
Gödel’s Loophole in the US constitution - simonpure
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2010183
======
ewoodrich
To be honest, I don't really see how this is a "loophole". The amendment
process was intended to allow the Constitution to remain a living document,
and balance longevity with future flexibility. I don't think the framers would
have been at all surprised that it is possible to effectively dismantle the
Constitution or the Union entirely through amendments. If this were not
intended, why weren't additional restrictions placed on the scope of
amendments? As it stands, Article V places the following limits:

 _"... provided that no amendment which may be made prior to the year one
thousand eight hundred and eight shall in any manner affect the first and
fourth clauses in the ninth section of the first article; and that no state,
without its consent, shall be deprived of its equal suffrage in the Senate."_

Unless I'm misunderstanding some part of this paper, this seems more like a
feature, than a bug. It also reflects practical realities: if a legislature
overwhelmingly supports a change, any roadblocks or restrictions will most
likely be ineffective in the long term.

~~~
tanzam75
> _It also reflects practical realities: if a legislature overwhelmingly
> supports a change, any roadblocks or restrictions will most likely be
> ineffective in the long term._

Exactly. In the worst case, if an obstructionist minority of states were to
block an overwhelmingly popular and desperately needed amendment, a
sufficiently large number of states could simply write a new Constitution.
After all, that's exactly how the current U.S. Constitution got put into
place.

The Articles of Confederation could only be amended by unanimous vote of all
13 states. And of course, they needed unanimity to amend the unanimity clause.
So it was an amendment clause without loopholes.

But only 12 states showed up at the Constitutional Convention! Unanimity was
obviously not going to happen.

So the delegates wrote a new Constitution anyway, and specified a ratification
threshold of 9 states. Once this threshold had been reached, the other 4
states could have fun governing their rump country under the old Articles. But
the ratifying states would be in a customs union and have a strong central
government, and they could make do just fine without the holdouts.

In the end, only two states held out. Eventually, both gave in. North Carolina
didn't even last a year on its own. Rhode Island lasted 15 months.

The same people who pulled off this stunt also wrote the Constitution. So they
were well-aware that a watertight amendment process was no bar to the truly
determined. Might as well leave it leaky.

~~~
stcredzero
_Exactly. In the worst case, if an obstructionist minority of states were to
block an overwhelmingly popular and desperately needed amendment, a
sufficiently large number of states could simply write a new Constitution.
After all, that 's exactly how the current U.S. Constitution got put into
place._

Hopefully this doesn't result in another civil war over the issue of gun
control. (The current stance seems to be to allow individual states great
latitude in how they interpret the 2nd amendment.)

~~~
stcredzero
Great. Another knee-jerk downvote on a comment that is neither for nor
against.

------
sootzoo
Reminds me of Nomic[1], a thought experiment which appears in an appendix to
Peter Suber's excellent book, "The Paradox of Self-Amendment" [2]. Choice
quote from the introduction to Nomic:

    
    
       If law-making is a game, then it is a game in which changing the rules is a move.
    

[1]
[http://dash.harvard.edu/bitstream/handle/1/10288408/Peter%20...](http://dash.harvard.edu/bitstream/handle/1/10288408/Peter%20Suber%2c%20%20Nomic%20.html?sequence=1)

[2]
[http://dash.harvard.edu/handle/1/10243418](http://dash.harvard.edu/handle/1/10243418)

~~~
lisper
People actually play this game:

[http://en.wikipedia.org/wiki/Nomic#Online_play](http://en.wikipedia.org/wiki/Nomic#Online_play)

[http://agoranomic.org/](http://agoranomic.org/)

~~~
dalke
Less generically, I've played the game, using the rules straight from
Hofstader's book.

------
gpcz
I believe the Founding Fathers were aware of this loophole, since Mrs. Powel
of Philadelphia asked Benjamin Franklin, "Well, Doctor, what have we got, a
republic or a monarchy?" With no hesitation whatsoever, Franklin responded, "A
republic, if you can keep it" [1]. Having a just government requires constant
vigilance.

[1]: [http://quotes.liberty-
tree.ca/quote_blog/Benjamin.Franklin.Q...](http://quotes.liberty-
tree.ca/quote_blog/Benjamin.Franklin.Quote.21EA)

------
mcenedella
Perhaps most likely is that the Constitutional Convention, in eyes of some
anti-Federalists, did not have the legal authority to convene and propose a
new Constitution.

As the National Archives describes: “Some continued to argue that the
delegates in Philadelphia had exceeded their congressional authority by
replacing the Articles of Confederation with an illegal new document.” [1]

Because (i)the Articles of Confederation required a unanimous vote to alter
it, (ii) the Constitutional Convention was only empowered to propose
alterations to the Articles and (iii) the Constitution, as adopted, broke the
“unanimous vote required for alterations” rule, these anti-Federalists, and
perhaps Gödel, felt the US Constitution was not established on firm legal
footing. [2, 3, 4]

The obvious answer — that the government derives its just consent from the
governed, and should they choose to alter it, accept it in democratic votes in
each of the states, and abide by it, it becomes both de jury and de facto law
— is the superior one, IMHO.

[1] [http://www.archives.gov/education/lessons/constitution-
day/r...](http://www.archives.gov/education/lessons/constitution-
day/ratification.html)

[2]
[http://www.usconstitution.net/constfaq_q91.html](http://www.usconstitution.net/constfaq_q91.html)

[3]
[http://en.wikipedia.org/wiki/Timeline_of_drafting_and_ratifi...](http://en.wikipedia.org/wiki/Timeline_of_drafting_and_ratification_of_the_United_States_Constitution)

[4] [http://en.wikipedia.org/wiki/Anti-
Federalism](http://en.wikipedia.org/wiki/Anti-Federalism)

~~~
PhantomGremlin
Not sure why someone downvoted you.

You raised a very interesting meta-question. Not that it's of any practical
significance 200 years later, but the Articles of Confederation are very much
an important part of US history.

------
skywhopper
The main flaw in this argument is the assumption that governmental systems can
or ought to be reduced to logic puzzles. The real world doesn't operate on a
mathematical plane. The Constitution is only meaningful so long as sufficient
members of the government and the citizenry accept it as an authority and
share a somewhat similar understanding of its implications.

If the government goes off track from the Constitution with the willingness of
the populace there's nothing in the Constitution or the world that can stop
it.

Consider the birth of the Constitution itself: there was no mandate for an
entirely new baseline document to replace the Articles of Confederation. But
one was created and the states adopted it. It came into power because the
citizens of the United States gave it power. That's the only way governments
are formed and changed. The founders of the US understood that very well.

------
zrail
I don't think it's anything to really worry about. Congress has sent thirty
three amendments to the states in a period of 225 years. There have been over
11,000 proposals in that same time period[1].

Theoretically possible, sure. Fascinating, absolutely. Likely? Not really.

[1]:
[http://en.wikipedia.org/wiki/List_of_amendments_to_the_Unite...](http://en.wikipedia.org/wiki/List_of_amendments_to_the_United_States_Constitution)

~~~
sgtpepper
The constant eroding of the State's sovereignty and the consolidation of power
into the Federal Government's hands make this somewhat more troubling in the
future however. Especially as we move towards more pure democratic systems and
away from representative republicism. See for instance the National Popular
Vote Compact:
[http://en.wikipedia.org/wiki/National_Popular_Vote_Interstat...](http://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact)

A similar compact for approving amendments could be an issue for instance.

~~~
chetanahuja
I'm curious as to how making the presidential election decided by popular
national vote has an effect of "eroding State's sovereignty"? As I see it, a
national election decided by a national vote is the most natural thing in the
world. The only effect of arcane (and frankly, absurd) electoral college
system is to put disproportionate power in the hand of _some_ of the states at
the expense of other states.

~~~
baddox
The electoral college (and similarly, the now defunct election of US senators
by state legislatures) only seems unnatural in the context of what states have
become. They're no longer sovereign states with a central federal government
that takes care of a very important but limited set of things. They're now
closer to administrative districts in many respects.

 _edit:_ I mixed up my EU facts below. The European Parliament is filled by
direct election. It's the Council that is elected by the executive branches of
member states, and is thus more analogous to the US Senate before switching to
direct election. The EU is complicated for my American brain to keep straight!
I still might have some of this wrong.

Compare the electoral college to the European Parliamentary elections, which
are decided not by all EU citizens but by the Council, or the President of the
European Convention, who is elected by the European Parliament.

~~~
chetanahuja
_They 're no longer sovereign states with a central federal government that
takes care of a very important but limited set of things. They're now closer
to administrative districts in many respects._

In other words, they are _states_ \-- as opposed to nations (as per your EU
example).

------
PhantomGremlin
I've only read the abstract. I feel no need to read the entire 37 page paper.
This topic might be interesting to a philosopher, but I don't think it has any
practical significance.

We had a flurry of amendments to the US constitution back in the 1960s. Since
then, in 1971 we gave 18 year olds the right to vote. There was only one other
amendment since then, in 1992, and it was "housekeeping". It delayed salary
changes for legislators until after the next election.

I'm old enough to remember the contentious proposed Equal Rights Amendment.
[1] It kicked around for years in the 1970s but was never ratified.

Since then, nothing. And, given the political climate in the USA (the "red
state" vs "blue state" dichotomy) it's unlikely that any new amendment would
pass anytime soon, unless it was necessary to solve a very very critical
problem. It's hard to believe that an amendment to change Article V would ever
pass both houses of Congress then get ratified by 38 states.

Not. Gonna. Happen.

[1]
[http://en.wikipedia.org/wiki/Equal_Rights_Amendment](http://en.wikipedia.org/wiki/Equal_Rights_Amendment)

~~~
dalke
Not even the balanced budget amendment? Michigan just voted for it, via a new
constitutional convention, making it either the 23rd or 34th state to do so.
See [http://www.mlive.com/lansing-
news/index.ssf/2014/04/accident...](http://www.mlive.com/lansing-
news/index.ssf/2014/04/accidental_history_how_michiga.html) .

~~~
PhantomGremlin
You're right. That would be "interesting". Perhaps even "May you live in
interesting times".[1]

It's definitely a wildcard.

The last time it was "threatened" is over 100 years ago. According to Wiki,
Congress then passed [2] the 17th amendment:

    
    
       for fear that such a convention—if permitted
       to assemble—might stray to include issues above
       and beyond just the direct election of U.S. Senators
    

It's sad that each and every state has to maintain at least the pretense of a
balanced budget, and yet the Federal government is utterly incapable of doing
so. I wonder how different things might be if the 17th amendment never was
ratified, if each state's Senators were still directly appointed by each state
legislature? Would the states be able to more effectively check the growth of
Federal power?

[1]
[http://en.wikipedia.org/wiki/May_you_live_in_interesting_tim...](http://en.wikipedia.org/wiki/May_you_live_in_interesting_times)
[2]
[http://en.wikipedia.org/wiki/Article_Five_of_the_United_Stat...](http://en.wikipedia.org/wiki/Article_Five_of_the_United_States_Constitution)

------
murbard2
The article attempts to list various reasons why Einstein and Morgensten
showed no interest in the flaw. I'll propose a fifth:

\- Einstein & Morgensten understood that the constitution is enforced by a set
of institutions, beliefs, incentives and interpretations, not by an
algorithmic execution of its rules. As such, Godel's point was irrelevant: of
course the constitution didn't preclude the US from becoming a de facto
dictatorship, and Godel's loophole would probably not be the practical way to
go about it.

In the context of politics, it's a curiosity.

~~~
murbard2
Everyone's favorite actual loophole is of course the commerce clause butterfly
effect.

"The flap of the wing of a butterfly affects interstate commerce, therefore it
can be regulated by the federal government"

------
djscram
Only read the abstract, but Godel's work is pretty well known. He was not
interested in showing a "flaw" in the Constitution, but in showing the logical
systems of sufficient complexity are ALL either incomplete or or inconsistent.
The Constitution is only an example. There aren't any political implications
to this at all.

------
jrochkind1
Is this a joke?

------
MarkPNeyer
a single inconsistency in a formal logical system means you can prove
anything. if both A and !A are true, then you can prove anything you wish via
contradiction.

assume !B.

A & !A - which is a contradiction.

therefore, our assumption was wrong, and thus B is true.

this means a single contradiction in a legal system renders the whole thing
meaningless. everything becomes both legal and illegal at the same time.

a single semicolon can break an entire program because the program _must_ be
consistent. that doesn't happen in the law because you have a judge who, at
some point, will get pissed off at you. it doesn't matter if two conflicting
rules - one dealing with the importing of flowers, and the other dealing with
navigating riverways - are in conflict with each other. the judge isn't going
to accept that as an argument for why you should be allowed to jaywalk - even
if a technically correct interpretation of the law would say you should.

all of this is to say that the claim 'we have a nation of laws, not a nation
of men' is entirely fatuous. it's just not true. we have a nation of men
interpreting rules that are in a very convoluted language, designed to be
'unambiguous' \- and yet still vague enough for an education person to find
and exploit this ambiguity.

anyone reasonable would agree with me. if you disagree, you probably think
'reasonable cause' is reasonably clear.

~~~
erehweb
The philosopher Wittengstein has something to say about this, in part of a
discussion of formal logic. He says contradictions are not as bad as you might
think.

"Or suppose that there is a contradiction in the statutes of a particular
country. There might be a statute that on feast days the vice-president had to
sit next to the president, and another statute that he had to sit between two
ladies. This contradiction may remain unnoticed for some time, if he is
constantly ill on feast-days. But one day a feast comes and he is not ill.
Then what do we do? I may say 'We must get rid of this contradiction.' All
right, but does that vitiate what we did before? Not at all. [...] When a
contradiction appears, then there is time to eliminate it. We may even put a
ring round the second rule and say 'This is obsolete.'"

~~~
simonh
Clearly the sensible way to resolve this is to ensure that the president is
always a lady.

