Paradox of Self-Amendment by Peter Suber express part of the constitution not only solidifies it, but also subjects it to amendment. The last clause of the proposal attempts to protect the right from amendment by entrenchment, but does so badly. It merely immunizes it from "the direction" —whatever that is— in Article V, which in any case may be replaced by self-amendment. Further, entrenchment clauses are liable to amendment, even if they are self-entrenched (see Sections 8, 9). Finally, the intent of the proposal is obviously to carve out an indefeasible right, but without heed to the paradox of self-amendment: even under their reserved power, may the people amend their indefeasible right to amend? In January of 1869, Senator Davis of Kentucky proposed to allow ratification by popular referendum, not only for future amendments but also for his very amendment proposal. This raises the bootstrapping problem of #4 above, but cleared of the distractions of entrenchment and slavery (see also #10 below). Article V does not permit ratification by popular referendum; this is clear from Article V, confirmed in part by Hawke v. Smith, 253 U.S. 221, 10 A.L.R. 1504 (1920), and presupposed by Davis' own proposal. Insofar as Article V is exclusive (see Section 12.A), a popular vote simply could not ratify the Davis amendment —just as whites had to vote to give blacks the right to vote in the Fifteenth Amendment, and men had to vote to give women the right to vote in the Nineteenth Amendment. However, if Davis' proposal had been endorsed by the requisite popular vote, but never ratified under the procedures of Article V, and if it were treated as if it were validly ratified by the people and officials, then we would need something like an acceptance theory to explain its legality. In 1869 Senator Morton of Indiana proposed to include in Article V certain minimal procedures to be used by state legislatures when ratifying federal amendments. His proposal was prompted by an embarrassing series of procedural irregularities that plagued the Indiana legislature in its "deliberations" on the Fifteenth Amendment (Black Suffrage). In the state senate, for example, the democrats —who opposed ratification— tried to break quorum by leaving the chamber. The republican leadership locked them in before they could escape. In the house, all but 10 democratic representatives abruptly resigned, again to break quorum. The speaker ruled that the house was still competent to act, and obtained a 2/3 vote in favor of ratification from the "members present". In the same session of Congress, a proposal similar to Senator Morton's was introduced in the House by Representative Shanks, also of Indiana. In January of 1872, Representative Porter of Virginia proposed to allow ratification of amendments by simple majority in a popular referendum. His proposal avoided the bootstrapping problems of ##4 and 7 above by requesting ratification through the methods of Article V, not through a popular referendum. D. The Articles of Confederation Although the AC of the present constitution has never been directly amended, one might argue that it is itself an amended form of the AC of the Articles of Confederation (hereafter, the "Articles"). If the present constitution was written under the authority of the Articles (which is controversial) and if the present AC differs from the old one (which is certain), then the latter authorized its own change, indirectly by convention rather than directly by amendment. The AC of the Articles is contained in the first paragraph of Article XIII: [N]or shall any alteration at any time hereafter be made in any of them [the Articles]; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State. This clause differs from the present one in two significant respects: (1) it does not expressly allow amendment by convention, and (2) it requires unanimous concurrence by the states, not merely a three-fourths majority. The requirement that Congress assent to amendments remains in the new AC, although in the new AC Congressional assent must take the form of two-thirds of each house. More importantly, the condition of Congressional assent is missing from the new constitution's ratification clause (Article VII) under which the new constitution was adopted. Ever since 1789 scholars have debated whether the new constitution was a product of the authority of the Articles or a revolutionary break with it. It could be a product of the Articles if it could be construed as a product of the Articles' AC, for the Articles provided no other means for their own replacement. The convention of 1787 was called by Congress to suggest amendments. This by itself did not violate the Articles, for the convention's power was limited to the proposal of amendments and did not include their ratification. In its call for the convention, Congress declared that it intended to comply with the AC of the Articles. The language of Congress suggested that it wished for amendments to the Articles rather than an entirely new constitution. The resolution in pertinent part read:[Note 7] Whereas there is provision, in the Articles of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the Legislatures of the several states; and whereas experience hath evinced that there are defects in the present Confederation; as a mean to remedy which, several of the States, and particularly the state of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these states a firm national government,— 174