sound policy over abstract logic. The in terrorem clause would punish all failing attempts to challenge the will of which it is a part, and thereby deter many contests that should succeed; yet not all such contests are punished. The rule violates the testator's apparent intent in order to preserve the possibility of ascertaining her actual intent. It is designed to avoid a vicious circle, or fraudulent self-concealment. Mechanical compliance with rules normally binding is suspended in the name of a sound policy to avoid an unjust result, which is how equity usually works and how the formalist inference model could never work. Something very basic about legal systems, as distinct from logical systems, is manifest here. Though both are superficially systems of rules, every practicing lawyer can think of dozens of cases in which policy was —wisely or unwisely— put ahead of literalistic compliance with clear rules. Even if they cannot envision the strange circumstances that would make formalist compliance with a given rule unjust or perverse, working lawyers acknowledge from long experience with strangeness that every rule has its nether world of application where exceptions will be recognized, or where finesse, art, judgment, and unabashed consideration of policy are needed. In logic it is difficult to make all rules explicit and to state all the principles that are taken for granted, but it is possible. In law it is impossible (see Section 5.C), and even when principles are articulated, they may require setting a few normally binding rules aside for the given case and looking at the outcome as a value-laden phenomenon, not merely as a product of rules. In law, policies and principles regularly suspend rules, and not because law is hopelessly unsystematic, undecided, or illogical, and not because there is always a rule commanding the suspension, but because it is law, not formal logic. If a state put an in terrorem clause into its AC, self-entrenching the AC and penalizing any legislator who would propose to amend it, regardless whether the proposal passed, then courts would almost certainly put policy ahead of mechanical compliance (at least in the "right case"), and certainly could permissibly do so.[Note 24] The rule might evolve in much the same way as it did for wills, until an implied exception was recognized for good faith proposals of amendment that arose from a reasonable belief in the deficiency of the present AC, perhaps as evidenced by the widespread public support that resulted in ratification. In the right cases, the exception could also rest on a theory that the framers' intent could be better served by allowing an adjustment in the letter of their law in order to reach the spirit. If the in terrorem clause applied to the whole constitution, and not just to the AC, then the docile compliance of courts is even less likely. As Lester Orfield said in another context, "[t]he courts should be slow to adopt a construction which would permit a new constitution [and a fortiori a mere amendment] only by revolution."[Note 25] Because an in terrorem clause is just a self-entrenchment clause that forbids both attempted and consummated amendment, it may be repealed on the same terms as other self-entrenchment clauses. A judge would have even firmer grounds to enjoin the first stirrings of a repeal amendment, but need not do so and may be authorized de facto in restraining herself by the acceptance of the people and officials. In 1939, when Henry Rottschaefer's Handbook of American Constitutional Law appeared, New Mexico had not amended its constitution in violation of an entrenchment clause, nor had it yet discussed the repeal of the entrenchment clause. Hence, Rottschaefer was not at all sure that either could be done, but in this passage he shows the sort of policy considerations that would come into play.[Note 26] There has been found no case in which the power to amend has been employed to directly or indirectly modify a constitutional provision expressly excepted from that power. The issues that such an attempt could raise could not be settled by any reasoning derived from logical processes from prevailing conceptions of sovereignty, and those based on considerations of convenience and expediency point to the solution that such attempts to limit the power of amendment should be held futile. The necessities of orderly government do not require that one generation should be permitted to permanently fetter all future generations. Rottschaefer was also unaware of the Eason case (1851) discussed above (Section 9.A), which fits the description.[Note 27] Note that if we simply "held futile" all attempts to limit the power of amendment, we would not actually solve the problem. We would make the AC omnipotent, but in which sense? Would it be powerful enough to limit itself irrevocably? If so, we are back to a limited amending power. But if not, then it is not powerful enough to limit itself, and lives from birth under an irrevocable limitation. The paradox of self-amendment is a paradox because it identifies a contradiction whose obvious alternatives are also contradictions. It is important that most entrenchment and self-entrenchment clauses limit the content of amendments. Either they protect actual rules, and thereby forbid amendments with a content that would amend or repeal them, or they describe the prohibited content, such as any amendment that would deprive a state of its equal suffrage in the Senate without its consent (although the latter could also be said to protect the rule in Article I, §3.1). Rules within an AC itself are mostly rules of procedure. If one rule says that all amendments must receive affirmative votes from three- fourths of those voting in a popular referendum, then in a sense it is incompletely self-entrenched, for it can only be amended by using the procedure it specifies. However, because that procedure is not more difficult than the procedure for ordinary amendments, it probably should not be called "entrenchment" at all, even if the proposed amendment would lower the supermajority needed for ratification. But note that if such rules could be called self-entrenched in a broader sense, then all law is self-entrenched in that sense. All law is a hurdle to its own amendment or repeal insofar as it must be heeded until changed. The people do not rule themselves directly, but only by means of rules that are somewhat difficult to change. Once legislative will reaches a certain level of intensity or extent, it can make a law, and if that will later subsides, the law stays behind as its relic. Strict positivists and formalists, like Alf Ross, would insist that statutes and constitutional rules persist in validity forever until amended or repealed by a properly channeled act of legislative will. The acceptance theory can more comfortably accommodate a 66