Paradox of Self-Amendment by Peter Suber a mandamus action brought by the citizens to force the Secretary of State to put the proposal on the ballot, the Supreme Court held for the Secretary, declaring the proposal to be "legislative" rather than "constitutional" on account of its "very temporary" provisions. State ex rel. Halliburton v. Roach, 230 Mo. 408, 130 S.W. 689 (1910).[Note 1] The Halliburton court did not apparently disapprove sunset clauses in constitutions per se, but only those providing too short a life for a constitutional rule. Indeed the proposal in this case would have amended a provision that was itself subject to a sunset clause, and that had expired in 1881. The court voiced no regret that the framers had used the device. If the court had declared sunset clauses nullities per se, then the 19th century rule to be amended would have been resurrected, rendering it liable to the 1910 amendment proposal, removing one defect from that proposal. But as soon as the 1910 proposal was rehabilitated from this direction it would have to be quashed from another on account of its sunset clause. The narrow ruling in Halliburton seems to be that amendment proposals whose content is very particular and by nature subject to periodic change, smelling legislative from two causes, cannot also be made subject to sunset clauses of comparatively short duration, for to add this third cause would definitely push the proposal over the line separating constitutional rules from legislation.[Note 2] B. Self-repealing sunset clauses If a sunset clause is included in the rule to expire, call it "reflexive". Call a sunset clause outside the rule it governs "irreflexive". If the two sunset clauses in the federal AC are interpreted to govern the importation of slaves and capitation taxes, then they are irreflexive; but if they are interpreted to govern the scope of the amending power, then they are reflexive, for they are located in Article V. Most statutory sunset clauses are reflexive, for there is no single amendment rule for statutes in which they might be put. Moreover, because statutes are drafted and adopted one after another, if one is to be subject to a sunset clause it must usually contain the clause itself. Note a peculiar feature of any reflexive sunset clause, for example, clause C in statute S, saying "statute S will expire at time T". If one were to ask, some time after T, whether S were valid, the answer would clearly be no. But how do we know that? We know by reference to the wording of C. These words bind us even after they expire. Those who act as if S were still valid may be opposed in court on the ground that present law recognizes that S has expired. The sunset clause itself may be cited as authoritative on the past effectiveness of the repeal of S. But to do so means that we believe the sunset clause did not completely swallow itself. Statute S, including sunset clause C, did expire, but somehow a meta-statement about this expiration did not expire. But there was no such meta-statement in S. If the meta-statement is law, then it appears that it expired; and if did not expire it appears that it is not law. But if we insist after time T that valid legal authority can be cited for the invalidity of S, then we are appealing to such a metaphysical mystery. The cat is gone but the grin lingers on. This raises the most interesting question whether a properly reworded reflexive sunset clause could utterly repeal itself, cat, grin, and all, leaving no legal authority behind on which to assert the invalidity (expiration) of the laws it took with it. Suppose the following sentence appeared after the substantive portion of a statute or constitutional rule, but in the same section: This section shall be utterly null and void, for all intents and purposes whatsoever, at 12:01 A.M., January 1, 2000 A.D., and forever thereafter. After the expiration date, how will we know that the section has expired? Has the expiration-directive expired too? If it has, then the section is paradoxically valid and invalid at once: valid because the expiration-directive is ineffective (having expired), invalid because the whole section is valid, including the expiration-directive (because the expiration-directive is self-nugatory). In fact, the validity of the section would imply its invalidity, and its invalidity (at least its invalidity solely on account of the expiration-directive) would imply its validity. After the expiration date the section becomes a genuine paradox of the Liar-type as defined in Section 1 —true if false and false if true. In the hypothetical case of the self-repeal of an entire legal system, we would worry less, for we are less likely to want to cite a currently valid legal authority for the occurrence of legicide after it had supposedly occurred. But a court would be enwrapped in paradox if a citizen challenged the validity of the total self-destruction of law. The court could decide that it had jurisdiction only if it had already decided the question at issue against the plaintiff. The court could not hold for the validity of the legicide without subverting itself, nor against its validity without at least a suspicion of illegitimate bootstrapping, nor could it even authoritatively dismiss the case without presupposing a position on the merits.[Note 3] If utter self-repeal leads to the paradox of the liar, what about partial self-repeal? If the substantive portion of a statute expires but the expiration- directive survives, then this clearly gives effect to the intent of the framers, but at the expense of the "plain meaning" of the language and the appearance of a logically arbitrary preference for the expiration-directive over the substance. In law, the evident intent of the framers might well supersede the logic of the situation, especially when the latter leads to paradox. The expiration-directive could be read as self-excepting. The appeal to the framer's intent lessens the arbitrariness of the interpretation; but even if arbitrary, avoidance of paradox may comprise a legally sufficient reason to read the statute and sunset clause in this way. Of course, under the acceptance model, partial self-repeal and arbitrariness may be accepted, and avoidance of paradox is not urgent. Even total, paradoxical self-repeal may be accepted, as we will see. The appeal to the intent of the framers loses its force as the intent shifts (as in our hypothetical) from those common to actual sunset clauses to the mischievous purpose of complete self-repeal. For the latter purpose the language of the clause should be tightened: This section, including this very sentence, shall be utterly null and void... 101