Paradox of Self-Amendment by Peter Suber Section 13: The See-Saw Method Self-amendment may loosely be said to occur whenever an AC has been applied to itself. As suggested in Section 2, for some purposes it would not be illegitimate to speak of self-amendment when an AC was applied to any section of the constitution, for any amendment might be thought to use the constitution's supremacy against itself. But the paradox is sharpest, and by properly rigorous standards perhaps only exists, when the very same section or clause or method is used to change itself, directly or indirectly. If AC §1 describes a complete method of amendment and AC §2 describes another, then no paradox arises when AC §1 is used to amend AC §2 or vice versa. Because both rules belong to an article called "the amendment clause", we might say that "self-amendment" has occurred, but that would mistake form for substance. The application of one section of an AC to another section does not interest us as a form of self-amendment. However, as as a method of amending the AC without strict self-application, it is very interesting indeed. As we left things in Section 4.A.2, the application of one method of amendment to another, and then vice versa, is the "see-saw" method of amendment. Clearly it can change an AC that originally contains at least two methods of amendments to a form in which all original methods have been changed, without any strict self-amendment, for the application of AC §1 to AC §2 is irreflexive. The tantalizing possibility, left unexplored in Section 4, is whether any AC with any original content could become an AC of any other content, simply by means of the see-saw method. If so, then self-application will never be necessary, even for radical change of a genuinely exclusive AC. As noted in Section 4, the see-saw method, at best, can permit change of the AC without explaining how most actual ACs have been changed. So let us consciously leave realistic explanation behind and seek the limits of the see-saw method of amending the AC. If an AC originally has only one method of amendment, then it cannot employ the see-saw method until it uses its one method to add another. Apart from objections to self-amendment, only two obstacles might exist to the addition of a new method of amendment. The first is a general prohibition of amendment by addition, derived from a supposed implied limitation on the AC that all amendments must be "germane" —i.e. must address existing sections and alter them. Such claims have actually been made, based on an overly literalistic reading of the word "amendment" that excludes both addition and repeal. These claims have uniformly been rejected by courts. See e.g. State of Ohio v. Cox, 257 F. 334, 342 (S.D. Ohio 1919). The second obstacle is that amendment by addition, or the specific addition sought, might be barred by an express limitation in the form of an entrenchment or self-entrenchment clause. In Sections 8 and 9 I laid the groundwork for the conclusion in Section 11.B that an AC cannot irrevocably be limited by entrenchment, except for the (perhaps tacit) entrenchment of its immutable character as a continuing omnipotence. All limitations that purport to be irrevocable or immutable are, under the acceptance model, subject to future contingencies such as the next generation's attempted repeal of the limitation, which might be accepted as valid by the people and officials of that generation. I will assume in this section that an AC can add any clause to the constitution of which it is a part, including new and exotic methods of amendment. I will also assume that whatever power an AC possesses to repeal limitations on its power is held, a fortiori, by the AC attempting self- change by the see-saw method. If the most difficult case is the self-entrenchment of the AC itself, then the see-saw method might even succeed where ordinary self-amendment might fail. If AC §1 concentrically and completely entrenches the AC, forbidding all amendment of it, then ordinary disentrenchment requires the prisoner to open the outer door first. But disentrenchment by the see-saw method allows the methods of the AC to operate on one another from within the prison, and open the inner door first. Disentrenchment by the see-saw method, however, might be easier for the people and officials of a system actually to accept. I will refer to the methods of amendment within the AC as A, B, C, and so on. Each method might be the product of several different rules and sections of the AC. For example, method A and method B might share a procedure of proposal and differ in the procedure of ratification. The various methods, then, are subject to piecemeal amendment as their component procedures are altered by other procedures. There might, then, be see-saws within see-saws. But the inner articulation of each method of amendment may be ignored here; considering them may be essential to fine-tune the process from one AC to another, but it only complicates the question whether any content whatsoever can be attained from every initial set of amendment methods. If a given AC only contains method A, then it may add method B or any set of extra methods. The inquiry would apparently be at an end, and the answer be affirmative, if A is itself an omnipotent method of amendment or could add one. If B is a method of continuing omnipotence, then by our assumptions nothing bars A from adding it by amendment to the AC. Then, of course, B could make any change in A. While this is a short-cut to a very wide range of possible ACs, it may not suffice to attain every content. If the AC contains a method of continuing omnipotence, then one content it might find out of reach is that of an AC of merely finite power or the limiting case of "null content" —utter self-repeal. By my general arguments in Sections 8 and 9, an AC of continuing omnipotence contains an "immutable" self-limitation against further limitations. If B is that method, then there are great difficulties in the path if B is to disentrench itself and then make itself finite in power or repeal itself. But all limitations that purport to be immutable can be repealed, contingently, if acceptance subsequently shifts in the right direction. Method B could in principle, that is, contingently, disentrench and repeal itself. But that is self-application, not the see-saw method. If A were not itself omnipotent, then it might not be able to disentrench and repeal B (though this will be examined). But it could add C, also of continuing omnipotence and containing explicit, specific language giving it priority over B. Then C may disentrench and repeal B. This works to eliminate B (again, only under the acceptance model) but an "immutably" entrenched, omnipotent method remains in C. 97