Peter Suber, Paradox of Self-Amendment, Section 13

Section 13
The See-Saw Method Peter Suber, Paradox of Self-Amendment Table of Contents
Self-amendment may loosely be said to occur whenever an AC has been applied to itself. As suggested in Section 2, for some purposes it would not be illegitimate to speak of self-amendment when an AC was applied to any section of the constitution, for any amendment might be thought to use the constitution's supremacy against itself. But the paradox is sharpest, and by properly rigorous standards perhaps only exists, when the very same section or clause or method is used to change itself, directly or indirectly. If AC §1 describes a complete method of amendment and AC §2 describes another, then no paradox arises when AC §1 is used to amend AC §2 or vice versa. Because both rules belong to an article called "the amendment clause", we might say that "self-amendment" has occurred, but that would mistake form for substance.
The application of one section of an AC to another section does not interest us as a form of self-amendment. However, as as a method of amending the AC without strict self-application, it is very interesting indeed. As we left things in Section 4.A.2, the application of one method of amendment to another, and then vice versa, is the "see-saw" method of amendment. Clearly it can change an AC that originally contains at least two methods of amendments to a form in which all original methods have been changed, without any strict self-amendment, for the application of AC §1 to AC §2 is irreflexive. The tantalizing possibility, left unexplored in Section 4, is whether any AC with any original content could become an AC of any other content, simply by means of the see-saw method. If so, then self-application will never be necessary, even for radical change of a genuinely exclusive AC. As noted in Section 4, the see-saw method, at best, can permit change of the AC without explaining how most actual ACs have been changed. So let us consciously leave realistic explanation behind and seek the limits of the see-saw method of amending the AC.
If an AC originally has only one method of amendment, then it cannot employ the see-saw method until it uses its one method to add another. Apart from objections to self-amendment, only two obstacles might exist to the addition of a new method of amendment. The first is a general prohibition of amendment by addition, derived from a supposed implied limitation on the AC that all amendments must be "germane" —i.e. must address existing sections and alter them. Such claims have actually been made, based on an overly literalistic reading of the word "amendment" that excludes both addition and repeal. These claims have uniformly been rejected by courts. See e.g. State of Ohio v. Cox, 257 F. 334, 342 (S.D. Ohio 1919).
The second obstacle is that amendment by addition, or the specific addition sought, might be barred by an express limitation in the form of an entrenchment or self-entrenchment clause. In Sections 8 and 9 I laid the groundwork for the conclusion in Section 11.B that an AC cannot irrevocably be limited by entrenchment, except for the (perhaps tacit) entrenchment of its immutable character as a continuing omnipotence. All limitations that purport to be irrevocable or immutable are, under the acceptance model, subject to future contingencies such as the next generation's attempted repeal of the limitation, which might be accepted as valid by the people and officials of that generation.
I will assume in this section that an AC can add any clause to the constitution of which it is a part, including new and exotic methods of amendment. I will also assume that whatever power an AC possesses to repeal limitations on its power is held, a fortiori, by the AC attempting self-change by the see-saw method. If the most difficult case is the self-entrenchment of the AC itself, then the see-saw method might even succeed where ordinary self-amendment might fail. If AC §1 concentrically and completely entrenches the AC, forbidding all amendment of it, then ordinary disentrenchment requires the prisoner to open the outer door first. But disentrenchment by the see-saw method allows the methods of the AC to operate on one another from within the prison, and open the inner door first. Disentrenchment by the see-saw method, however, might be easier for the people and officials of a system actually to accept.
I will refer to the methods of amendment within the AC as A, B, C, and so on. Each method might be the product of several different rules and sections of the AC. For example, method A and method B might share a procedure of proposal and differ in the procedure of ratification. The various methods, then, are subject to piecemeal amendment as their component procedures are altered by other procedures. There might, then, be see-saws within see-saws. But the inner articulation of each method of amendment may be ignored here; considering them may be essential to fine-tune the process from one AC to another, but it only complicates the question whether any content whatsoever can be attained from every initial set of amendment methods.
If a given AC only contains method A, then it may add method B or any set of extra methods. The inquiry would apparently be at an end, and the answer be affirmative, if A is itself an omnipotent method of amendment or could add one. If B is a method of continuing omnipotence, then by our assumptions nothing bars A from adding it by amendment to the AC. Then, of course, B could make any change in A. While this is a short-cut to a very wide range of possible ACs, it may not suffice to attain every content. If the AC contains a method of continuing omnipotence, then one content it might find out of reach is that of an AC of merely finite power or the limiting case of "null content" —utter self-repeal.
By my general arguments in Sections 8 and 9, an AC of continuing omnipotence contains an "immutable" self-limitation against further limitations. If B is that method, then there are great difficulties in the path if B is to disentrench itself and then make itself finite in power or repeal itself. But all limitations that purport to be immutable can be repealed, contingently, if acceptance subsequently shifts in the right direction. Method B could in principle, that is, contingently, disentrench and repeal itself. But that is self-application, not the see-saw method. If A were not itself omnipotent, then it might not be able to disentrench and repeal B (though this will be examined). But it could add C, also of continuing omnipotence and containing explicit, specific language giving it priority over B. Then C may disentrench and repeal B. This works to eliminate B (again, only under the acceptance model) but an "immutably" entrenched, omnipotent method remains in C.
Adding a method with self-embracing omnipotence would solve all problems if it were a coherent idea. However I stand by my arguments in Section 11.B that it is not, at least for the inference and acceptance models of legal change and validity. In any case the possibility may be eliminated for sport, since it would undoubtedly allow any AC to reach any content.
If one has taken the short-cut of adding a method of continuing omnipotence, B, and then used it to put the other methods into desired shape, then one is stuck if one then desires to leave the entire AC finite in power. The method of adding an omnipotent, specially armed assassin will never accomplish its goal without an infinite regress of assassins of assassins. Still, there are a few paths out. If one is willing to await and risk future contingencies, then B might repeal itself, Alf Ross and formal logic notwithstanding. Or it might institute a rule of desuetude and later fall to it. But no strategy that requires future contingencies can guarantee the desired result.
One possibility is that B could be repealed by C when C is not itself omnipotent. If A adds C carefully, and C has the ordinary competence to repeal clauses of the constitution, then C could repeal B without itself being omnipotent; even under the inference model, there is no requirement that the rule of change be "more powerful" than its prey, insofar as power is distinct from hierarchical priority. Under the acceptance theory, there is no requirement that a rule of change be prior to, or higher than, its prey. If finite A can add omnipotent B, the apotheosis of the AC, then finite C could repeal B, the Götterdämmerung.
Method B has continuing omnipotence; therefore its continuing character purports to be immutable. Under the acceptance model, if any rule of change can disentrench and amend an immutable rule, or transmute an immutable rule into a mutable one, then a finite rule of change can do so. Omnipotence need not be arrayed against immutability, for the outcome does not require the infinite power of formal validity, only the actual acceptance of the people and officials. To put it another way, the omnipotence needed to undo immutability need not lie in the legal power as formally described in legal terms if it lies in the acceptance of the people and officials who intend to use that power to undo immutability.
Another reason is that some immutable rules are made immutable by entrenchment, not self-entrenchment; and even if an entrenchment clause is complete, it is itself mutable and repealable so long as it is not itself entrenched. There is nothing inherent in the idea of continuing omnipotence that requires us to think that its continuing character is self-entrenched rather than irreflexively entrenched. The continuing character must be entrenched against the continuing power, but that can be accomplished by irreflexive entrenchment. If continuing omnipotence is made continuing by irreflexive entrenchment, then it cannot directly limit itself, but it can repeal the (perhaps tacit) entrenchment of its continuing character and then limit itself. However, as noted in Section 11.B, even without an immutable continuing character, no AC can be thought to limit itself irrevocably. But if B, a method of continuing omnipotence, is made continuing by irreflexive entrenchment, then A, B, C, or any other method can repeal B's entrenchment clause and then repeal B.
Any strategy that requires transmutation or the repeal of a limitation that purports to be immutable is to that extent impossible under the inference model. If such a strategy depends on the acceptance model, then it relies on future contingencies. If it relies on the procedural model, then it need not rely on future contingencies, shifts of acceptance, or invalid inferences. Therefore, if one is uncomfortable pinning the success of the see-saw method on contingencies, then the procedural model may save the technique.
There are other ways to save the technique without resorting to the procedural model or relying on contingencies. Note, however, that one of the purposes of developing the see-saw method was to enable a people to change its AC without self-amendment, and therefore consistently with the inference model. The inference model, it turns out, can be satisfied only if the short-cut through continuing omnipotence is not taken, for the inference model does not tolerate the repeal of immutable rules such as the immutable character of continuing omnipotence. But the acceptance model can tolerate this, and can do so without resort to future contingencies. (However, if we will appeal to the acceptance, we need not resort to the clumsy see-saw method, but may turn straightaway to self-amendment.)
For example, method A may add B with a sunset clause that asserts that B will expire after a certain time. Then B could not be said to possess "continuing omnipotence", strictly speaking, for ab initio its character is mutable and temporary. But there is nothing to prevent B from having omnipotence for a finite time. If it is limited during that time only in its power to repeal or limit itself before its expiration date, then we could even say that B had "continuing omnipotence" for a finite time. Its continuing character would be defined after, and relative to, its expiration date, so that even for the inference model there is no "creation of Frankenstein" with a power to overwhelm its creator. Use of B under these circumstances would resemble algebraic manipulation with the square root of negative one, which is an impossible quantity that drops out before the final product is determined, facilitating a process that might otherwise be impossible.
Similarly, the sunset clause governing B need not repeal B but merely change it into a finite, mutable amending power at the expiration date. Then the sunset clause would resemble an incomplete more than a complete entrenchment clause.
If A is not capable of apotheosis, or of adding an omnipotent B, or if the short-cut through omnipotence is simply avoided, for sport or logic, then the possibility that any AC could reach any content is probably indemonstrable and irrefutable. If the limitation on A is "hereditary" and applies to every method added by A, then some limitations might never be overcome by the see-saw method except through future contingent shifts of acceptance. One important hereditary characteristic for the inference model is consistency with the premises or axioms (provided they are consistent with one another). This "genotype" would prevent any amendment or repeal of any immutable rule, or possibly (as noted in Section 12.C ) any substantial change at all. The acceptance and procedural models allow valid "mutation" at every generation, in principle, affecting every limitation on the rule of change and thereby every limitation on every rule of law.
Because the short-cut through omnipotence can be made to work, through the procedural model or through sunset clauses and the acceptance model, we may feel free to take up the promise of Section 4 and use irreflexive methods of transforming an AC if self-amendment is found to be impermissible or impossible. However, the use of such irreflexive methods should not be taken to be permissible under the inference model just because they are not reflexive; the inference model forbids both types. Here's why.
The methods of amendment used in the see-saw method, because (or when) they are all parts of the AC, are co-supreme. The inference model in one of its stricter forms would not tolerate the amendment of A by B, even if no immutable rules were thereby transmuted or amended, for a change can only be authorized by a prior, higher rule. This might be avoided if B were put below A by the terms of its addition to the AC. But then, of course, it could not amend A and the see-saw could never get rocking. The incorporation of the theory of types into the inference model is optional. But Ross incorporates it and therefore cannot permit any type of see-saw. Any see-saw must either work with equals or with superiors and inferiors; but the theory of types forbids both.
This general criticism would also apply to the six "unofficial" methods of amendment. Whether or not they are co-supreme with one another or with the AC, they could only amend rules below themselves in a theory of types (irreflexive hierarchy). Therefore, the AC is only saved from immutability by the unofficial methods if they are superior to it in an irreflexive hierarchy (as Ross's tacit, transcendent rule is), or if the theory of types is not incorporated into the inference model, or of course if the inference model itself is denied.

This file is one section of the book, The Paradox of Self-Amendment. Return to the Table of Contents.