A philosopher, an economist and a physicist walked into a courtroom.  They could have left behind an amusing punchline; instead, the legacy of their visit was an uncertainty – which seems appropriate in the circumstances.

The philosopher was Kurt Gödel and he was there for his citizenship test as part of his application to become an American citizen in 1947.  It should have been a formality.  Gödel had been living in the United States since 1940, working at Princeton after fleeing his native Austria on the outbreak of World War II.  He is one of the world’s greatest logicians, ever.  The impact of his work had already been huge.  Even so, despite the relative simplicity of the test, he studied the US constitution and its history in depth in advance – far more so than was necessary – and became agitated at what he concluded.

The problem is that we don’t know what he concluded.  We know that during his hearing, the judge asserted that the United States, unlike pre-war Austria (or possibly Germany), could not fall into a dictatorship through constitutional means; we know that Gödel disagreed and claimed he could prove his argument; we know that the judge cut him off before he could explain further.  We also know that no record of the process Gödel had in mind through which the constitution’s ‘internal inconsistency’ could be exploited to overthrow democracy has ever been found.

Neither he, nor either of the two friends who accompanied him to the hearing as character witnesses, appear to have written this mechanism down, nor spoken of it openly, even though he almost certainly discussed it with them both in advance.  Gödel’s Loophole remains an enigma and a matter of speculation.

Why didn’t he record it?  After all, he was prepared to make the case openly in court.  Although the base matter of constitutional law was somewhat outside his area of expertise, questions of the consistency of systems and internal contradictions were very much home ground for him.

Here we turn to the first of his character-witness friends (and colleagues at Princeton), Oskar Morgenstern, who closely advised him and whose notes are the sole known first-hand account.  Morgenstern was probably the least eminent of the three, having only jointly invented Game Theory and made significant contributions to Decision Theory.  He was also a recently-naturalized American and – consistent with his research and field – had a better understanding of the likely effects of Gödel saying what he thought.

Which is why I think Morgenstern is an unreliable narrator.  His account claims that Gödel’s Loophole is at best an implausible edge-case so unworthy of considering it wasn’t even worthy of recording – presumably to avoid embarrassment – and probably outright wrong.  But all three men had seen at close quarters how democracies can fall, how constitutions can be subverted and how anyone can be forced into migration or refugee status.  Or worse.  Words have consequences.  If there is such a loophole that had (and has) lain dormant and unnoticed for well over a century, isn’t it best not to disturb it?  One can well understand why Morgenstern might have thought so.  (Side-note: why am I potentially disturbing it then?  We’ll come back to that).

A similar case can be made for Gödel’s second friend, colleague and character-witness, Albert Einstein.  Eight years earlier he had written to President Roosevelt about the viability of building an atomic bomb, and the possibility that Nazi Germany might be trying to do so.  That letter did not of itself trigger the Manhattan Project but it was a critical element in the chain reaction that would lead to Hiroshima.  By the time of Gödel’s citizenship application, it was a letter Einstein bitterly regretted signing (with hindsight not available to him in 1939).  Both that personal history with the Bomb and having been almost literally chased out of Germany in 1933 might well have prompted him to persuade Gödel not to hand a would-be dictator a blueprint for action.

Put simply, there is a good chance that Gödel’s Loophole is not false, trivial or outlandish but valid, potent and practical – and that Morgenstern and Einstein believed it to be so.

Which brings us to Donald Trump.  The soon-to-be 47th president has vowed to end birthright citizenship in what he claims to be part of his campaign against illegal immigration.  The problem there is that the Fourteenth Amendment to the US constitution says, among other things:

<I>”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”</I>

In other words, it doesn’t matter if your parents shouldn’t be in the US, if you’re born there (except possibly to diplomats, who are outside normal domestic jurisdiction), then you’re an American citizen.  So how can he deliver on his promise?  If he’s not just winging it, I’d suggest his team might have three plans in mind.

The first, and most in line with Trump’s concept of the presidency, is for him to simply revoke the citizenships by Executive Order.  Can that be done?  Probably not but Trump’s methods tend towards ‘try it and see’.  Who knows what a Court might decide.  After all, despite the universal language of the clause quoted above, people can renounce their US citizenship.  Boris Johnson did.  In certain circumstances, the US government can also strip people of their citizenship.  So it’s not an absolute and eternal right (or burden, depending on who you are and what you want to do).

And note the language of the 14th Amendment: “No State shall make or enforce any law which shall abridge the privileges … of citizens of the United States”.  No <I>state</I>.  It says nothing about the federal government abridging privileges.

Alternatively, Trump has Republican majorities in both Houses.  If he can’t act by himself then maybe Congress can legislate to either strip birthright citizens of their status as an entire category or else to authorise the Executive to be able to do so on a case-by-case basis.

Neither of which has much to do with Gödel.  But Plan C does.  In his interview with Kristen Welker broadcast earlier this month, he talked about ‘getting it [the 14th Amendment] changed’ and ‘going back to the people’ if he gets blocked within DC.  That may have been Trump talking off the top of his head and ignorant of constitutional process, which wouldn’t be out of character.  But let’s take his words at face value; let’s assume that someone has briefed him on how it could be done.

It’s worth noting here that the most common suggestion for Gödel’s Loophole is that it lies in Article V, which deals with how the constitution can be amended, not being entrenched.  In other words, the mechanism for amending can itself be amended, made easier and in so doing the rest of the constitution becomes more vulnerable to grant a dictator power and remove checks and balances.

I disagree.  I think the Loophole is <I>already</I> within the constitution.  Apart from anything else, Article V is protected by itself.  While it could be amended, one would assume that someone trying to do so – particularly someone with already evident autocratic tendencies – would trigger opposition in Congress and/or the states sufficient to block it taking effect.  Or if there <I>is</I> the support to change Article V despite the expectation of further changes to create dictator-like powers, why not just cut out the middle-man and introduce an amendment to create those powers openly?  Also, as a suggestion for the Loophole, it just seems a bit obvious; it’s hardly a revelation.  I would expect something more subtle and elegant.

We should mention here something that constitutional analysts, lawyers, academics and commentators tend to have a blind spot for: political parties.  Although it should be obvious just from everyday politics that parties cross institutions and like to show unity, too many people hold to the concept of Separation of Powers as an article of faith.  It doesn’t really exist, and it certainly wouldn’t exist under a president heading a movement bent on dictatorship.  Again, Gödel, Morgenstern and Einstein had first-hand experience of this – as do we: any number of legislatures around the world are completely subject to the Leader.  We can assume that an aspirant American dictator would expect the same robot-like loyalty from his followers in Congress.  Indeed, that’s less of an assumption than an observation.

So how does Trump get an amendment passed, despite the high bar of needing two-thirds support in Congress and three-quarters of the states?

Firstly, two-thirds in Congress doesn’t mean 67 senators and 290 congressmen: it’s only two-thirds of those voting, not of the total.  Democrats only have a blocking minority if they’re around to block.  So a Bill can be passed either by ambush tactics or by physical intervention.  We should not assume our hypothetical dictator is above such tactics.  (Again, constitutional analysts tend to hold a bizarre assumption that the dictator would feel bound not only by the rules but by the spirit of the game; we should not be so naïve and the Executive has many powers to abuse at will).  That said, violence is outside Gödel’s Loophole, which asserts a dictatorship could be founded by strictly constitutional methods; legislative chicanery, on the other hand, isn’t.  Both work though.

But what of the states?  Here’s where I think the core of the Loophole lies.  Although ratification needs the backing of three-quarters of the states, it doesn’t need three-quarters of the state <I>legislatures</I>.  The constitution also allows for state conventions to approve the proposal, and says nothing as to how these conventions should be convened.  In other words, the Bill passed by Congress could stipulate ratification by conventions and then authorise the President to nominate the delegates to them.  Remember Trump’s comment in the interview about ‘going back to the people’.  This could be how.

Only one Amendment has used the conventions route (the 21st, in 1933, which would have been relatively fresh in the mind in the 1940s).  Although the states appointed their own conventions then, a single example can hardly be a binding precedent.  On the other hand, the unrepresentative nature of the delegates appointed to them would no doubt be cited as justification for doing likewise now, only from White House rather than state capitals.

Given that Congress can also enlarge the size of the Supreme Court, a president with a loyal and submissive majority in Congress could also pack the Court with his supporters, prevent challenges, use the discipline of Party to unite the branches of government under one individual, amend the constitution as necessary using the mechanism outlined above and weaponize the federal government, its agencies and courts against opponents (as well as using soft power, and trading support for contracts) to maintain itself in power.  There’s your dictatorship.

Observers from the 1940s would also have been familiar with the paramilitary wings of anti-democratic parties, particularly before gaining power.  An American party of a similar nature would find it absurdly simple to organise a national network of ‘militia training clubs’, as protected under the 2nd Amendment.  While not formally part of the Loophole solution, these clubs could certainly have buttressed the constitutional abuse with hard power on the ground.  This was, after all, the era of the Jim Crow laws. 

In terms of his deportation program, Trump may not need to go near a constitutional amendment.  Congress and the Supreme Court might give him what he wants anyway.  But if he does, Gödel was right: there are ways to get what he wants on this – and potentially on a great deal more beyond.

David Herdson

p.s. To return to the question of why expose what I think the Loophole may be, the answer lies in preparedness.  We are no longer in hypotheticals and if Trump is trying to actively subvert the US constitution and its mechanisms, his opponents should not rely on him not spotting opportunities but should identify his possible strategies and ready themselves to oppose them.

p.p.s. I’m grateful to Andrew Teale, of Andrew’s Previews, for alerting me to the concept of Gödel’s Loophole after I posted a thread on BlueSky outlining how Trump might implement his deportation plan.  That thread formed the skeleton of this article.