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To be honest, I don't really see how this is a "loophole". The amendment process was intended to allow the Constitution to remain a living document, and balance

To be honest, I don't really see how this is a "loophole". The amendment process was intended to allow the Constitution to remain a living document, and balance longevity with future flexibility. I don't think the framers would have been at all surprised that it is possible to effectively dismantle the Constitution or the Union entirely through amendments. If this were not intended, why weren't additional restrictions placed on the scope of amendments? As it stands, Article V places the following limits: "... provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate." Unless I'm misunderstanding some part of this paper, this seems more like a feature, than a bug. It also reflects practical realities: if a legislature overwhelmingly supports a change, any roadblocks or restrictions will most likely be ineffective in the long term.

AndrewKemendo 12y ago
It's a loophole because it does not maintain consistency of the law and allows for an internally modifying process. I agree with you that it is not "one weird trick" or a "hack" or something that is unknown and easily exploitable, which is why I think Einstein et al. dismissed the concern, supposing this is the actual concern that Godel was proposing. If anything the adoption of the 22nd Amendment - using the process that the 5th allows - somewhat shows that the system works the opposite direction by placing more restrictions on potential tyrannies.
- baddox 12y ago
  It's supposed to allow for an internally modifying process. That's the entire point.
- dpierce9 12y ago
  There is also no requirement for consistency in the constitution. Of course, we could amend it to add one.
raldi 12y ago
The clause about Senate representation was clearly written to prevent 3/4ths of the states from depriving the other 1/4 of their Senate representation. What would happen if 3/4s of the states passed an amendment repealing this clause?
- ewoodrich 12y ago
  1. They were trying to prevent the largest states from subverting the Connecticut Compromise and establishing a representative system based only on population. 2. No, but not only because of the "loophole". Godel feared that Article V permitted a legally sanctioned dictatorship, but this clause would be irrelevant in that case. It would certainly be possible to reduce the Senate to obsolescence by limiting the powers of the Senate via permissible amendments, while maintaining the original suffrage in the Senate as required. Edit: You have edited your comment, so my replies are no longer clear. I am responding to two questions: what was the intent of the suffrage clause, and is it effective?
- dragonwriter 12y ago
  The thing you have to understand about laws -- and this is certainly the case with the Constitution -- is that they aren't written for automatons, they are written for humans. The prohibition of changes to representation to the Senate doesn't work as an inescapable barrier and isn't intended, it works as a red-flag warning. The enforcement mechanism it relies on isn't law-as-mystic-amulet, is the same one that enforced the view American colonists had of their proper freedoms when it clashed with the policies of the British Crown.
  - stcredzero 12y ago
    The thing you have to understand about laws -- and this is certainly the case with the Constitution -- is that they aren't written for automatons, they are written for humans. Some programmers have a hard time with this.
    - eximius 12y ago
      And some logicians too, apparently.
tanzam75 12y ago
> It also reflects practical realities: if a legislature overwhelmingly supports a change, any roadblocks or restrictions will most likely be ineffective in the long term. Exactly. In the worst case, if an obstructionist minority of states were to block an overwhelmingly popular and desperately needed amendment, a sufficiently large number of states could simply write a new Constitution. After all, that's exactly how the current U.S. Constitution got put into place. The Articles of Confederation could only be amended by unanimous vote of all 13 states. And of course, they needed unanimity to amend the unanimity clause. So it was an amendment clause without loopholes. But only 12 states showed up at the Constitutional Convention! Unanimity was obviously not going to happen. So the delegates wrote a new Constitution anyway, and specified a ratification threshold of 9 states. Once this threshold had been reached, the other 4 states could have fun governing their rump country under the old Articles. But the ratifying states would be in a customs union and have a strong central government, and they could make do just fine without the holdouts. In the end, only two states held out. Eventually, both gave in. North Carolina didn't even last a year on its own. Rhode Island lasted 15 months. The same people who pulled off this stunt also wrote the Constitution. So they were well-aware that a watertight amendment process was no bar to the truly determined. Might as well leave it leaky.
- mmanfrin 12y ago
  It's worth noting that the other 2 of the 4 holdouts were New York and Virginia. The writers/ratifiers of the constitution knew that without those two, the entire endeavor would fail. They both eventually agreed on the stipulation that further controls to the federal government (Bill of Rights) would need to be codified within 90 days, or else their ratification would nullify. They both ended up voting in favor of ratification by narrow margins, and this left N.C. and R.I. left to wallow in isolation for a brief bit.
- stcredzero 12y ago
  Exactly. In the worst case, if an obstructionist minority of states were to block an overwhelmingly popular and desperately needed amendment, a sufficiently large number of states could simply write a new Constitution. After all, that's exactly how the current U.S. Constitution got put into place. Hopefully this doesn't result in another civil war over the issue of gun control. (The current stance seems to be to allow individual states great latitude in how they interpret the 2nd amendment.)
wdr1 12y ago
> The amendment process was intended to allow the Constitution to remain a living document, and balance longevity with future flexibility. A little bit of a tangent, but amendment process shouldn't be confused with the theory of the Constitution as a living document. In fact, they're almost opposites. The living document doctrine holds that the Constitution can change -- without formal amendment -- based on the evolving standards of a society. E.g., what is "cruel & unusual" is not based on what the authors had in mind when they wrote the phrase, but rather what society thinks that means today.

AndrewKemendo 12y ago

It's a loophole because it does not maintain consistency of the law and allows for an internally modifying process. I agree with you that it is not "one weird trick" or a "hack" or something that is unknown and easily exploitable, which is why I think Einstein et al. dismissed the concern, supposing this is the actual concern that Godel was proposing. If anything the adoption of the 22nd Amendment - using the process that the 5th allows - somewhat shows that the system works the opposite direction by placing more restrictions on potential tyrannies.

baddox 12y ago
It's supposed to allow for an internally modifying process. That's the entire point.
dpierce9 12y ago
There is also no requirement for consistency in the constitution. Of course, we could amend it to add one.

raldi 12y ago

The clause about Senate representation was clearly written to prevent 3/4ths of the states from depriving the other 1/4 of their Senate representation. What would happen if 3/4s of the states passed an amendment repealing this clause?

ewoodrich 12y ago
1. They were trying to prevent the largest states from subverting the Connecticut Compromise and establishing a representative system based only on population. 2. No, but not only because of the "loophole". Godel feared that Article V permitted a legally sanctioned dictatorship, but this clause would be irrelevant in that case. It would certainly be possible to reduce the Senate to obsolescence by limiting the powers of the Senate via permissible amendments, while maintaining the original suffrage in the Senate as required. Edit: You have edited your comment, so my replies are no longer clear. I am responding to two questions: what was the intent of the suffrage clause, and is it effective?
dragonwriter 12y ago
The thing you have to understand about laws -- and this is certainly the case with the Constitution -- is that they aren't written for automatons, they are written for humans. The prohibition of changes to representation to the Senate doesn't work as an inescapable barrier and isn't intended, it works as a red-flag warning. The enforcement mechanism it relies on isn't law-as-mystic-amulet, is the same one that enforced the view American colonists had of their proper freedoms when it clashed with the policies of the British Crown.
- stcredzero 12y ago
  The thing you have to understand about laws -- and this is certainly the case with the Constitution -- is that they aren't written for automatons, they are written for humans. Some programmers have a hard time with this.
  - eximius 12y ago
    And some logicians too, apparently.

tanzam75 12y ago

> It also reflects practical realities: if a legislature overwhelmingly supports a change, any roadblocks or restrictions will most likely be ineffective in the long term. Exactly. In the worst case, if an obstructionist minority of states were to block an overwhelmingly popular and desperately needed amendment, a sufficiently large number of states could simply write a new Constitution. After all, that's exactly how the current U.S. Constitution got put into place. The Articles of Confederation could only be amended by unanimous vote of all 13 states. And of course, they needed unanimity to amend the unanimity clause. So it was an amendment clause without loopholes. But only 12 states showed up at the Constitutional Convention! Unanimity was obviously not going to happen. So the delegates wrote a new Constitution anyway, and specified a ratification threshold of 9 states. Once this threshold had been reached, the other 4 states could have fun governing their rump country under the old Articles. But the ratifying states would be in a customs union and have a strong central government, and they could make do just fine without the holdouts. In the end, only two states held out. Eventually, both gave in. North Carolina didn't even last a year on its own. Rhode Island lasted 15 months. The same people who pulled off this stunt also wrote the Constitution. So they were well-aware that a watertight amendment process was no bar to the truly determined. Might as well leave it leaky.

mmanfrin 12y ago
It's worth noting that the other 2 of the 4 holdouts were New York and Virginia. The writers/ratifiers of the constitution knew that without those two, the entire endeavor would fail. They both eventually agreed on the stipulation that further controls to the federal government (Bill of Rights) would need to be codified within 90 days, or else their ratification would nullify. They both ended up voting in favor of ratification by narrow margins, and this left N.C. and R.I. left to wallow in isolation for a brief bit.
stcredzero 12y ago
Exactly. In the worst case, if an obstructionist minority of states were to block an overwhelmingly popular and desperately needed amendment, a sufficiently large number of states could simply write a new Constitution. After all, that's exactly how the current U.S. Constitution got put into place. Hopefully this doesn't result in another civil war over the issue of gun control. (The current stance seems to be to allow individual states great latitude in how they interpret the 2nd amendment.)

wdr1 12y ago

> The amendment process was intended to allow the Constitution to remain a living document, and balance longevity with future flexibility. A little bit of a tangent, but amendment process shouldn't be confused with the theory of the Constitution as a living document. In fact, they're almost opposites. The living document doctrine holds that the Constitution can change -- without formal amendment -- based on the evolving standards of a society. E.g., what is "cruel & unusual" is not based on what the authors had in mind when they wrote the phrase, but rather what society thinks that means today.