Variations on the Theme
Introduction to Part Two
Paradox of Self-Amendment Table of Contents
A. The exclusivity of the federal AC
If amendment can occur in many ways, then the possibility of the paradox of self-amendment can occur in many ways. The most direct form of amendment was considered in Part One: the direct application of the AC to the clause to be changed, the AC itself. That method of amendment raises so few extraneous problems that the issues of the paradox could be examined without distraction. Other forms of amendment will be considered in this Part. Those methods that do not take us into new legal or logical territory, or that reverse assumptions made in Part One, are summarized in this section, while methods requiring more discussion and exploration have sections to themselves.
If the constitution can be amended by methods other than those in the AC,
then the AC will be mutable even if self-amendment is not recognized. The
"official" view in most states and in the federal system is that the AC is exclusive.
Even if minor procedural defects in the adoption of a given amendment are curable
by ratification or acquiescence, substantial compliance with the terms of the AC is
necessary to the validity of any amendment.[Note 1]
The exclusivity of the federal AC was strongly stated in Ullmann v. United States,
350 U.S. 422, 53 A.L.R.2d 1008, rehearing denied, 351 U.S. 928 (1956):
Nothing new can be put into the Constitution except through the
amendatory power. Nothing old can be taken out without the same
Jameson put the exclusivity principle even more strongly:[Note 2]
Even were the whole people, by unanimous action, to effect organic
changes in modes forbidden by the existing organic law, it would be
It would be revolution if not authorized, but under the acceptance model
unauthorized change may be authorized ex post facto, and under the inference
model subsequent fictions may deny the discontinuity. Jameson implies, however,
that not even acceptance can overcome the exclusivity of the AC. His principle
infringes upon the unqualified postulate of popular sovereignty, a consequence that
was recognized and ratified in this context by Henry Rottschaefer:[Note 3]
The legal assumption that sovereignty is ultimately vested in the
people affords not legal basis for the direct exercise by them of any
sovereign power whose direct exercise has not been expressly or
Most state constitutions have clauses that assert popular sovereignty, and to
that extent make it closer to an enforceable principle of law than a bromide of the
campaign trail. In Iowa in 1883 a clause declaring that "all political power is
inherent in the people" was held incapable of authorizing a constitutional
amendment ratified by the requisite popular vote but not agreed to by both Houses
of the General Assembly as the AC required. Koehler v. Hill, 60 Iowa 543, 14
N.W. 783, 15 N.W. 609 (1883). This may seem an unnecessary or undemocratic
diminution of popular sovereignty, but the same principle can be expressed from the
opposite perspective, as when this limitation on the people's power is asserted in the
name of self-determination. In Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963,
967-68 (1912) the exclusivity principle was expressed as a right to lawful
government, not a violation of the right to popular sovereignty, or as a product, not
a limitation, of autonomy.[Note 4]
Koehler and Crawford manifest the paradox of omnipotence nicely, by
showing that self-limitation is, first, an autonomous act, and second, a limitation of
autonomy. They also raise the theme of Section 9, that all law is in a sense
incompletely self-entrenched by requiring conformity to its own forms and
procedures and forbidding its own change except through its own methods. The
official view, that the AC is exclusive, is a good example of the formalist fiction
asserting this sort of weak self-entrenchment in the face of contrary evidence. In Sections 14-19 I will explore six ways in which the federal constitution might be (and might have been) amended other than through the "exclusive" methods of Article V, even though two of them (Sections 14, 16) derive indirectly from Article V.
The six methods are: amendment by sunset clause (Section 14), by judicial review and reinterpretation (Section 15), by implication or the lex posterior principle (Section 16), by treaty (Section 17), by an "inalienable right to alter or
abolish government" (Section 18), and by desuetude (Section 19). The de facto permissibility of these methods varies. Some are clearly permissible, at least de facto (Sections 14, 15, 16), while others are doubtful (Sections 17, 18, 19). One is clearly permissible de jure (Section 14), and one is probably as fully recognized (Section 16), while the others are either subjects of reasonable disagreement as to their permissibility or "officially" considered beyond the exclusivity of the AC and not genuine rules of change for the constitution. None is expressly forbidden by the
AC, bringing them within the diluted, permissible range of Jameson's principle. Three have a constitutional basis outside the AC (Sections 15, 17, 18) and two have a constitutional basis within the AC (Sections 14, 16).
Their de facto permissibility is an argument in favor of the acceptance that
recognizes them over the formalism that does not.[Note 5]
Because they also represent the victory of covert over overt methods, with the
assistance or active participation of the judiciary, they have raised the hackles of
conservatives who wish that judges would only "discover" law. While the judicial
role in these methods of amendment cannot be denied, it has often been subservient
to the executive (Sections 17, 19). In any case, the threat of anti-majoritarian
tinkering and usurpation may inhere in these methods, but their history shows them
to have served as a check on majority oppression and a facilitator of majority rule
when the latter is stymied by difficult amendment procedures.
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
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
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
Confedeconstitutionicle VII bootstrapped tconstitutiononstitution 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, which might seem the least
troublesome examples; but in fact they create difficulties. If the original AC has
been interpreted as the exclusive set of methods of amendment, then is amendment
to provide another method a change to a form inconsistent with the original form?
The answer must be yes, if we consider the meaning of constitutional language,
even for purposes of deciding such "logical" questions as consistency, to be a
function of the interpretation of the courts, especially the highest courts. The AC
by its exclusivity "preempted the field", making all additions "inconsistent" with the
However, this is a case in which specific authorization will prevent
inconsistency (see Section 11.A and below in this sub-section). A specific
authorization to add new methods of amendment will rebut the original presumption
or refute the original interpretation of exclusivity. A federal statute that was
intended to preempt the field, say, by specifically authorizing state additions or
modifications, is not inconsistent with such state modifications, except by other
tests of inconsistency. This shows that when an AC really is exclusive, then even
self-amendment by addition will create an AC inconsistent with the original AC.
And even when the theory of exclusivity has been abandoned, self-amendment by
addition might create an AC inconsistent with the original AC by some other test of
inconsistency, for example, by permitting what was once forbidden. This also
shows that ascertaining the "inconsistency" of laws is not a simple problem, and
that various tests might come into play.
Amendments by addition that merely fill voids left by silence, as opposed to
providing new methods of amendment to an exclusive AC, may create the same
problems. One is not contradicting the exclusivity of the original AC by expansion,
but one is in effect doing the opposite, contradicting the openness of the original
AC by limitation. But again, one may do it by specific authorization. If an AC is
amended to limit the number of proposals that may be submitted to the people at
once, when no such limit existed before, then presumably 25 proposals could have
been submitted for ratification at once under the original AC. The amendment,
then, has the effect of prohibiting what was once permitted, which is one way to
define legal inconsistency.
If we look to amendments that modify existing sections or clauses, rather
than merely add new ones or fill voids, then the problems are even greater.
Obviously most such amendments will have the effect of prohibiting what was once
permitted, or of permitting what was once prohibited. That will usually be the point
of the amendment, of course. Indeed, the only exceptions appear to be amendments
designed to make no difference.
Still, there have been amendments designed to make no substantive
difference. The AC may be used to reorder and renumber the sections of the
constitution, including the AC, or to reorder and renumber just the sections within
the AC. These clearly count as cases of self-amendment, tconstitutiono not
change the substance of the constitution or AC in any way. As examples one may
cite amendments in Pennsylvania in 1967, Minnesota in 1974, Hawaii in 1978, and
North Dakota in 1979.[Note 8]
Aside from these restructuring and renumbering amendments, might we find
another species of self-amendment without inconsistency in amendments that, for
example, lengthen or shorten the minimum period between legislative proposal and
popular ratification? These amendments raise the fascinating question whether
more of a quantity is "inconsistent" with less of it, or merely cumulative.[Note 9]
The question has never been answered in constitutional law for any quantity
associated with amendments.[Note 10] The reason may be that nothing turns
on the answer, since self-amendment is permissible whether or not the new AC is
inconsistent with the old AC.
But the question has been answered in other branches of law. In probate, settled doctrine asserts that a later will "inconsistent" with an earlier will automatically revokes the earlier will. If a later will gives a particular heir $2,000, and an earlier will identical in every other respect gave only $1,000, then are the two wills inconsistent? Is more money inconsistent with less money, or cumulative? The legal answer mostly ignores the logic of consistency and addresses the presumed intent of the decedent. The two amounts are rebuttably presumed to be cumulative or additive, not inconsistent or "substitutional". See Gould v. Chamberlain, 68 N.E. 39 (1903). By analogy, the question in the law of constitutional amendments would most likely address the ultimate policy issues rather than the mere logic of consistency.
In any event, it should be noted, to lengthen or shorten the minimum period
between proposal and ratification would certainly permit what had been prohibited
or prohibit what had been permitted. If the latter is taken as the operational
definition of change to a form inconsistent with the original form, then we are left
with the perhaps surprising result that there seem to be no cases of self-amendment
without inconsistency except cases of mere restructuring and renumbering.
Before we go on it is worth noting explicitly that these rare and apparently
trivial cases of self-amendment without inconsistency are nevertheless important to
theory. They show that if one does not object to self-reference per se (as Ross
does), then one has no logical objection to all self-amendment. One must limit the
logical objection to those cases of self-amendment that create inconsistencies
between the old and new ACs.
Now what is the proper legal test of inconsistency? The simplest logical test
applies only to declarative statements: that they are inconsistent if and only if their
conjunction is a contradiction. It does not carry over into the realm of prescriptive
statements, if only because prescriptive statements are either non-cognitive (neither
true nor false) or the object of a dispute as to their cognitivity. Some propositions
of law are prescriptive; few are declarative or descriptive; but the logic of
declarative statements will not apply without modification to the propositions of
law. The logic of prescriptive statements, commands, and terms such as
"obligatory", "permissible", and "impermissible", is called deontic logic, from
"deon", the Greek for "duty".
The test of inconsistency in deontic logic is itself unsettled. Let us adopt the
following standard symbols, when "p" stands for some action:
||p is obligatory
|O ~ p
||refrainment from p is obligatory
||p is permissible
|P ~ p
||refrainment from p is permissible
Let us take these equations as fundamental axioms:
||~ P ~ p
|O ~ p
||~ O ~ p
|P ~ p
This is to suppose that obligation translates into the impermissibility of refrainment, and permissibility translates into the absence of an obligation to refrain. Georg Henrik von Wright believes that the negation of Op is P ~ p.[Note
11] Alf Ross, who is probably better known for his contribution to deontic logic than to jurisprudence, disagrees, believing that the negation of Op is O ~ p.[Note 12] In full prose, the negation of
p is obligatory
refrainment from p is permissible (von Wright)
refrainment from p is obligatory (Ross).
Both von Wright and Ross would agree, however, that the two formulas are "inconsistent" with Op.
In addition to the intramural disputes of deontic logic,[Note
13] there is the problem of applying the doctrines of formal logic
straightaway to law. As Lon Fuller described the task of discerning inconsistencies in law,[Note 14]
It is generally assumed that the problem is a simple one of logic. A
contradiction is something that violates the law of identity by which A
cannot be not-A. This formal principle, however, if it has any value at
all, has none whatsoever in dealing with contradictory laws.
The legal tests of inconsistency are the only legally relevant tests, and
whether they incorporate any particular logical test is contingent. Like Ross on
self-amendment, many logicians who have turned to jurisprudence are unreflective
and hasty in assuming the unqualified applicability of formal logic to law, or more
precisely, the unqualified adherence of law to formal logic.[Note
15] Of the more sophisticated legal treatments of this problem, special
mention should be made of Lon Fuller, Howard Zelling, Ilmar Tammelo, Allan
Murray-Jones, Gary R. Rumble, Dennis Lloyd, and A.G. Guest.[Note
Summarizing and paraphrasing Murray-Jones,[Note
17] the chief legal tests of inconsistency appear to be four:
Whether a superior law purports to preempt the field of its subject matter, or to claim exclusivity, when an inferior law enters that field in any way (I will call this the "preemption" test);
Whether simultaneous compliance with two laws is impossible (the
Whether one law forbids what another permits, or permits what another
forbids (the "deontic" test);[Note 18] and
- Whether an inferior law impairs or obstructs the operation of a superior law (the "obstruction" test).
The compliance test seems at first sight the closest to a bare logical test, but
Fuller asks whether there is "any violation of logic in asking a man to do something
and then punishing him for it?"[Note 19] He argues that such a dilemma only
violates policy, not logic, which seems perfectly true. Fuller's ultimate point seems
to be that inconsistency in law is a matter of policy, not logic, and is found to exist
or not to exist only for certain alogical policies.[Note
20] The obstruction test is always a policy question insofar as it differs
from the preemption test. The preemption test involves policy questions when an
intent to preempt the field must be inferred or presumed,[Note
21] or when "the field" preempted must be defined.[Note
Depending upon which test we select, the inference that models amendment
may or may not be invalid (the conclusion and premises may or may not be
inconsistent). I prefer the deontic test because it is the weakest or minimal test of
inconsistency. Whatever we mean by inconsistency in law, at least we mean the
deontic test. Therefore it imports the fewest assumptions and hidden premises.
The other three tests or types of inconsistency are special and limited cases of the
deontic test. A preempting or exclusive superior rule only conflicts with an inferior
rule if the latter attempts to permit or forbid what the superior rule forbids or
permits. Simultaneous obedience to two rules is impossible only if one forbids
what the other requires (and therefore permits). And an inferior rule can only
obstruct the operation of a superior rule by permitting delay or circuity or by
forbidding efficiencies not contemplated by the superior rule.
Of course a narrow concept of inconsistency will allow self-amendment
under the inference model when the deontic test would forbid it. If the old AC
provides two methods of amendment between which the legislature may choose
with unfettered discretion, and if the new AC eliminates one or allows one only for
certain types of amendment, then the deontic test shows inconsistency (the new AC
forbids what the old AC permitted), but the compliance test shows consistency
(simultaneous obedience is possible by refraining from using the restricted or
abolished method). Choosing between these tests is not completely amenable to
logical methods. There is some logical support for using that test that makes
everything inconsistent that any test makes inconsistent, because inconsistency is so
absolutely unacceptable in formal logic and because the minimal sense carries the
fewest presuppositions. These criteria favor the deontic test, but not conclusively.
For legal purposes, which vary from one context to another, other tests may be
desirable. The compliance test is best suited to identifying inconsistency among
criminal statutes, where clear notice is a strong policy and attainable compliance is
an important goal (see Section 21.B). The preemption and obstruction tests are
most suitable for preserving the supremacy of federal law in the face of state
encroachments, which is desirable primarily for policy reasons such as uniformity
and predictability, or for preserving the supremacy of constitutional rules over
inferior rules, which is desirable for the policy reasons of federalism and the
shielding of fundamental rules from easy and hasty change. The deontic test has
been applied to conflicts between constitutional rules and amendments in In re
Interrogatories Propounded by Senate Committee Concerning House Bill 1078,
189 Colo. 11, 536 P.2d 308 (1975).
The policy questions behind the tests of inconsistency prevent the objective
tests of formal logic from finding useful application in law and from being decisive
grounds for findings of consistency and inconsistency. For the same reason,
inconsistency in law is a different type of relationship than in formal logic. As
Fuller put it,[Note 23]
[W]hat we call contradictory laws are laws that fight each other,
though without necessarily killing one another off as contradictory
statements are assumed to do in logic.
In logic one of the most unquestioned certainties is that both poles of a
contradiction cannot be true at once; they "kill one another off". To assert one is
demonstrably and unavoidably to deny the other. This is the work of the principle of
non-contradiction ("not both p and not-p") conjoined with the principle of excluded
middle ("not neither p nor not-p"). The principle of excluded middle was regarded
as the natural partner of the principle of non-contradiction for centuries until some
paradoxes of logic and difficulties in the mathematics of the infinite seemed best
soluble by its separate denial. In law neither the principle of non-contradiction nor
the principle of excluded middle holds without qualification. If two rules that are
contradictory by one test are interpreted under another test, for policy reasons
peculiar to law and inadmissible in logic, then they might be found consistent.[Note
24] Both the "inconsistent" rules of law might remain valid. Their
coexistence in validity, or failure to kill one another off, is a sign that in law policy
triumphs over logic whenever policy requires it.
As noted in Section 11.A, it is tempting, but incorrect, to believe that if rule P
specifically authorizes rule Q, then P and Q cannot be inconsistent (authorization fallacy). If rule P is an AC, then it may authorize an additional method of
amendment or the repeal of an existing method, in both cases creating a
successor-AC that is inconsistent with the P by the deontic test. If P repeals and
replaces itself with completely different methods of amendment, then P and Q could
be inconsistent by the compliance test.
Among ACs and their successors, the preemption and obstruction tests do
not apply, for an AC and its successors are on the same hierarchical level.[Note
25] However, if rule P authorizes a change Q in a lower level rule, then
most likely the preemption and obstruction tests could find no inconsistency, for Q
would prove that P did not preempt the field or forbid the type of obstruction
represented by Q.
Because authorization does not remove inconsistency, for the deontic and
compliance tests, the paradox of self-amendment cannot be resolved be rewording
the AC to insure specific authorization of the important varieties of
self-amendment. Such rewording would only insure that the legal problems were
surmounted, i.e., that self-amendment would be recognized as valid by legal
criteria. (But even without such rewording self-amendment has never been legally
problematic.) Inconsistencies would remain by logical and legal tests; indeed, the
point of specific authorization is to legitimate such inconsistencies and establish
new law despite their presence.
However, rewording the AC to provide specific authorization for
self-amendment will make even more tempting what I have called the authorization
fallacy.[Note 26] One might be tempted to add a
proviso to one of the standard tests of inconsistency, saying essentially, "...provided
that any rule specifically authorized by a (prior, higher) rule is not inconsistent with
the latter." This proviso would make authorization part of a test of inconsistency, in
fact, an infallible cure or rectification of inconsistency. It is a fallacy (logically)
because it reverses the logical order of investigation, or (legally) because it confuses
legal and logical authority. Logically, if a premise and conclusion are inconsistent
(when the premises are consistent with one another), then the alleged authorization
is denied; the inference is invalid. The validity of the inference depends upon the
consistency of its premises and conclusion, not vice versa.
A good example is the concept of self-embracing omnipotence, which is
defined so as to authorize any self-amendment. Immutable self-limitation
contradicts the authority, which prevents it from occurring under the inference
model or formal logic generally. Authorization provides a legally sufficient reason
to accept an outcome as valid; if the authority and outcome are inconsistent, then
authorization provides a legally valid excuse to ignore the inconsistency. This is
significantly different from eliminating or curing inconsistency. Authorization
provides no logically sufficient reason to ignore inconsistency.
If an AC limits itself even revocably, then the new AC is inconsistent with
the old AC by the deontic test. Until the revocable limitation is repealed, something
is impermissible that was once permissible. Specific authorization by an AC for a
certain change may rebut a presumption of exclusivity or preemption, but it cannot
negate any inconsistency under the deontic or compliance tests. Here we must
admit that law is superior to logic because its rules can authorize inconsistencies. Alf Ross's basic principle held that from a valid norm no inconsistent norm may validly be derived; it is true of logic, false of law. But even Ross does not allow specific authorization to erase inconsistencies; rather, inconsistencies erase the authorization and prove the invalidity of the derivation. The opposite of Ross's principle is true in law precisely because valid legal authorization can make rules
legally valid without eliminating inconsistencies under the deontic or compliance tests. In other terms, self-amendment is paradoxical so long as we use the deontic or compliance tests of inconsistency, although the compliance test will find fewer cases of self-amendment to be self-contradictory than the deontic test. Neither the preemption nor obstruction tests are applicable to self-amendment, and specific
authorization does not eliminate, but merely domesticates, inconsistencies.
Note that all substantive changes of law involve inconsistencies under the
deontic test. We do not normally wish to change any law except to forbid
something formerly permissible or to permit something formerly impermissible, or
to clarify just what is permissible and impermissible. In this sense all substantive
legal change is contradictory in the manner of self-amendment, except that the rule
of change that authorizes it is not always the law being changed.
At first it may appear that Ross's principle would not forbid irreflexive legal
change, since the new rule may well be consistent with the rule of change that
created it and only inconsistent with its predecessor-rule. But Ross's logical method
implies that ordinary irreflexive legal change is impermissible too. If a rule of
change P authorizes a given rule of present law Q, then a valid inference must have
been constructible from P (perhaps with other premises) to Q. If the set of premises
was internally consistent, then we know that P and Q are consistent. If P is then to
authorize ~Q, then the set of premises that assisted P in justifying Q will necessarily
be inconsistent with ~Q and incapable of authorizing it in a valid inference.
Granted, this objection requires the comparison of procedural rules of
change, P, with substantive rules of conduct, Q, for consistency, which is difficult
for any of the tests so far discussed. Is the federal AC consistent both with
Prohibition and the repeal of Prohibition?[Note
27] Legally the answer must be yes, but Ross's presuppositions do not
allow him that answer. The burden is on Ross and the logicians to show how the
same set of (internally consistent) premises can authorize contradictory conclusions.
By their logical criteria this is impossible. Any principle that would make ordinary
substantive legal change impermissible is clearly, by legal criteria, a reductio ad
D. Self-amendment of a non-supreme rule of change
Supreme rules of change sharpen the dilemma originally enunciated in
Section 3 because, if they cannot amend themselves, then it seems that they cannot
be amended at all. Alf Ross, we concluded, allows the amendment of constitutional
ACs only on the ground that they are not actually supreme. The availability of six
methods of constitutional amendment outside the AC allows the AC to be mutable
even if it is not self-applicable and even if Ross's tacit, transcendent rule of change
is denied. If we believe that one of the unofficial methods has actually amended the
AC, then we must decide whether the AC was not actually supreme or whether it
was co-supreme with the method that changed it. The importance of supremacy to
the paradox of self-amendment is that, in a logical hierarchy of rules in which
superior rules can change inferior rules, and possibly themselves, but in which
inferior rules can never change superior rules, the supreme rule(s) of change must
be self-applicable or immutable.
We start with the principle, then, that a non-supreme rule of change will be
mutable whether or not it is self-applicable. It may be changed at least by the
supreme rule of change. But from here things quickly get complicated, for even if
self-amendment is presumed permissible for all rules of change (even for the sake
of argument or exploration), some non-supreme rules of change will be able to
amend themselves and some will not.
For example, the power to make statutes can also be used to amend statutes.
But that power is partly constitutional and to that extent beyond the reach of
statutes. Hence, the power to make statutes cannot change itself, at least not its
constitutional basis and not by statute. But on the other side is the power to
adjudicate, which is also a power to amend the rules of case law. The rules of stare
decisis on the permissibility of overruling past decisions, and of departing from
binding precedent, are themselves rules of case law, subject to amendment by
adjudication and, more strongly, in accordance with the very rules being modified.
It seems that the power to change statutes cannot amend all parts of itself while the
power to change case law can.
Non-supreme rules of change that are capable of self-amendment present,
when self-applied, the same logic as supreme rules of change. Supremacy does not
bar or even complicate self-amendment; it only raises the stakes. But there is
another form of self-amendment that non-supreme rules of change render possible.
A hierarchy of rules or powers may be irreflexive in the sense that the higher rules
take priority over the lower in a strict linear manner, and the lower never, even
indirectly, take priority over the higher. Or it may be reflexive in the sense that the
lower rules occasionally do take priority over their superiors; or that the powers of
the system authorize or at least check one another in a circle. A reflexive hierarchy
is "reflexive" because, if inferior rules occasionally supersede superior rules, then
mutual change, or indirect self-amendment, can occur.
An example of an irreflexive hierarchy is the Army chain of command in
which generals always supersede sergeants, and sergeants never supersede
generals. Another example is a card game like bridge in which higher cards always
take lower cards and never vice versa. The existence of trumps does not violate
this condition; it only "customizes" it on the fly. The Army chain of command may
become a reflexive hierarchy if a captain is physician to a general and entitled in
that capacity to give orders to his patients. Our legal system may be a reflexive
hierarchy in which, for example, legislation is subject to the veto power of the
executive, and the executive is subject to the impeachment power of the legislature;
or in which the courts can nullify legislation, and the legislature can frequently (but
not always) overrule or disband courts; or in which the people authorize the
executive and legislature by voting, which in turn authorize the judiciary by
appointment, confirmation, and statutory control, which in turn checks executive
and legislative action, subject to impeachment by the legislature which is subject to
recall by the people.[Note 28]
In some reflexive hierarchies a form of circuitous self-amendment is
sometimes possible. Stated broadly, the power to make statutes, for example, has
some limited authority to amend the powers that can amend statutes. A legislature
can overrule a court's interpretation of one of its statutes. It can actually disband,
limit the jurisdiction, or impeach the members of most courts within its jurisdiction.
While it cannot reverse a court's interpretation of the constitution or a court's
decision to strike down a statute on constitutional grounds, it can avenge and deter
Moreover, in the federal and most state systems, the constitutional AC is
supplemented by statutes that govern the incidental processes of amendment.
These statutes give legislatures slightly more control over the constitutional basis of
the power to make statutes, which supplements their control over the statutory and
common law rules governing that power. In a similar vein, if an AC requires the
legislature to call a constitutional convention when a petition of a certain type is
received, then despite the mandatory constitutional language it has an operational
discretion to refuse, knowing that courts will not order it to take action. This happened in Iowa in 1920 (see Appendix 2). It may also have happened at the federal level in 1929. The federal AC requires Congress to call a convention "on the application of the legislatures of two thirds of the several states" (Article V).
The AC is silent on such questions as whether the applications must call for a
particular amendment to the constitution or, if so, whether it must be the same type
of amendment in each application (balance the budget, ban abortion, etc.), and
whether the applications must occur within a certain span of time. Nor has
Congress yet answered these questions with supplementary legislation. Two-thirds
of the state legislatures had applied to Congress by 1929, requesting a convention,
although not all requested the same type of amendment and three of the applications
dated back to 1788 (Virginia), 1789 (New York), and 1833 (Alabama).[Note
29] Congress did nothing, even after Wisconsin, the last state needed for
the two-thirds supermajority, summarized the history of applications and reminded
Congress of its duty under Article V.[Note
The power to make statutes may attempt to augment itself in a way that is
impermissible under the constitution, namely, by statute. The power to adjudicate
may strike down the offending statute. And the legislature may deprive the courts
of jurisdiction over the question and try again. In that way a genuine change in
legislative power would have been brought about by legislation, despite a
constitutional obstacle that prevented direct self-amendment (for self-augmentation)
of the legislative power. Whether such a change is "actually" illegal is a question
that can only be answered if one finds it meaningful. Many jurists, typically just
those most likely to affirm Hart's acceptance theory, would find it meaningless to
speak of the legality or illegality of an act beyond any court's jurisdiction, especially
one acquiesced in by the people and officials of the system. Indeed, the Iowa
legislature in 1920 and Congress in 1929 undoubtedly got away with their inaction
not only because courts will not order legislatures to act, but also because the
people tolerated the inaction. Clear language of the constitution may have been
violated or evaded, but illegality is much more than the abstract fact of
disagreement between conduct and prescriptive language, just as inconsistency in
law is more than the abstract disagreement of two legal rules. Illegality may exist
only when determined to exist by an institution under a grant of authority to decide
such questions. If a tree is felled in the King's forest and no court has jurisdiction to
hear the action, does the King's prosecutor have a sound basis to claim illegality?
1. See State ex rel.
William T. Thompson v. Winnett, 78 Neb. 379, 110 N.W. 1113, 10 L.R.A.(n.s.)
149 (1907), West v. State, 50 Fla. 154, 39 So. 412 (1905), Constitutional
Prohibitory Amendment, 24 Kan. 700 (1881), and Green v. Weller, 32 Miss. 650
2. John Alexander Jameson,
A Treatise on Constitutional Conventions: Their History, Powers, and Modes of
Proceeding, Callaghan and Co., 4th ed., 1887, at p. 559. [Resume]
3. Henry Rottschaefer,
Handbook of American Constitutional Law, West Pub. Co., 1939, at p. 8. [Resume]
4. Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, 967-68 (1912):
The people have a right to amend their Constitution, and they also
have a right to require amendments to be agreed to and submitted
for adoption in the manner prescribed by the existing
Constitution, which is the fundamental law. If essential
mandatory provisions of the organic law are ignored in amending
the Constitution of the State, and vital elements of a valid
amendment are omitted, it violates the right of the people of the
state to government regulated by law. [Resume]
5. Until 1982 the
constitution of Canada had no AC that Canadians could use themselves; they had
to petition the British Parliament to act, if it would, on their suggestion.
Apart from the question of sovereignty raised by the omission of a "patriated"
amendment power, formal amendment for Canadians was simply more difficult than
it has ever been for Americans. Hence Canadians relied even more than
Americans have on "unofficial" methods of amendment. One such amendment is
well-treated by J.R. Mallory, "Amending the Constitution by Stealth," Queen's
Quarterly, 82 (1979) 394-401. [Resume]
6. See 158 A.L.R. 512. [Resume]
7. In Section 7.B I quoted
Hart to the effect that contracts and treaties bind only if made within a
system containing a rule which says that they bind. This may be called the irreflexive view of contract: some extrinsic rule is needed to make the intrinsic elements of a contract binding between the parties. On the other hand, the reflexive view of contracts holds that mutual promises (perhaps with consideration, intent to be bound, etc.) bind the parties without any extrinsic rule, not only morally but in law; contracts create law ex proprio vigore or by their own strength. Those who hold that the very premises of a legal system can be erected by contract must also hold, at least for that primordial covenant, the reflexive view of contract. [Resume]
8. See Appendix 2. The
Pennsylvania and Hawaii amendments merely renumbered the AC. The Minnesota
amendment renumbered and reworded the AC but without intending to change it
substantively. The North Dakota amendment merely rearranged the articles of
the constitution, though with one effect that a court might find significant:
the AC was put in the article on legislative power. North Dakota is now the
only state in the country that "classifies" its amendment power in effect as a
legislative power. The classification could influence future court decisions
on the applicability of normal parliamentary procedures to amendment
deliberations, the permissibility of "legislative" amendments, and the
permissibility of an executive veto, to name just three. [Resume]
9. More examples of the
general problem of "more" of a quantity contradicting and neutralizing the
original quantity are collected in Section 20.L. [Resume]
10. The question arises
when federal and state criminal statutes punish the same behavior but provide
different maximum penalties. In the United States federal law is "supreme"
and takes priority, usually by tests for inconsistency. The Australian
federal (or commonwealth) statutes are made supreme by Section 109 of the
Australian Constitution, which states,
When a law of a State is inconsistent with a law of the
Commonwealth, the latter shall prevail, and the former shall to
the extent of the inconsistency be invalid.
Four excellent discussions of the tests of inconsistency that have developed
under Section 109 are Howard Zelling, "Inconsistency Between Commonwealth and
State Laws," Australian Law Review, 22 (1948) 45-51; Ilmar Tammelo, "Tests of
Inconsistency Between Commonwealth and State Laws," Australian Law Journal, 30
(1957) 496-501; Allan Murray-Jones, "The Tests for Inconsistency Under Section
109 of the Constitution," Federal Law Review, 10 (1979) 25-52; and Gary R.
Rumble, "The Nature of Inconsistency Under Section 109 of the Constitution,"
ibid., 11 (1980) 136-37. [Resume]
11. Georg Henrik von
Wright, Norm and Action, London, 1963, pp. 136-37. [Resume]
12. Alf Ross, Directives
and Norms, London, 1968. [Resume]
13. For the view that
modal logic, which underlies deontic logic, is far too immature and unsettled
to solve the paradox of omnipotence, see P.T. Geach, "Omnipotence,"
Philosophy, 48 (1973) 7-20 at pp. 10-11. For a fragment of non-formal,
historicized modal logic specially adapted to the paradox of omnipotence as it
arises in law, see Section 21.C. [Resume]
14. Lon Fuller, The
Morality of Law, Yale University Press, 1964 at p. 65. [Resume]
15. A good example is
Ricardo Alberto Carracciolo, "Contradiction in the Legal System," Archiv für
Rechts- und Sozialphilosophie, 64 (1979) 457-73. Carracciolo concludes, like
Ross, that contradictions between laws prove that at least one of the
contradictories is not valid law. See pp. 466ff; also see von Wright, op.
cit. at pp. 203ff; Hans Kelsen, General Theory of Law and the State, Russell
and Russell, 1961, at pp. 374-75. [Resume]
16. Fuller, op. cit.
Tammelo has probably done the most to apply and adapt modern logic to law.
See his Outlines of Modern Legal Logic, Wiesbaden: Franz Steiner Verlag, 1969;
Modern Logic in the Service of Law, Vienna: Springer Verlag, 1978; and of
course, "The Antinomy of Parliamentary Sovereignty," Archiv für Rechts- und
Sozialphilosophie, 44 (1958) 495-513; see also note 10 above. Dennis Lloyd,
"Reason and Logic in the Common Law," Law Quarterly Review, 64 (1948) 468-84.
A.G. Guest, "Logic in the Law," in A.G. Guest (ed.), Oxford Essays in
Jurisprudence, A Collaborative Work, Oxford University Press, 1961, pp.
See also David Daube, "Greek and Roman Reflections on Impossible Laws,"
Natural Law Forum, 12 (1967) 1-84; Walter Wheeler Cook, The Logical and Legal
Bases of the Conflict of Laws, Harvard University Press, 1942; John Dewey,
"Logical Method and Law," Cornell Law Quarterly, 10 (1924) 17-27; Max Radin,
Law as Logic and Experience, Archon Books, 1971; Edward Levi, Introduction to
Legal Reasoning, University of Chicago Press, 1963; Joseph Horovitz, Law and
Logic: A Critical Account of Legal Argument, Springer Verlag, 1972; Jovan
Brkic, "Consistency, Completeness and Decidability with Respect to the Logic
of Law and the Provability of Juristic Arguments," Archiv für Rechts- und
Sozialphilosophie, 59 (1973) 473-97; Januchi Aomi, "The Regulative Function of
Logic in Legal Decisions," Archiv für Rechts- und Sozialphilosophie, 59 (1973)
17. Murray-Jones, op. cit.
In almost all cases I have changed the wording used by Murray-Jones. [Resume]
18. The deontic test may
rely on two alternative theories: (1) that whatever is not forbidden is
permitted, or (2) that only what is specifically permitted is permitted (or
that whatever is not permitted is forbidden). The former view was embodied in
the notation and equivalencies introduced in the text early in Section 12.C.
For a defense of the latter as the correct legal position, see Ronald Moore,
"Legal Permission," Archiv für Rechts- und Sozialphilosophie, 59 (1973)
19. Fuller, op. cit. at p.
66. Eduardo Garcia Maynez asks the same question, and is more willing to
answer that the situation described amounts to a contradiction, in "Some
Considerations on the Problem of Antinomies in the Law," Archiv für Rechts-
und Sozialphilosophie, 49, 1 (1963) 1-14, at p. 2. [Resume]
20. See his illuminating
discussion of U.S. v. Cardiff, 344 U.S. 174 (1952) in which a section of the
Food, Drug, and Cosmetic Act seemed to give inspectors the right to enter
factories without the owner's consent, and to give the owners the right to
keep inspectors out by refusing consent. Fuller op. cit. at pp. 67-68. The
Supreme Court chose a less "logical" resolution of the problem, but one that
better fulfilled legislative purposes and public policy. It also held that
the very appearance of inconsistency denied factory owners sufficient notice
of what had been criminalized. When two different laws are "inconsistent",
Fuller believes that judicial reconciliation stops at a point chosen by
policy, for mere logic provides no stopping point short of "the perilous
adventure of attempting to remake the entire body of our statutory law into a
more coherent whole." Ibid. at p. 69. [Resume]
21. The best defense of
the position that any intent-based interpretation requires appeal to policy or
political morality is Ronald Dworkin, "The Forum of Principle," New York Law
Review, 56 (1981) 469-518. [Resume]
22. Murray-Jones, op. cit.
at pp. 41-42. [Resume]
23. Fuller, op. cit. at p.
24. Caracciolo, op. cit.
at p. 462, confuses the plurality and discretionary character of legal tests
of inconsistency with the proposition that there is no legal test at all, but
draws the same conclusion that I do:
such a criterion [of inconsistency in law] does not exist, so that
we cannot exclude the possibility that two rules may be incompatible
for a judge, and may not be for another.
While I conclude that the choice among criteria of inconsistency, and the
choice whether to allow inconsistent rules simultaneous validity, is a policy
question, Caracciolo concludes that such choices "cannot be based on 'law'."
25. That is, they are on
the same hierarchical level if the change from the old to the new AC was
actually authorized by the old AC. Alf Ross believes that only a higher,
prior rule can authorize the change of any rule; but even for him
self-amendment is ex hypothesi the change of a law in which premises and
conclusion lie on the same hierarchical level. This very feature is one of
his grounds for claiming that self-amendment is impossible. [Resume]
26. Hart in
"Self-Referring Laws," Festskrift Tillägnad Karl Olivecrona, Stockholm: Kungl.
Boktryckeriet, P.A. Norstedt & Söner, 1964, pp. 307-16, at 314, seems to
appeal to the authorization fallacy as one of his several arguments that
self-amendment is permissible. [Resume]
27. Hans Kelsen suggests
the answer is no in his essay, "Derogation," in Ralph A. Newman (ed.), Essays in Jurisprudence in Honor of Roscoe Pound, Bobbs-Merrill, 1962, pp. 339-55, at 353.
Note that a given proposition may be combined with different co-premises to permit the valid derivation of inconsistent conclusions. If rule P is a general rule of change, it may be supplemented for conclusion Q with the premise stating the motion to adopt Q, and for ~ Q with a motion to adopt ~ Q. "All and only humans are mortal" is consistent with "Socrates is mortal" and "Socrates is immortal" depending on whether we supplement the major premise with "Socrates is a human" or with "Socrates is not human". For this reason we say only that the set of premises that justifies Q, if the set is internally consistent, must be inconsistent with ~ Q. [Resume]
28. No work that I know of
treats the American legal system as a reflexive hierarchy. But the checks and
balances system is essentially reflexive, and has of course been the subject
of innumerable discussions. For some surprising wrinkles in the circle of
powers in the U.S. system, see Walter F. Murphy, "Lower Court Checks on
Supreme Court Power," American Political Science Review, 53 (1959) 1017-31.
For more on reflexive hierarchies see below, Section 21.D. [Resume]
29. James R. Murtagh,
"Procedure for Amending the Constitution and the Reed-Walter Amendment,"
Pennsylvania Bar Quarterly, 27 (1955) 90-101, at p. 93.n.4. See also Lester
Bernhardt Orfield, The Amending of the Federal Constitution, University of
Michigan Press, 1942, at p. 43. [Resume]
30. Murtagh, op. cit. The
insufficiency of Wisconsin's arguments are anticipated by Walter K. Tuller, "A
Convention to Amend the Constitution —Why Needed— How It May Be Obtained,"
North American Review, 193 (1911) 369-87. [Resume]