Gödel’s Loophole is a supposed “inner contradiction” in the Constitution of the United States which Austrian-American logician, mathematician, and analytic philosopher Kurt Gödel postulated in 1947. The loophole would permit the American democracy to be legally turned into a dictatorship. It has been called “one of the great unsolved problems of constitutional law” by F. E. Guerra-Pujol.
It’s the paradox of all democracies. The freedom of the people to change any aspect of their society, including the founding documents that create it, mean they have the freedom to give away their freedom. Giving away freedom has always been part of the constitutional contract. The idea is to curtail what freedoms we curtail, but there is no way to mandate it without fundamentally curtailing the fundamental freedom to choose what can or can’t be curtailed.
If it sounds like I’m looping, that’s because that’s what paradoxes do.
I mean it makes sense the way you put it. We create laws because there is a line in the sand we semi agree on. You don’t have the right to murder people. But we debate on the rights to have the tools to murder people. The line is supposed to get wavy and get back and forth. We say we want absolute freedom here, but absolute freedom is anarchy. In really we have to pick and choose freedoms.
I would think that the ability to change from a democracy to some other form of government with the consent of a majority of the people wasn’t something Gödel (or the authors of the Constitution) would have viewed as unintentional or problematical. I think it more likely that Gödel thought he’d found something the Constitution’s authors didn’t anticipate and would have changed if they’d been aware of it.
The bar for things deserving of constitutional change is already low, and history shows it. Plenty of things in the Constitution would be changed in hindsight—that’s why we have the amendment process in the first place. But the major argument about this “loophole” I’ve read is actually precisely that: that Godel felt the process was disturbingly easy to manipulate. Just look at how the Senate rules for confirming SCOTUS nominees and cabinet members dropped to a simple majority. It’s entirely constitutional to take Article V and weaponize it, even to transform the Constitution into a charter for a fascist theocracy, as long as enough people support it.
The real threat isn’t an overnight authoritarian coup; it’s far more subtle—a calculated, step-by-step re-engineering of Article V itself. The first step is an amendment to require simple majorities in state legislatures for adoption and then removing those messy, inhibitory state legislatures entirely, framed as a way to “restore the Constitution to its hallowed status as a living document.” This sets the stage for the next move—an amendment eliminating the supermajority requirement in Congress to pass amendments. Of course, that change comes wrapped in patriotic rhetoric: “returning power to the people through their representatives, so the people’s voice can once again shape the founding document of our democracy!”
Now the game is on. A party in power with a simple majority in congress can rewrite the Constitution at will. A flurry of amendments follows, each more extreme than the last: extending presidential terms indefinitely, consolidating power in the executive branch, and then they close the door by passing a final amendment granting the president sole authority to interpret or invoke the Fifth Amendment.
And that’s it. The Constitution is still “living,” still technically unbroken from its adoption in the 18th century, but now it’s a tool for maintaining authoritarian rule. It has been legally and constitutionally transformed into a framework that makes the government unrecognizable as a democracy.
There is no legal way to undo it. Once the Constitution is amended to entrench authoritarian power, it becomes the ultimate barrier to change. The only way back would require abolishing the Constitution itself.
“Living document,” they’d call it, and it would be true. But this version of the Constitution wouldn’t live for the people. It would endure as a monument to how democracy destroyed itself, legally and constitutionally, from the inside out.
How is there an issue with curtailing the freedom to chose that? It is already restricted in that constitutional changes can require >50% of the votes.
Multiple countries have such restrictions on parts of the constitution. Germany for instance cannot alter the paragraphs stating:
That doesn’t change anything. The idea that certain laws in the German constitution are untouchable doesn’t hold up when we think about the paradox we are discussing. The will of the people can, in theory, change even the most fundamental principles that protect that will. While the Eternity Clause seems to lock certain values, like human dignity and democracy, in place, democracy is about self-determination—the idea that the people can reshape the very rules that govern them. The grundgesetz is subject to constitutional replacement initiated by the people like any other nominal democracy. It’s a foundational idea in modern democracies that the people have the right to scrap a constitution and start again. That can’t really be “outlawed,” because constitutional revolution is by definition beyond constitutional law.
Even within the extant constitutional framework, if enough public support exists, the people could legally change the constitution by modifying the amendment process itself. It could also be changed through judicial reinterpretation of the eternity clause or of the “basic principles.” The invocation of article 48, state of exception, is also an obvious way that these basic principles can be temporarily suspended. While it seems specifically forbidden, the wide latitude 48 gives, especially under conditions where the survival of the state is at stake, does open the door for getting around the eternity clause in multiple ways, some direct and some indirect. The argument that some laws are untouchable overlooks the fact that, ultimately, the will of the people has the power to redefine its own foundational principles. It also overlooks the ways judicial interpretation and states of exception can effectively gut them. So, while the Eternity Clause acts as a safeguard, in the context were discussing it’s just lip service—democracy is about the power to change even the unchangeable, so the idea that “well there’s a rule against changing the rules” is circular and faulty.
While everything you said is true, it’s also worth mentioning that the intention behind eternity clauses is making such changes significantly more difficult under the existing system. They provide far more security than a system such as Britain’s with parliamentary supremacy which prevents Parliament from restricting itself in any way.
Additionally, I believe the psychological difference between a legal constitutional change and one you deem illegal would be massive. It would take much more than a simple supermajority to succeed with such a change, else civil unrest would be the probable result.
I agree with you on both counts. There’s a vast gulf between what is theoretically possible and what is actual or probable. The edge cases I’m referencing always emerge after seismic shifts in the social fabric—whether rapidly through unexpected war or more gradually via sustained economic instability and the rise of populism.
Notably, the latter seems to be unfolding in some modern democracies. What’s new in this dynamic is the role of contemporary digital communication technologies, particularly their use in mis- and disinformation. These tools enable profound social disruption—often translating into political upheaval—at a fraction of the cost of war. By aligning economic and social tensions with a precision-targeted disinformation campaign, one can manufacture dramatic effects with startling efficiency.