When Constitutions Took Over the World

Historians in the News
tags: legal history, constitutions

Jill Lepore, a New Yorker staff writer, received her Ph.D. in American Studies from Yale in 1995 and is the David Woods Kemper ’41 Professor of American History at Harvard University.

In 1947, Kurt Gödel, Albert Einstein, and Oskar Morgenstern drove from Princeton to Trenton in Morgenstern’s car. The three men, who’d fled Nazi Europe and become close friends at the Institute for Advanced Study, were on their way to a courthouse where Gödel, an Austrian exile, was scheduled to take the U.S.-citizenship exam, something his two friends had done already. Morgenstern had founded game theory, Einstein had founded the theory of relativity, and Gödel, the greatest logician since Aristotle, had revolutionized mathematics and philosophy with his incompleteness theorems. Morgenstern drove. Gödel sat in the back. Einstein, up front with Morgenstern, turned around and said, teasing, “Now, Gödel, are you really well prepared for this examination?” Gödel looked stricken.

To prepare for his citizenship test, knowing that he’d be asked questions about the U.S. Constitution, Gödel had dedicated himself to the study of American history and constitutional law. Time and again, he’d phoned Morgenstern with rising panic about the exam. (Gödel, a paranoid recluse who later died of starvation, used the telephone to speak with people even when they were in the same room.) Morgenstern reassured him that “at most they might ask what sort of government we have.” But Gödel only grew more upset. Eventually, as Morgenstern later recalled, “he rather excitedly told me that in looking at the Constitution, to his distress, he had found some inner contradictions and that he could show how in a perfectly legal manner it would be possible for somebody to become a dictator and set up a Fascist regime, never intended by those who drew up the Constitution.” He’d found a logical flaw.

Morgenstern told Einstein about Gödel’s theory; both of them told Gödel not to bring it up during the exam. When they got to the courtroom, the three men sat before a judge, who asked Gödel about the Austrian government.

“It was a republic, but the constitution was such that it finally was changed into a dictatorship,” Gödel said.

“That is very bad,” the judge replied. “This could not happen in this country.”

Morgenstern and Einstein must have exchanged anxious glances. Gödel could not be stopped.

“Oh, yes,” he said. “I can prove it.”

“Oh, God, let’s not go into this,” the judge said, and ended the examination.

Neither Gödel nor his friends ever explained what the theory, which has since come to be called Gödel’s Loophole, was. For some people, conjecturing about Gödel’s Loophole is as alluring as conjecturing about Fermat’s Last Theorem.

In 1949, the year after Kurt Gödel became a U.S. citizen, Linda Colley was born in the United Kingdom, a country without a written constitution. Colley, one of the world’s most acclaimed historians, is a British citizen and a C.B.E., a Commander of the Order of the British Empire. (If there were a Nobel Prize in History, Colley would be my nominee.) She lives in the United States. For the past twenty years or so, she’s been teaching at Princeton, walking the same grounds and haunting the same library stacks that Gödel once did, by turns puzzled and fascinated, as he was, by the nature of constitutions. “I came to this subject very much as an outsider,” she writes in an incandescent, paradigm-shifting new book, “The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World” (Liveright). “Moving in the late twentieth century to live and work in the United States, a country which makes a cult out of its own written constitution, was therefore for me an arresting experience.” Colley has upended much of what historians believe about the origins of written constitutions. Gödel’s Loophole is all over the Internet; you can find it on everything from Reddit to GitHub. The graver the American constitutional crisis, the greater the interest in the idea that there’s a bug in the constitutional code. But, for genuine illumination about the promise and the limits of constitutionalism, consider, instead, Colley’s Rule: Follow the violence.


Read entire article at The New Yorker

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