My friend Eugene Jen, whose restlessly curious mind makes him a rich source of interesting material, has sent along a link to a story about the great logician Kurt GÁ¶del. Apparently GÁ¶del, in preparing for his U.S. citizenship examination, made a characteristically analytical reading of the document, and realized that despite the Framers’ aversion to tyranny, they had left in place a weakness that might lead, under the worst of circumstances, to the establishment of a dictatorship. It was GÁ¶del’s intention to mention this at his examination, but his good friend Einstein, who had accompanied him to the proceedings, talked him out of it.
Bob Wyman, commenting in an email on the note from Eugene, suggests that what GÁ¶del probably had in mind was Article III, Section 2, which says that
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
This means that a willing Congress can limit the jurisdiction of the Court as it sees fit, and one can imagine how this could render the Court powerless to interfere with a sufficiently well-supported Congressional move toward dictatorship. Section 2 also gives Congress the power to determine where trials shall be held; as Bob points out, this means that the legislature could declare that “all trials must be held on the head of a pin.”
Over the years efforts have been made by various interest groups to use this feature of the Constitution to reverse blows dealt them by Supreme Court rulings, but I have not, so far, found much discussion of what seems to me a much larger matter: that this might be a serious separation-of-powers vulnerability that could, maliciously exploited, be a way of accomplishing what to many is unthinkable – the establishment of a dictatorship here in the United States.
Why was this section of the Constitution written this way? Was this seen as a “check” on the power of the Court, with the assumption that the Congressional majorities and state ratifications required for the Constitutional modifications neeeded to establish a U.S. tyranny would be unobtainable? Constitutional law is something I know very, very little about; perhaps some of you who know the territory a little better might like to comment on this.
2 Comments
Malcolm,
I found the piece from Reddit. I think the mind emerged from hive of users of Reddit is the real force. I am just a facilitator with curiosity. In the comment of reddit entry, it points two URLs to different answer to Bob’s .
http://leiterreports.typepad.com/blog/2005/02/jerry_dworkin_p.html and http://www.earlham.edu/~peters/writing/psa/sec16.htm#B
A quote from Leiter Reports as following:
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Peter Suber (Philosophy, Earlham College) provides a nice description of the basis of GÁ¶del’s conclusion: see section 16(B) of his book, The Paradox of Self-Amendment: A Study of Law, Logic, Omnipotence, and Change. Suber has posted the entire text of his book on-line: http://www.earlham.edu/~peters/writing/psa/index.htm
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Thanks, Eugene. We can all take a look. It appears that the fact that the Constitution describes the procedure for its own modification might be what GÁ¶del was thinking of; given the nature of his work it isn’t surprising that he would immediately focus on such a recursive feature.