Paradox of Self-Amendment by Peter Suber The holding of Halliburton was criticized by Henry Rottschaefer, Handbook of American Constitutional Law, West Pub. Co., 1939, at 398. For some surprising data on very frequent constitutional amendment, see note 6 to Section 15, below. 3. These paradoxes are similar to the question, which has actually arisen, whether the constitution that establishes a certain court may be declared invalid by that court. Some courts have held it logically impossible to declare such invalidity. Luther v. Borden, 48 U.S. 1, 39-40 (1849), Coleman v. Miller, 307 U.S. 433, 455, 457 (1939), Carpenter v. Cornish, 83 N.J.Law. 254, 83 A. 31 (1912), State v. Starling, 15 Rich.Law. (South Carolina, 1867). Other courts have held that a judgment of invalidity could be competent. Loring v. Young, 239 Mass. 349, 132 N.E. 65 (1921). 4. Sextus Empiricus, Works, vol. 1, Outlines of Pyrrhonism, trans. R.G. Bury, Loeb Classical Library, Harvard University Press, 1933, at i.14-15, i.206- 07, ii.187-88. 5. Michel Eyqem de Montaigne, The Complete Works of Montaigne [the Essais], trans. Donald Frame, Stanford University Press, 1948, "The Apology for Raymond Sebond," II:12.392-93. 6. Self-repeal could be avoided if, seeing the expiration date imminent, an irreflexive repeal (or extension) were passed by the appropriate body. If the sunset clause in the federal AC protecting the importation of slaves, which expired in 1808, had been preempted in this way, say, by adopting the Thirteenth Amendment in 1807 instead of 1865, then a new problem would arise: the irreflexive repeal of the provision protecting slave trade would directly violate the entrenchment function of the sunset clause. The slavery sunset-entrenchment clause was not self-entrenched, except perhaps impliedly, and therefore probably could have been repealed (see Section 8). But to violate the clause without repealing it is much less acceptable; and this seems to be the effect of supposing that the Thirteenth Amendment had been adopted in 1807. If that had happened, we would exchange the paradox of self-repeal of a sunset clause for the paradox of the self-disentrenchment of the AC. 7. More on the reflexivity of renvoi (the circuitous quest for applicable law) and a larger family of "know before we know" paradoxes in law may be found in Section 20.H. 8. Constitutions that are already ratified but not to become effective for a certain time fall into the same category as the statutes mentioned in the original objection. Such constitutions, incidentally, were common in states anticipating admission to the Union. 9. Compare McCullen v. Williamson, 221 Ga. 358, 144 S.E. 2d 911 (1965), discussed above in Section 8.B, in which an amendment said of itself that its effective date was to be determined by the school boards that it would consolidate. In all the controversy over the permissibility of deferring a constitutional question to local government, and permitting contingent delay of effectiveness after ratification, no one seems to have noticed that the problematic effective date clause was being considered effective before it was effective. Even its opponents found it defeasible only by general constitutional principles, not by paradox. 104