Does the Constitution Have a Hidden Flaw That Could Create Tyranny? About ‘Gödel’s Loophole’

A copy of the U.S. Constitution in Washington on Dec. 17, 2019. (Andrew Harnik/Pool/Getty Images)

Commentary

Is there a hidden flaw in the Constitution that, when leveraged legitimately, could create tyranny? If so, what is it?

This is the issue of “Gödel’s Loophole.” It’s named for mathematician Kurt Gödel, who claimed he had found such a flaw in the Constitution. However, he never announced publicly what it was.

Left-leaning commentators have speculated about it while fantasizing about “fascist” tendencies in former President Donald Trump. (Have they ever examined the nature of the Biden administration’s record?)

Creditable scholars also have speculated about what Gödel found—or thought he found.

As I explain below, Gödel’s “flaw” likely was based on his own misunderstanding. Most later speculations are also based on misunderstandings.

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That said, I believe I do know what the alleged loophole was. It was not something I’ve seen identified elsewhere. But it is something you might expect from a brilliant logician untrained in constitutional law. I’ll relieve your suspense later in this column.

The Gödel Story

In 1938, Nazi Germany annexed Austria. The following year, Gödel fled to the United States. Gödel was a friend of Albert Einstein, who had immigrated several years earlier.

Gödel decided to seek American citizenship. To prepare for the citizenship examination, he studied the U.S. Constitution with a logician’s careful eye.

He claimed to others that he had found a logical defect or other flaw—a defect that could be used legitimately to erect an authoritarian government. At his naturalization hearing on Dec. 5, 1947, there was an interchange more or less like this:

Judge Forman: “Now, Mr. Gödel, where do you come from?”

Gödel: “Where I come from? Austria.”

Judge: “What kind of government did you have in Austria?”

Gödel: “It was a republic, but the constitution was such that it finally was changed into a dictatorship.”

Judge: “Oh! This is very bad. This could not happen in this country.”

Gödel: “Oh, yes, I can prove it.”

Judge: “Oh God, let’s not go into this.”

Gödel’s application for citizenship was successful.

Obstacles to Finding Gödel’s Loophole

People searching for Gödel’s loophole face several serious obstacles. For one thing, it’s unclear what kind of flaw it is. Is it an actual logical contradiction or some other kind of defect?

We also don’t know whether Gödel was really successful. Maybe he thought he found a flaw but really didn’t. After all, he was a mathematician, not a constitutional scholar. Did he know anything about the Constitution’s controlling history? Or about 18th-century word meanings? Or about how we interpret legal documents?

Some modern speculations about the loophole tell us that the speculators are also ignorant of these matters.

Further, it’s not clear what form of authoritarianism Gödel thought the loophole could create. Was it necessarily an absolute one-man dictatorship? Or was it a term in the Constitution that might be used to create limited dictatorship, oligarchy, or one-party rule?

Knocking Down Possibilities

With the foregoing in mind, let’s list—and knock down—each of the leading candidates for the Gödel loophole.

Suggestion No. 1: The president could authorize a coup and then use his pardon power to pardon everyone involved.

This doesn’t qualify. The loophole supposedly permits a legal path to authoritarianism. A pardon is issued to protect someone from the consequences of illegal behavior—such as staging a coup.

Suggestion No. 2: Congress could use its open-ended power to tax or regulate interstate commerce to make itself omnipotent.

Anyone who thinks this is a loophole doesn’t understand the true scope of the Constitution’s taxation and commerce powers. Those powers are granted by Article I, Section 8, Clauses 1 and 3.

The sections are not “open-ended.” The founders wrote the Constitution to be applied as the ratifiers understood it. The ratifiers understood both Clause 1 and Clause 3 to be limited in various ways.

It is true that since the New Deal, the Supreme Court has treated the taxation and commerce powers as overly broad. But that is a flaw in the court’s decisions, not in the Constitution.

Anyway, even the expanded powers are still ultimately controlled by a democratically elected Congress, not a dictator.

Suggestion No. 3: The president could use his open-ended power as commander-in-chief to put the entire country under permanent martial law.

This suggestion is also based on a misunderstanding.

Article II, Section 2, Clause 1 provides that the president is “Commander in Chief of the Army and Navy of the United States.” This power is not open-ended. As commander-in-chief, the president may declare martial law only temporarily and in an actual war theater, not permanently or over the entire nation. Moreover, Congress decides on funding for the troops he commands.

As former Supreme Court Justice Robert Jackson famously remarked, the Constitution makes the president the commander-in-chief of the armed forces, not the commander-in-chief of the country.

Suggestion No. 4: The Supreme Court could use its open-ended power of judicial review to control the government.

This suggestion is also based on a misunderstanding of the Constitution. The power of judicial review is not open-ended, but quite restricted. The Supreme Court can exercise it only in cases that properly come before the court. Further, the Constitution authorizes many ways in which Congress, the president, and the states can retaliate against the court and limit or reverse its rulings.

Suggestion No. 5: The president could use his recess appointment power to create new senators and stack the executive branch and the judiciary.

This is based on a misunderstanding of the recess appointments clause (Article I, Section 2, Clause 3). It does not give the president authority to appoint senators. It grants power only to appoint those officers whom the president commissions (i.e., executive and judicial), only when there are vacancies, and only for very short times.

Suggestion No. 6: A convention called under Article V of the Constitution could unilaterally rewrite the document.

Still more misunderstanding! Article V authorizes only a “Convention for proposing Amendments” to “this Constitution.” As I have explained in previous columns, the convention is subject to all sorts of restrictions—including the fact that its proposals must be approved by three-fourths of the states.

Suggestion No. 7: Congress could use its authority to admit new states to admit scores of tiny ones, which could then freely amend the Constitution.

Article IV, Section 3, Clause 1 provides that “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”

Notice that Congress cannot unilaterally create new states from old ones, but only from federal territories. It would take hundreds of such states to amend the Constitution—even if they remained obedient to the commands of Congress.

More importantly, this scenario is so far-fetched that the power to admit new states from federal territories does not qualify as a flaw. Constitutions are designed for reality, not fantasy.

Suggestion No. 8: The Article V amendment procedure could be used to erect an authoritarian government.

This suggestion has some respectable advocates, but there are strong reasons for believing that it is not what Gödel thought he had found.

Congress and the states could try to use Article V to create an amendment saying, essentially, “Da president, he da boss.” But that would create an entirely new Constitution. Article V permits only “Amendments” to “this Constitution.”

Or Article V could be used to amend itself, perhaps enabling Congress to change the Constitution on a majority vote. Then, in theory, Congress could pass another amendment ceding all power to the president.

But a similar risk is inherent in almost any amendment procedure. The only exception would be a procedure that is absolutely unamendable. That, however, would contradict the basic assumption that “We the People” govern the country.

So if Article V was Gödel’s loophole, then it was only because he didn’t know the history of the Articles of Confederation and of early state constitutions. That history shows that unamendability is the real flaw, and amendability is a virtue.

So What Is It?

We’ll probably never know the alleged defect Gödel thought he found. But here’s my hypothesis:

Article I, Section 8, Clause 5 contains the weights and measures clause. It grants Congress power to “fix the Standard of Weights and Measures.” History before the Constitution shows that this language includes authority to adjust the calendar and measures of time. Congress exercises this power by, for example, adopting the abomination known as “Daylight Saving Time.”

The Constitution provides that congressional representatives serve for two years and senators for six. Conceivably, Congress could pass a law declaring that a year is redefined to be one hundred revolutions of the Earth around the sun—what previously was a century. By extending the official year in this way, members of Congress might think they were ensconced for life. Then they could impeach and remove anyone in the executive or judicial branch who defied it—including the president.

The result would not be a dictatorship, but it would be an oligarchy.

My hypothesis is just the kind of conclusion a highly intelligent and logical mind—but one without legal or constitutional training—might reach. In fact, a somewhat similar idea was bandied about during the convention that ratified the Constitution for Massachusetts in 1788.

But in the real world of constitutional interpretation, the weights and measures clause is not a hidden flaw. This is because, to the extent determinable, the Constitution’s words mean what they meant when the document was ratified.

Thus, when the Constitution uses the word “year” in describing terms of office, it means “year” as understood when the document was ratified. In other words, the period of one revolution of the Earth around the sun, not one hundred.

Under the weights and measures clause, Congress may change the meaning of “year” for other purposes, but not to alter the meaning of the Constitution.

So my guess is that what Gödel thought was a flaw in the Constitution probably wasn’t.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.