Paradox of Self-Amendment by Peter Suber Section 8 between complete and incomplete entrenchment, between original and self-imposed entrenchment, and between limitations on amendment by protection (or as contradiction) and limitations by incompetency (or as ultra vires). Each of these distinctions applies within irreflexive entrenchment as well as within self-entrenchment. "Disentrenchment" is the repeal of an entrenchment clause, and "self- disentrenchment" is the repeal of an entrenching clause on a rule of change by that very rule of change. If a clause said that the AC could not be amended at all, then the AC could repeal that clause only by self-disentrenchment. Complex variations and combinations of entrenching language are not to be expected in actual constitutions, for most drafters are not genuinely worried that their ACs (unlike many substantive provisions) will be amended in haste or carelessness, and most are concerned that the constitution ring with solemnity and elegance, not perplex like a brain-teaser. Another reason is certainly that a sovereign people will not ordinarily want to limit its power to make law, although often the founding generation does want to limit the power of future generations. One may hazard the generalization that entrenchment clauses are less likely to appear in constitutions written and adopted by the people governed by them than in constitutions written and imposed by a foreign or imperial power.[Note 5] Among the American states the most common type of entrenchment clause ambiguously proscribes "violation" of large sections of the constitution (more on the latter in Section 18). These clauses usually entrench either the whole constitution, the Bill of Rights, or the AC-like right to alter or abolish government. The Delaware constitution of 1776, for example, contains such a clause in its AC. One can only conjecture that the prohibition of "violation" was meant to include the prohibition of amendment as well, for it is superfluous for a constitution to prohibit its violation literally,[Note 6] and it is suspect to prohibit violation of only some sections. This is supported by the Oxford English Dictionary, which lists as 18th century meanings for "to violate": to defile, despoil, treat with violence, disturb, and break in upon. The North Carolina constitution of 1776, similarly, quasi-entrenches its Bill of Rights with the phrase, "ought never to be violated on any pretense whatsoever." Arkansas in its 1836 constitution, and Tennessee and Pennsylvania in their present constitutions, take a step toward explicitness by entrenching their Bills of Rights with the declaration that those Articles are "excepted out of the General Powers of government, and shall forever remain inviolate."[Note 7] The word "inviolate" in this context suggests "pristine and unamended" more than "not transgressed". The Arkansas clause was held effective as an incomplete entrenchment clause in 1851. The Declaration of Rights entrenched by the clause included a provision prohibiting criminal penalties except for offenses charged by indictment or presentment. An 1846 amendment that would have given justices of the peace jurisdiction over assault and battery cases was held to violate the indictment rule and its entrenchment clause. The court held that only a constitutional convention could amend the Declaration of Rights. Eason v. State, 11 Ark. 481 (1851).[Note 8] The court found the "inviolate" language not only an effective entrenchment clause, but also an impliedly incomplete entrenchment clause that permitted amendments by convention. However, the neat "entrenchment" reading of Eason is complicated by the fact that the court also relied on the rationale that the Declaration of Rights is inherently beyond the ordinary (non-conventional) amending power. But Arkansas, Tennessee, and Pennsylvania do not say anything nearly as explicit as the present and only (1911) constitution of New Mexico, in which one section of the AC says of another that it "shall not be changed, altered or abrogated in any manner except through a general convention called to revise this constitution as herein provided." As we will see, this entrenchment clause was violated, if not repealed sub silentio, with the approval of the state Attorney General. (See Section 9.B below.) Of the American states, only New Mexico has a clearly entrenched AC which has been self-disentrenched or held by courts to be capable of self- disentrenchment. No state has a self-entrenched or completely entrenched AC. In New Mexico there is legal authority for the proposition that self- disentrenchment of an AC is lawful, but the authority consists only of a few Attorney General opinions that are contradicted by other Attorney General opinions. This is tenuous evidence of legality, and it is a small sample. Self-amendment per se is undoubtedly lawful in America because it has occurred in 47 states without challenge e.g. for self-contradiction, paradox, violating its authority or principles of natural law (see Appendix 2). But one might say that New Mexico was "wrong" to uphold the permissibility of self-disentrenching self-amendments, in a way in which 47 states cannot be wrong. After all, there is reason to believe that New Mexico's disentrenching self-amendment did violate the state constitution. But in one sense that is just the point. Despite the paradox and the contradiction, these acts are accepted as legal by the tests of legality —in New Mexico. In this Section I will be more concerned with the logical than the legal objections, although I do note the small sample and the dubieties of the New Mexican case. B. Reflexivity tangles in New Mexico If the paradox of self-amendment were never raised by Alf Ross, it would be raised by the spectacle of the New Mexican AC. Its legal history is wonderfully complicated. The New Mexican AC contains five sections, the first of which contains a complete description of the non-convention method of amendment. Section 5 explicitly entrenches §1 against all amendment except amendment by convention. This is a clear-cut case of incomplete, irreflexive entrenchment within an AC. But this entrenching language was violated in a fascinating way. The entrenched rule was impliedly self-amended by an explicit amendment to another section of the constitution, with the effect that the amended version of AC §1 is incompletely, mediately self-entrenched. Here's how. 60