▲ 131 points
back
130 comments
The law is not a formal system, it's a tool for humans to decide how to act. If those humans decide they want a tyranny, no amount of words on paper could ever stop them.
I am reminded of Matt Levine's column from the day after the 2016 election, concerning legal realism:
> But in the back of my mind I thought about Llewellyn. I thought about the fact that those principles can't automatically enact themselves, that they only work if the human actors in the system choose to follow them and to demand that others follow them. They persist because the people constrained by them believe themselves to be constrained by them. The Constitution, separation of powers, religious liberty, freedom of the press, an independent judiciary, the rule of law, equality of all citizens: There is a complacent sense in America that these things are independent self-operative checks on power. But they aren't. They are checks on power only as far as they command the collective loyalty of those in power; they require a governing class that cares about law and government and American tradition, rather than personal power and revenge. Their magic is fragile, and can disappear if people who don't believe in it gain power.
https://www.bloomberg.com/opinion/articles/2016-11-09/brambl...
It's a bit of both, depending on what those in power need it to be.
I think Gödel's concern was for the people who might not agree with it installing a dictator, but go "well, it's legal and it's what the founding fathers wrote" and therefore go along with it.
Yet we use it to reason about things, so formalizing and finding inconsistencies leaves less space for exploiting it.
Also even though math is backed by a formal system in theory, in practice no one has time to completely verify mathematicians' work bottom-up from axioms (at least until we become better at proof assistants). Ultimately it comes down to intuition and trust, i.e. these people understand the proof, and I trust them, so I think the proposition holds. And similarly in principle a large group of people can decide that they don't trust the axioms (they are arbitrary in a sense, just like laws), yet it formal methods in math are still useful.
Another way around is to water down the parts that displease your interests, or choke them up with insane process without formally violating the constitutional letter.
The Italian constitution is among the most robust and failsafe legal ground truths you can have, yet it’s been made sausages of since day-two
This is why there are checks and balances. The laws and constitutions are not rules in a game that can be exploited arbitrarily. There is an intention behind them and law is and should be interpreted in that way.
If this loophole exists it probably goes against the intention of the lawmakers and would be struck down by supreme court.
> If this loophole exists it probably goes against the intention of the lawmakers and would be struck down by supreme court.
It's Common law not French/European law. The intent of the lawmakers is, in common law, more or less completely assumed to be present in the text of the law. French/European courts looks to the context the law was made in and other documents produced; common law judges mostly don't (but do look much more to precedent.)
And there is of course the problem of judges in the US being fairly strongly partisan politicised (since all power in the US is partisan politicised), so the interpretation will depend on which party has lately stuffed the supreme court.
There's some thought that it's around presidential pardons, and it's not clear the supreme court would strike down nearly any use of them or allow the legislature to do so short of an amendment.
A despot may also pack the Supreme Court to change the rules, although the existing Supreme Court may prevent the court from being packed. I am curious what would happen if all the members of the existing Supreme Court were to suffer an unfortunate accident in this situation. edit: Of course you still need Congress to approve the nominees.
> This is why there are checks and balances.
Should be, yes. But "are"? How sure are you about that, given the last four years?
Spoiler: the article consistently mentions that we don’t know what the loophole is, so the article is incomplete.
One postulation asserts it has to do with self-reference, which is fundamentally incomplete.
Every article is incomplete or has contradictions.
Is that a theorem?
Surely if all the legal luminaries of HN banded together we could rewrite the constitution in a statically strong typed language and formal verify it.
Considering HN, it would probably be written in Rust.
Down for it. With catala-lang.org for example.
It's without a doubt amending Article V with Article V; I don't really understand why it's thought of as some mysterious loophole lost to time. Not everything a smart man figures out has to be particularly complex.
It almost certainly involves Article V, but likely not in the trivial "amend Article V to change the 2/3 supermajority to propose an amendment to a simple majority and eliminate the requirement for 3/4 of states to ratify" sense. That would never actually be ratified as states would be loathe to give up their power.
My guess is it would first involve the creation of a considerable number of new states under Article IV and then proceed to amend Article V as above by enlisting the newly created states. The part I can't quite explain is how those states get created without dividing an existing state which requires the consent of that state's legislature.
Edit: Really, the more that I think about it, the ability of Congress to create new states by simple legislative action (so long as the territory does not come from existing states) IS almost certainly the loophole. Every new state, no matter how small, gets 1 Congressman and 2 Senators. Create enough, and you control both houses of Congress. Since the EC vote is determined by number of Congressmen + the number of Senators by state, you'd also control the Presidency. Since the number of SCOTUS justices can be changed by simple legislation, you'd now control all 3 branches of government. At that point, using Article V to amend Article V just becomes the final icing on the cake.
Edit 2: DC is not a state, and so would not be subject to Article IV constraints on making new states from existing ones. Article I Section 8 gives Congress complete jurisdiction over DC. Reserve a portion of DC as the US Capital, divide the remainder into 150 new states. I think I just found Gödel's Loophole. Or maybe I'm just "a nerd trying to solve law" as someone else posted, that's entirely possible.
Law isn't code, and nor is a constitution, but it appears the point of the second amendment was to be a backstop against most of the things that could go wrong in such pernicious applications of the law, where if the people can revolt within the confines of the rules, you don't have to throw out the constitution and everything it built. If he found a rule that could be used to overwrite every other rule, there is the option to use popular revolt against the party who was abusing it. As they say, it's a republic, if you can keep it.
I love that Gödel's Loophole is itself incomplete. Very fitting.
The Constitution fails to describe how States are to conduct their elections for federal officers.
A group of states, for instance, could do something silly like hold an ‘election’ via mail-in ballots with no verification of citizenship, residency, etc.
So, you could have a corrupt party in charge of a handful of states take over the Presidency, Senate, and House. And, from that point, it’s a trivial matter to pass legislation ensuring that party’s perpetual power, whether it be through grants of amnesty to millions of non-citizens, or federal laws requiring a method of voting that favors the party, etc, etc.
But, these things could never actually happen, of course.
So what was Austria's loophole?
There seems to be a lot of dismissal in this thread about the consequences of a Constitutionally-legal road to dictatorship.
The historical precedent to this concern is the Nazification of Germany. After Hitler was appointed chancellor, the Enabling Act[1] was passed as an amendment to the constitution. This gave Hitler the power to pass unconstitutional laws without parliamentary or presidential approval.
I think the possibility of iterative erosion of Article V such that the the entrenched clause that protects the composition of the Senate from change without unanimity can be removed is very comparable. This is concerning in an age where a once-majority party has been largely supportive of a figure who's displayed dictatorial tendencies.
Jill Lepore discussed this in her New Yorker article when discussing Linda Colley's new book, The Gun, the Ship & the Pen.
https://www.newyorker.com/magazine/2021/03/29/when-constitut...
Incorporate core rights of the UN Universal Declaration of Human Rights into the body of the Constitution ensuring, as Article 30, that any attempt to weaken or remove any of these rights automatically invalidates the entire Constitution. This makes it too legislatively burdensome to weaken and would unequivocally signal a coup is taking place.
I'm pretty sure the current constitution is in direct conflict with at least some of the UN's stuff, so I doubt that would work at all.
There is no need for a loop hole. A president can do plenty of illegal things without consequences already. Incrementally do it while the public becomes numb to it, or worse, while vocal supporters becomes more nad more entitles, and you get to a dictatorship.
The Wikipedia article about it mentions using Article V against itself, slowly erroding it and the Constitution.
That doesn't seem like the loophole Godel might be concerned about.
if he did find something more concerning then given his skills this looks like nearly perfect security by obscurity.
I suspect such loopholes exist in other constitutions, constitutions like source codes have influenced other constitutions.
Most recent small example in this area : Government of India used article 370 to ammend article 367 which again affected article 370 to change status of Jammu and Kashmir.
No tempaccount99, that would be a regular amendment.
Not a fascist dictatorship-ish "loophole"
I might have heard that in Godel's library there was a book with the note: "I have a truly marvelous proof that the U.S. Constitution is unstable, but the margin of this book is too small to write it out."
More seriously, this is actually a bit reminiscent of Fermat's famous comment. I suppose when the lawbots become operational in a few years, we'll get a full logical analysis of the Constitution and find the loophole(s).
Godel's loophole is technicality of minor importance if its entirely
confined to the constitution.
The real loophole likely relates to presidential powers in relation
to constitution itself: the expansion of executive in 20th century
and executive orders that have not been found contradicting the law,
might allow a precedent to create an "emergency powers" system to bypass constitution itself and rule by decree('executive orders').
The Constitution is already a pile of incoherent contradictions. There's no way a computer program could formally analyze it.
Uhm but wouldn’t that be a halting problem?
What if Gödel never actually found a loophole but simply intentionally left behind a cryptic puzzle, with the influence of his celebrity friends, so that future generations will keep scrutinizing the constitution, watching it for dangerous changes?
Even simpler: What if Gödel never actually found a loophole? The only source we have is Morgenstern recounting an anecdote more than twenty years later. He may well have misremembered/misunderstood/taken out of context/embellished some remark that Gödel made. It makes for a good anecdote, but that doesn't make it true.
This is the prototypical "wow the nerd tried to solve law and lawyering". Yes, the constitution can be ammended to be less democratic. It can also be entirely ignored by everyone, and things can also happen in ways that go against its text, with judges looking the other way!
People are not magically bound by words on a piece of paper, so if you end up being able to go through the (extremely arduous! Moreso than many countries) ammendment process successfully you probably have enough popular support to do whatever you would want in any universe, even with a stricter requirement.
It's embarassing that this anecdote is given almost any weight. It's absolutely the most navel-gazing useless analysis. It does help to serve as an excellent counter-argument to "philosopher kings", though....
Wow, that's overly agressive. If you read the article, the story goes that upon asking him what government his native Austria had, Gödel commented "It was a republic, but the constitution was such that it finally was changed into a dictatorship." The judge commented that this could not happen in the U.S., and Gödel responded "Oh, yes, I can prove it".
I don't see how you jump from this, to saying that Gödel, who was a very smart person, childishly believed that words on paper were universally enforceable to their logical consequences. I'm sure he was aware of the existence of courts...
> It's embarassing that this anecdote is given almost any weight. It's absolutely the most navel-gazing useless analysis. It does help to serve as an excellent counter-argument to "philosopher kings", though....
Damn dude, it's just a funny anecdote, no one is claiming it's a national security threat or anything like that.
There was no analysis involved, Gödel found it while studying for something else.
It's a super small wikipedia article for an amusing story, who said anything about solving law? If there is a contradiction on the Constitution I don't know why would it be a wrong thing to, at the very least, address it.
Wow, you're seriously underestimating this issue. For instance, the German constitution ("Grundgesetz") has an eternity clause in it that makes it unconstitutional to remove the basic principles in Articles 1 and 20. Many other modern constitutions have such clauses.[1] By the way, Article 4, paragraph 4 in the German constitution states: " All Germans shall have the right to resist any person seeking to abolish this constitutional order if no other remedy is available."
If constitutional assemblies worry about things like that, it's not as silly as you put it for Gödel to have wondered about not having such features in the US constitution at a time just after WW2.
[1] https://en.wikipedia.org/wiki/Entrenched_clause
Edit: Not a minor nitpick. Article 1 AND 20. Fixed!
I live in Poland, which (among a few other countries, especially Hungary) made a solid turn from liberal democracy to a less liberal one (Hungary proudly says it is "illiberal democracy"). Laws (including constitution and international agreements) are frequently ignored, applied selectively, or amended illegally.
Governments are not magically bound by law. The cost of breaking or ignoring the law depends on the public reaction (i.e. changes in their approval rate, protests on the streets that can be managed with police and military).
This anecdote should also be understood in the context of the fact that Gödel struggled with paranoia after his mentor was assassinated in 1936. Eventually dying many years later from starvation after refusing to eat because he thought he was being poisoned.
The Constitution and Amendments though typically only work when they expand rights/freedoms rather than contract rights/freedoms. A good example is the 18th Amendment [1] which was drug prohibition of alcohol in 1920 which was reversed with the 21st Amendment [2] in 1933. The addition took away rights/freedoms and it led to a bad phase in America as well as created mafias and underground black markets that sapped money from the regular markets. Interestingly, the country went through the Great Depression towards the end of that timeline.
James Madison, who wrote the Constitution, most of the Federalist Papers AND the Bill of Rights, wrote the Bill of Rights specifically for individual freedoms so that the states would not want to rewrite the Constitution in another convention. Any addition to the Constitution that doesn't add more freedoms, rights or expand the power of the people and their pursuit of "Life, Liberty and the Pursuit of Happiness" as stated in the Declaration of Independence, will be misguided and discarded. Using amendments to strip away the main body of the Constitution, unless for more rights/freedoms, would be an incorrect use of the design goals.
Almost immediately after beginning to meet in 1789, the first Congress, led by James Madison, began to consider amendments to the Constitution proposed by the state ratifying conventions. George Washington and Madison had personally pledged to consider amendments because they realized that some amendments would be necessary to reduce pressure for a second constitutional convention that might drastically alter and weaken the new federal government. Fastening on Anti-Federalist criticisms that the Constitution lacked a clear articulation of guaranteed rights, Madison proposed amendments that emphasized the rights of individuals rather than the rights of states, an ingenious move that led to cries that these amendments—now known as the "Bill of Rights"—were a mere diversion.
"I will now add what I do not like. First the omission of a bill of rights..."
Thomas Jefferson to James Madison, December 20, 1787 [3]
[1] https://en.wikipedia.org/wiki/Eighteenth_Amendment_to_the_Un...
[2] https://en.wikipedia.org/wiki/Twenty-first_Amendment_to_the_...
[3] https://www.loc.gov/exhibits/creating-the-united-states/dema...
knew of this a long time ago, it's godel, what do you expect?
>"Gödel's Loophole is an "inner contradiction" in the Constitution of the United States which Austrian-German-American logician, mathematician, and analytic philosopher Kurt Gödel claimed to have discovered in 1947."
[...]
>"Since the exact nature of Gödel's Loophole has never been published, what it is, precisely, is not known."
Gödel was a brilliant, brilliant Mathematician.
There is no doubt, no question about that!
In fact, he's one of my personal "Mathematical Heros". In the same league as Ramanujan, Gauss, Euler, Newton, etc.
But, while he was all of this, he was also "rank amateur" in terms of finding contradictions in what is commonly called "The Law" (even though this article might have you believe otherwise).
Wow, he found one contradiction in the Law!
And of course, they don't tell you what it was exactly, leaving you guessing, leaving you wanting to know more -- a common trick used by Hollywood (and book authors) for getting and keeping the audience's attention!
One has only to study the Law, or what is commonly called "The Law" -- for a few years, with the mind of a Logician or Computer Programmer -- to discover many, and I mean, many, contradictions...
Here's a "fun one" to "whet your whistle":
https://en.wikipedia.org/wiki/Equal_Protection_Clause
>"The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws". It mandates that individuals in similar situations be treated equally by the law.[1][2][3]
[...]
>"Text
The Equal Protection Clause is located at the end of Section 1 of the Fourteenth Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
Now, compare this equal protection of the laws, with the extremely unequal way that Covid-19 lockdown laws were implemented, State to State, in the United States:
https://en.wikipedia.org/wiki/COVID-19_lockdowns#United_Stat...
>"Stay-at-home orders in the United States have come from several states and a large number of local jurisdictions, sometimes leading to conflicts between different levels of government and a patchwork of inconsistent dates and rules.[610][611][612]"
Sometimes leading to conflicts, Wikipedia?
?
Try more like ALL OF THE TIME!
That is all of them -- are in conflict, contradiction, with the Equal Protection clause of the Constitution.
You see, for a State's Laws to be valid under the Equal Protection clause of the Constitution, it's an all-or-nothing deal.
That's because all Laws are like half-filled glasses of water; that is, they have a filled part, and they have an unfilled part.
If half of a Law is what protects people, it's like the filled part of the glass of water.
The other half of a Law is what encroaches on other people's freedoms and liberties; it's like the unfilled part of the glass of water.
If the Laws which protect people (and simultaneously encroach on other peoples freedoms and liberties) are not exactly equal, in each and every State, all of the time, then this would not be unlike each State having its own glass of water -- that was filled to a different level -- than each of the other States...
In other words,
no longer are individuals in similar situations -- treated equally by the law.
The Equal Protection Clause of the Constitution -- has been violated -- by these asymmetric, contradictory "Laws".
They are therefore, at least according to the Constitution, at least according to the Equal Protection Clause -- fully and thoroughly Unconstitutional (or contradictory, phrased another way) -- yet that hasn't seemed to have been much of an impediment to the groups and parties that implemented them, nor does it seem to be an aspect of things that was discussed or talked about much in the mass media...
But, long story short -- there are many contradictions in Law -- if one but studies the subject matter with the mind of a Mathematician, Logician, or Computer Programmer...
Reading all the comments here, my reaction is 'Whoosh!". Perhaps it is possible to use Cantor diagonalization to demonstrate there are forms of humour that are not accessible to everyone?
> Gödel responded "Oh, yes, I can prove it," but the judge declined to pursue the matter.
Such a mundane judge. It's as if someone says to a physicist "I have the General Unified Theory" and they decide to not listen to it.