Paradox of Self-Amendment by Peter Suber Section 19: Amendment by Desuetude Desuetude is the doctrine that long and continued non-use of a law renders it invalid, at least in the sense that courts will no longer tolerate punishing its transgressors.[Note 1] U.S. v. Elliott, 266 F.Supp. 318, 325 (D.C.N.Y. 1967). It is common in the Roman, civil law nations of Europe, but not in England or the United States. The only Anglo-American system to recognize desuetude is Scotland.[Note 2] Desuetude was formerly recognized in this country, O'Hanlon v. Myers, 10 Rich. 128 (S.C. 1856); but the present "official" view rejects it, at least for statutes. "There can be no repeal of a criminal statute by the failure of authorities to prosecute or convict for its violation." Callahan v. State, 156 Md. 459, 144 A. 350 (1929). Despite the "official" view, some vestiges still remain, for example, in the American Bar Association Standards Relating to the Prosecutorial Function. The A.B.A. lists eight factors that should influence prosecutorial discretion, one of which is "prolonged non-enforcement of a statute, with community acquiescence." This is mere prosecutorial policy, not a rule that might bind a court.[Note 3] But a trace of desuetude in the latter sense still exists as well. In the Elliott case, above, the defendant was charged with violating a statute enacted half a century earlier and never used.[Note 4] After reviewing cases and scholars asserting the "official" view, and some arguing against it, the court left the door ajar by ruling that there is little analytical aid in merely applying, or refusing to apply, the rubric of desuetude. The problem must be approached in terms of that fundamental fairness owed to the particular defendant that is the heart of due process. Elliott, id. at 326. Although finding the old law valid and convicting the defendant, the court in effect resurrected or recognized the doctrine of desuetude by translating it into the modern doctrines of fairness, notice, vagueness, and due process. Where desuetude still exists it is a rule of change for the types of law to which it applies. If desuetude could apply to American constitutional rules, which has been debated,[Note 5] then parts of the AC could be repealed through desuetude. That, of course, would not constitute self- amendment, for desuetude is not authorized by the AC itself. It would constitute amendment of the AC by an "unofficial" method of amendment outside the AC, just as it would be if amended by judicial review or treaty. One provision of the federal AC has never been used in the history of the clause: the provision for states to petition Congress to call a national convention.[Note 6] By "not used" I mean that while many states have petitioned Congress to call a convention, they have never triggered action by Congress under Article V to call such a convention. Could this provision fall into such neglect that it may no longer be used? That is doubtful, even though the history of its neglect may constitute a practical (not legal) impediment to its use. The uncertainty of its operation combined with the gravity of its potential consequences is today probably the single greatest obstacle to its use; and much of the uncertainty about the clause is undoubtedly due to its non-use. Genuine self-amendment of the AC through desuetude could occur only if the AC already allowed repeal by desuetude (say, by a prior act of self- amendment) and if that provision lapsed through desuetude. Leaving the AC aside, the same form of self-amendment could occur to the common law or customary rule of desuetude (if there is one). Indeed, this may have happened in the United States: our earlier recognition of desuetude may have waned through desuetude. More likely, though, it was reversed by more or less deliberate policy choices or evolving concepts of law itself, such as a growing formalism, positivism, deference to legislatures, and increased codification of the common law. But if the doctrine of desuetude had been repealed by desuetude in the United States, then we would face the same sort of problem faced in the case of self-repeal by sunset clause (Section 12). Desuetude could undo desuetude only by the continuing, present validity of desuetude. The cat could be made to vanish only if a grin remained. Desuetude may not have been repealed by desuetude, but a closely related doctrine may have governed its own demise. Sir C.K. Allen believes that desuetude has never been recognized in England. However, he says,[Note 7] There was...at one time a theory, which, under the name of 'non-observance', came very near to a doctrine of desuetude, that if a statute had been in existence for any considerable period without ever having been put into operation, it might be treated as null....[I]t may now be considered to be wholly discarded. How does non-observance differ from desuetude and why is it now discarded? Non-observance, it seems, treats a rule as if it were null by refusing to enforce it after a long period of non-enforcement, while desuetude (when applicable) would declare a rule actually null by obsolescence. The distinction may be accepted, but clearly the doctrine of non-observance, now "discarded" and not repealed by statute, did not fall by desuetude. If it applied only to statutes, or to rules that were themselves never applied, then it cannot apply to itself. But if it describes the quasi-nullity of any rule that will not be enforced due to long non-enforcement, then it truly describes its own current status —or would do so but for the present or continuing validity it would need to do so. Repeal by desuetude is much like repeal by sunset clause. Indeed, we could call the doctrine of desuetude an implied and indefinite sunset clause. This highlights a significant difference between the two. A sunset clause may be part of the legal rule being repealed, and typically is. Therefore we must ask how it tells us with authority, after self-repeal, that repeal has occurred. But the doctrine of desuetude is external to the rule being repealed (but for the extraordinary, reflexive application to repeal the doctrine of desuetude). Therefore, its normal operation is irreflexive and raises no question of partial or total self-repeal. While sunset clauses resemble the skeptics' statements of uncertainty, which "cancelled 128