The events of this election cycle have caused a renewed examination of our democracy. Our system of government survived a president who either didn’t believe or was unwilling to accept the election results that denied him a second term. This proved the U.S. Constitution is a strong document, capable of surviving the most difficult challenge.
Or is it? Consider the relevant wording of Article V —
“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress….”
So Article V provides a way to amend the Constitution. This was a critically important inclusion that probably made the document acceptable for ratification in the first place. Certainly the Founding Fathers knew there would be trials. In the words of Benjamin Franklin: “Our new Constitution is now established, everything seems to promise it will be durable; but, in this world, nothing is certain except death and taxes.”* This new experiment in government would need to be modified as circumstances exposed its flaws, and as the Bill of Rights quickly proved.
But by creating an amending procedure, did Article V actually introduce a serious, perhaps even fatal, flaw? As part of the Constitution itself, it would be perfectly legal to amend the amending procedure. In other words, use Article V to change Article V!
Would there ever be a time that one political faction or party would have such a supermajority that Article V could be legally amended to say something like “The President, whenever he shall deem it necessary, shall make amendments to this Constitution, which shall be valid to all intents and purposes, as part of this Constitution.”?** It seems highly unlikely. But then, history is replete with “highly unlikely” scenarios (see Germany after World War I).
This is not my idea. It was first proposed by logician Kurt Gödel, an Austrian exile who became a U.S. citizen in 1947. Consequently, it became known in scholarly circles as Gödel’s loophole, which is discussed by Professor Brian M. Lucey in “Godel’s loophole : Turning the USA into a Dictatorship, Constitutionally” (https://brianmlucey.wordpress.com/2016/11/17/godels-loophole-turning-the-usa-into-a-dictatorship-constitutionally/).
Perhaps the good Doctor Franklin should’ve said “Nothing is certain but death, taxes, and Constitutional amendments.”
** This example is used in “When Constitutions Took Over the World” by Jill Lepore (https://www.newyorker.com/magazine/2021/03/29/when-constitutions-took-over-the-world?).