Kurt Gödel is famous for his “incompleteness theorems”, and ranks among the all-time great mathematicians (he was also a logician and a philosopher). What’s less well known about him is that he claimed to have discovered an “inner contradiction” in the United States Constitution, a means by which American democracy could be converted to fascist dictatorship as had been done in Germany and his native Austria, entirely legally.
That’s a big deal, yet the precise loophole Kurt Gödel identified has been lost to time. Wikipedia has a good summary of the whole issue. What was the loophole? And do we even want to know what it is? Ah, that’s a good question. But if we don’t identify it somebody else more hostile to our interest might, so press on we must.
Scholars have proposed various possibilities; one is the fact constitutional amendments can be passed to make further amendments easier, but that’s rather banal and possible in basically any system, so I doubt that’s what he had in mind, which was presumably a loophole particular to the American constitution. A 2018 piece in Slate by Dan Rockmore gets much warmer, at first speculating about gerrymandering or the electoral college enabling minority rule (which are likewise banal), but then hits upon the Presidential pardon power. A ha! More on that later.
Admitting New States to rig the System
Far more intriguingly, Congress has the power to admit new states by a simple majority vote, and a 2020 Harvard Law Review piece seriously proposes using this power to “pack the union”. Critically, Congress has the power to carve up territories into new states however it pleases; there is no constitutional requirement for states to have any minimal amount of territory or population. Thus the authors of this piece propose Congress divide the District of Columbia into over a hundred new states.
These new states would elect Democratic members of Congress and would have Democratic legislatures, so they would add enough Congressmen to give the Democrats the two-thirds supermajority needed to pass constitutional amendments through Congress and the three-quarters supermajority of state legislatures needed to ratify them.
The original piece proposes this horde of new states then pass amendments to make the federal constitution more democratic; the political reforms proposed are sound and reasonable. But the point of bringing this up here is that this tactic can in principle be used to accomplish any purpose, and indeed can be extended beyond the idea of admitting all of the District’s neighborhoods as states, which as the piece points out isn’t more of a stretch than admitting Nevada as a state when it had a population of just 6000 (lower than many urban neighborhoods!).
Consider that in principle a one-acre plot of land on one of the Minor Outlying Islands, federal territories, could be admitted as a state, with its residents all being political operatives loyal to the party (or person) in power. This of course would bring into being America’s very own version of England’s infamous “rotten boroughs”, voting districts in the pocket of some patron or another, frustrating the broader will of the people who enjoy less representation.
In principle hundreds of such new states could be created, enough to form a vast majority of the Congress; each state gets two Senate seats, but in the House each state is entitled to a minimum of one seat, so these rotten states would dominate the House too. If all of these states were loyal to one party or one man they could then do whatever they wanted to the federal constitution with impunity.
Add the Presidential Pardon Power for bonus Nightmare Points
Now that’s a really clever and peppy loophole! Where it really takes off is when you couple this technique with the Presidential pardon power. Even the rotten states technique requires an absolute majority in both houses of the existing Congress to set it in motion, which might prove difficult for a dictator who may, like Adolf Hitler, enjoy support from only a minority.
It’s often said that Hitler was democratically elected, but that’s not really true. The people voted in the Nazis, led by Hitler, to about a third of the Reichstag’s seats, reflecting their share of the popular vote (also about a third). But the Nazis got into government by invitation of President Paul von Hindenburg who was ruling by decree at that point.
The true Machtergreifung, though, didn’t come until after the Reichstag Fire, when through violence and intimidation the Nazis coerced a majority of the parliament into passing the Enabling Act, which essentially abolished the constitution and granted Hitler dictatorial powers. He then used them to eliminate his political opponents, establishing a Nazi-led one-party state.
A Legally Airtight Plan for an American Dictatorship
So let’s say an American President wants to be a fascist dictator but only enjoys support from a large minority in Congress a la Hitler, somewhat short of the numbers needed to enact the “rotten states” plan which will give him unlimited power. Violently intimidating enough Congressmen to vote for it is one way to achieve a majority, as is assassinating enough Congressmen who oppose it so those who remain constitute a majority, but the obstacle to both of those strategies is that they’re highly illegal.
Some level of protection, however, might be granted by the President by use of the pardon power. Importantly, a Presidential pardon only protects against federal criminal conviction; state criminal convictions are unaffected, as is both federal and state civil liability. Additionally, a President cannot pardon himself; the constitution gives the President the power to “grant” pardons, and in the Anglo-American legal tradition a “grant” can only be given to other people, not to oneself. It’s also worth noting that pardons don’t protect against impeachment.
State prosecution or liability might not be relevant, since the Congress meets in a federal district, so crimes committed against Congressmen there fall under federal jurisdiction. So hypothetically if the President’s supporters committed crimes against or even assassinated hostile members of Congress they could be pardoned and thus be made immune from prosecution. Even then they could not be made immune to civil liability, which might be a problem.
But even then, if the plan is executed and the federal courts are packed with friendly judges fast enough, the higher federal courts could overrule findings of civil liability against the assassins and thugs. Alternatively, the new rotten Congress could immediately strip the federal judiciary of authority to hear the cases by statute, or they could work with the new rotten states to do it by constitutional amendment.
Thus we have a legally airtight plan to install a dictatorship in the United States that is formally legal, just like what Kurt Gödel was talking about. Whether this is the loophole Gödel actually had in mind is unknown, but I wouldn’t be surprised if it was. It’s rather clever, arguably constitutes “inner contradictions”, and is remarkably similar to the way the fascists seized power in various countries “legally” in the 1920s and 30s.
Whatever Gödel’s loophole was, we know that Oskar Morgenstern, the only person he ever told about it as far as we know, tried to persuade Kurt Gödel that it was very unlikely to actually be used, but to no avail; Gödel remained concerned about it.
Legality versus Reality
Perhaps we should too, but on the other hand if someone actually did try to execute such a plan it seems unlikely the country would go along with it regardless of its formal legality. Courts and state governments may well assert an inherent power to stop injustice regardless of the letter of the law, and so too might popular uprisings. Under such circumstances a military and/or congressional and/or judicial coup d’état “to protect the constitution” could not be ruled out either. Such things have happened in many countries during a constitutional crisis, which this plan would undoubtedly trigger.
The Rise of Lawlessness
Nevertheless, given an environment in which an authoritarian movement has real mass support and/or there is mass hysteria, especially among the elite, this plan, which you might call “Adamas Nemesis’s loophole” if you don’t want to put words in Gödel’s mouth, might actually be executed.
Already during the coronavirus pandemic, and during the post-9/11 era, we have seen laws and constitutions, down to even their most fundamental precepts, widely ignored by governments, the trend being for states to enjoy de facto impunity to do whatever they please in the name of safety. Given the post-legal zeitgeist of the early 21st century it honestly seems more likely to me that laws and constitutions will be ignored without even bothering with the formalities of overturning them. The whole mentality that laws have to be obeyed is out of fashion among ruling classes the world over, and has been since the Great War if not some decades earlier, concomitant with the death of classical liberalism.
January 6: A Worst-Case Alternate, or Future, History
So this whole matter might be more academic than anything else, even if it is some seriously dark stuff. However, it’s worth noting that installing a fascist dictatorship a la Interwar Germany or Austria is not the only use of these techniques. Imagine a President like Donald Trump but with a group of followers able and willing to intimidate and even assassinate hostile members of Congress, a January 6 Capitol attack that actually had a plan instead of a bunch of people wandering around aimlessly taking selfies and smashing up stuff.
Under such a scenario Congress might be forced at gunpoint to decertify enough electoral votes from alternate-Trump’s opponent to strip either candidate of an electoral college majority. In that event the contingent election is triggered, and Congress is once again intimidated into giving a majority of state delegations, and thus the contingent election and the Presidency, to alternate-Trump.
Alternate-Trump then issues pardons for all offenses committed in the course of the operation, and Congress is intimidated into stripping the federal courts of civil jurisdiction in the matter, thus granting impunity against any legal consequences. Possibly for added security the Supreme Court is packed too (by the intimidated Congress) with enough friendly judges to overturn any cases that might slip by regardless of the jurisdiction-stripping.
That would be the way to abuse the January 6 certification process to overturn the results of an election, like we now know Donald Trump and company were actually contemplating trying to do! In their case they wanted a majority of Congress to vote to decertify the results (which is completely legal for them to do even if it is screwy) or if all else failed (which it would, since Democrats had a majority) try to get Vice President Mike Pence to unilaterally decertify enough votes to stop Biden from becoming President.
Which, by the way, is blatantly illegal, since Congress is explicitly given the power to count the votes, and it’s a precept of law (dating back to Roman times) that a man cannot judge his own case; therefore, a Vice President cannot legally re-elect himself unilaterally unless there’s black-letter text that says otherwise (which in this case there obviously isn’t). Despite the farcical nature of this “plan” Mike Pence was apparently going to actually go through with it until Dan Quayle (of all people) talked him out of it. Not that it would have gotten him anywhere; a majority of Congress would have overridden Pence regardless.
If such a situation recurs and America has an outgoing President with more competence and less scruples than Donald Trump had it could mean serious trouble.
Closing the Loopholes, before it’s too Late
So what is to be done? You might have noticed that these scenarios are heavily reliant on the Presidential pardon power, the Congressional jurisdiction-stripping power, and the Congressional court-packing power. Simply abolishing them all, or perhaps making their exercise contingent on the agreement of a broad section of state governments, would go a long way toward closing these loopholes.
The remaining loophole is the “rotten states” plan. Constitutionally entrenching a minimum area and/or population requirement for a new state would close that loophole, but it robs the federal government of much-needed flexibility in its structure. There are all manner of non-nefarious reasons why one would want to admit a new very small state; additionally, even a minimum of, say, 100,000 people for a new state wouldn’t stop the admission of new states from carving up existing ones with the consent of friendly state legislatures. Republicans could yield dozens just from carving up Texas, for example.
No, the most ironclad guarantee would be explicitly granting states the power to secede from the union. That way if anyone attempts to execute the “rotten states” plan every state could just secede and reform the union, leaving the old union as a powerless rump. Ideally in my view the secession power would be unlimited, but if one merely wants to close this loophole one could easily add a constitutional amendment explicitly recognizing the right of any state to secede whenever a new state is admitted into the union.
This provision would keep the union together under normal circumstances while giving every existing a state a veto power over whether they wish to be in a union that includes a given new state. Thus running roughshod over existing states by admitting a flood of new “rotten states” is rendered impotent as a strategy.
Me, a White-Hat Constitutional Hacker
Dark stuff indeed this is, but I honestly think that might be the loophole Gödel had in mind, and even if it wasn’t, even if it’s a loophole discovered by me, Adamas Nemesis’s loophole, it’s still something we should pay attention to. In constitutions as in cyber-security, friendly experts probing for weaknesses to patch up is a key defense against forces that seek the system’s destruction. The weaknesses I identify here might seem highly hypothetical, but I still believe they deserve greater scrutiny and an effort to close them before some character much more villainous than I comes along and at long last tries to exploit them.