Paradox of Self-Amendment by Peter Suber Notes 1. Herbert Vandenberg Ames, The Proposed Amendments to the Constitution of the United States During the First Century of Its History, Washington, D.C.: Government Printing Office, 1897, at p. 185. 2. This proposal is discussed in Appendix 1.C.6. 3. New York: B.W. Huebsch, 1921. MacDonald's views are discussed in Appendix 1.E. 4. This language is the result of Rhode Island's hard experience with the legality of the Dorr Rebellion. See the entry under Rhode Island in Appendix 2. 5. On the attempt by Jefferson and others to find a legal justification for the revolution, see R.A. Humphreys, "Rule of Law and the American Revolution," Law Quarterly Review, 53 (1937) 80-98, and Edward Dumbauld, "The Sound Principles of the Revolution," Pennsylvania Bar Association Quarterly, 47 (1976) 554-66. Focusing specifically on Jefferson's language in the "right to alter or abolish" clause is Raymond E. Hayes, "Revolution as a Constitutional Right," Temple University Law Quarterly, 13(1938) 18-29, at pp. 19-20. 6. The current Tennessee constitution (1870) declares in the preamble that it was made in convention called by the legislature under the authority of the right to alter or abolish government found in the prior constitution (1834). The AC of the 1834 constitution did not explicitly provide for amendment by convention, although it permitted any number of amendments to be proposed and ratified at once. The preamble to the 1834 constitution, by contrast, names the AC of the prior constitution (1796) as its authority. See the entry on Tennessee in Appendix 2. 7. Some of the controversy in the background of this decision is recounted by Clifford C. Hubbard, "The Issue of Constitutional Amendment in Rhode Island," American Political Science Review, 30 (1936) 537-40, at pp. 539-40. 8. The following state constitutions contained no AC at all: Connecticut (1776), New Hampshire (1776), New Jersey (1776), New York (1777), North Carolina (1776), Ohio (1802) (?), Pennsylvania (1790) (?), South Carolina (1778, 1776), Virginia (1864, 1851, 1829, 1776), and a proposed but rejected Massachusetts constitution (1778). The law and scholarly opinion on the permissibility of amendment under such constitutions is well summarized in In Re Opinion to the Governor, 55 R.I. 56, 178 A. 433, 449-51 (1935). Note that the Connecticut "constitution" of 1776 and the two South Carolina "constitutions" of 1776 and 1778 were found by courts to be mere statutes. Hence they were amendable by all the rules of change valid for statutes, including other statutes. On amendment without express authority, see also Lester Bernhardt Orfield, The Amending of the Federal Constitution, University of Michigan Press, 1942, at pp. 39, 138, 157. 9. The Bourbon case did not arise because a party proposed to amend the constitution through the right to alter or abolish; hence, unfortunately, the case did not address the relation of the AC to the right to alter or abolish government. 10. Kelsen's view that revolution can be justified by positive international law is criticized by A.M. Honore, "Reflections on Revolutions," The Irish Jurist, n.s. 2 (1967) 268-78, at p. 272. Other positive law justifications, such as necessity, are considered by Honore at pp. 274-75, and by S.A. de Smith, "Constitutional Lawyers in Revolutionary Situations," Western Ontario Law Review, 7 (1968) 93-110, at p. 100. Both Honore and de Smith consider non-positivistic justifications as well; for more on these, see J.M. Eekelaar, "Principles of Revolutionary Legality," in A.W.B. Simpson (ed.), Oxford Essays in Jurisprudence, Second Series, Oxford University Press, 1973, pp. 22-43. 11. Nevertheless I have assumed throughout this essay that revolution is unlawful by definition, and that acts that exceed their authority or new regimes that are not authorized by their predecessor's AC or equivalent are revolutionary. I was led to this usage primarily for convenience, in order to have a word ("revolution") for amendments that violate the AC. But the question should not be thought closed by making these conventions of word usage explicit. Revolutionary acts may be thought illegal by definition at the time and place where they occurred, but they are frequently cured by retroactive legislation or acquiescence in the regimes they establish, and are cheered as lawful in other places. And of course many "revolutionary acts" are often arguably legal, some even unarguably legal, at the time and place where they occurred, and are interpreted as revolutionary only by custodians of law unwilling to respect provisions of law against their interest. These phenomena of legal history cannot be blinked away by dictionary definitions. 12. Those interested in this line of thought may wish to look at the first rule of the game Nomic, in Appendix 3 (enjoining players to obey the rules of the game), and then try to play a game in which that rule is amended or repealed. 127