Paradox of Self-Amendment by Peter Suber The "unofficial" methods of amendment affect the problem of self-amendment in two ways. First, they may in principle amend the "exclusive" AC and prevent its immutability even if self-amendment is not allowed. In this sense they decrease the chance that any legal rule will be found immutable. Similarly, they increase the chance that the utter self-repeal of the AC will not entirely extinguish the amending power. Or, from another standpoint, they make it easier for a judge to find an inherent or residual power to amend, if a constitution lacks an AC from inadvertence or self-repeal. Second, as rules of change in their own right, they may be self-applied. For each of the six methods I will ask how it might be self-applicable, whether our legal history shows anything that might be a case of its self-application, and whether its self-application raises any new issues not seen in the self-application of an offical AC. If the unofficial methods are indeed capable of amending the constitution, then each has a colorable claim to supremacy that conflicts with that of the official AC and the other unofficial methods. If each can amend each, then the "see-saw" method is greatly strengthened in its power to reach any content from our given initial position (see Section 13). B. Indirect self-amendment Indirect self-amendment has already been defined as the wholesale revision or replacement of a constitution (usually in convention) under the authority of the old AC. If the new document contains an AC different from the old, then self-amendment has occurred. It is indirect because the AC was not applied directly to itself, but instead authorized a convention that in turn authorized the new AC. Indirect self-amendment is more indirect when constitutional conventions, once convened, possess an authority of their own independent of the AC under which they were established. The logic of this method is substantially the same as that considered in Part One. If the old AC is thought to describe a continuing, not a self- embracing, power, then irrevocable self-limitation is impermissible. Under the inference model, indirect self-amendment is still self-contradictory, although the inference that models the amendment is a few steps longer. The ACs of most state constitutions, and Article V of the federal constitution, provide for both direct and indirect amendment, and for no other methods. If one of the "exclusive" methods of amendment authorized another method of constitutional amendment, and hence another method to amend the AC, then another form of indirect self-amendment would be possible. This could take the form of amendment by addition, when the new method is applicable to the original AC. If an AC created a rule of desuetude (see Section 19) and if a section of the AC subsequently lapsed through desuetude, then that would comprise indirect self-amendment. The states seem to allow any kind of amendment in convention, including the amendment of the Bill of Rights, entrenched rules, and the AC itself. They seem to acknowledge that the amending body (convention) is omnipotent, at least over the old constitution. This concept of amendment by convention comes very close to that of peaceful revolution. The crucial difference, of course, is that conventions are authorized by antecedent rules. Yet their omnipotence almost defies antecedent authority by its capacity to wipe the slate clean. (However, we know of no conventions that have tried to amend or repeal their own authority or jurisdiction.) Indirect self-amendment, the repeal and replacement of the old AC, is the undoing of the only link to the legal past, and while the self-amendment is antecedently authorized, it seems simultaneously to sever that link. The question whether a convention can be limited to a range of topics is beyond my subject, but the doctrine and holdings that conventions cannot be limited make them seem less authorized by antecedent rules and closer to instruments of peaceful revolution.[Note 6] Indeed, one common formulation of the theological paradox of omnipotence is whether a deity can make a creature it cannot subsequently control. The alternative to indirect self-amendment is even more intriguing. If a constitution is made in convention that is not authorized by the prior AC, which may be the case with the present constitution of the United States (see Appendix 1.D), then it must be in some sense self-justifying or authorized after the fact (or both). The ratification clause of our present federal constitution, Article VII, gave the terms of ratification that were to supersede the AC of the Articles of Confederation. Article VII bootstrapped the present constitution into validity because it was the only authority at the time for the constitution of which it was a part (see Section 7.B). If a convention violates or exceeds its authority, the prior AC, then revolution has occurred. The product of the convention can then become valid law only by self-justification or ex proprio vigore (by its own strength), much as a contract makes itself binding by its own terms,[Note 7] or by subsequent acceptance and acquiescence. Indirect self- amendment, then, paradoxical as it is, saves new constitutions from being revolutionary. We must choose between indirect self-amendment, self- justification (perhaps joined with the acceptance theory), or the perpetual, incurable illegality of every regime that lacks an infinite, continuous history of piecemeal amendment. C. Self-amendment without inconsistency If an AC authorizes its own change into a form not inconsistent with its original form, then even under the inference model there is no paradox. Ross would still object to the extent that self-reference was necessarily involved, but his chief argument would be disarmed. In the inference that models the amendment, the conclusion would not contradict a premise. However, finding an example of such an innocuous self-amendment is more difficult than it may appear. What if an AC does not provide for amendment by convention and is amended to provide such a procedure? Or what if the AC is silent on how many amendments may be submitted to the people at one time and is amended to impose a limit of two? These are amendments by addition, 89