Variations on the Theme
Introduction to Part Two
Peter Suber, Paradox of Self-Amendment Table of Contents
- A. The exclusivity of the federal AC
- B. Indirect self-amendment
- C. Self-amendment without inconsistency
- D. Self-amendment of a non-supreme rule of change
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 process.
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 revolution.
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 impliedly reserved.
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 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, 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 original AC.
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, though they do 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:
Op = p is obligatory O ~ p = refrainment from p is obligatory Pp = p is permissible P ~ p = refrainment from p is permissible
Let us take these equations as fundamental axioms:
Op = ~ P ~ p O ~ p = ~ Pp Pp = ~ O ~ p P ~ p = ~ Op
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 16]
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 "compliance" test);
- 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 22]
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 absurdum.
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 such decisions.
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 30]
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 (1856). [Resume]
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. 176-97.
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) 193-96. [Resume]
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) 327-46. [Resume]
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. 69. [Resume]
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'." Ibid. [Resume]
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]
This file is one section of the book, The Paradox of Self-Amendment. Return to the Table of Contents.
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