111–120 of 134 posts
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Dictators, in general, don't come to power unless some fairly large fraction of people actually want them to.
I've always seen that they come into power with a surprisingly small amount of support.
It's without a doubt amending Article V with Article V; I don't really understand why it's thought of as some mysterious loophole lost to time. Not everything a smart man figures out has to be particularly complex.
It almost certainly involves Article V, but likely not in the trivial "amend Article V to change the 2/3 supermajority to propose an amendment to a simple majority and eliminate the requirement for 3/4 of states to ratify" sense. That would never actually be ratified as states would be loathe to give up their power. My guess is it would first involve the creation of a considerable number of new states under Article I…
A group of states, for instance, could do something silly like hold an ‘election’ via mail-in ballots with no verification of citizenship, residency, etc.
So, you could have a corrupt party in charge of a handful of states take over the Presidency, Senate, and House. And, from that point, it’s a trivial matter to pass legislation ensuring that party’s perpetual power, whether it be through grants of amnesty to millions of non-citizens, or federal laws requiring a method of voting that favors the party, etc, etc.
But, these things could never actually happen, of course.
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It almost certainly involves Article V, but likely not in the trivial "amend Article V to change the 2/3 supermajority to propose an amendment to a simple majority and eliminate the requirement for 3/4 of states to ratify" sense. That would never actually be ratified as states would be loathe to give up their power. My guess is it would first involve the creation of a considerable number of new states under Article I…
This seems like much more of a loophole than just modifying Article V -- You can modify any part of the constitution via amendment, it's like root access. But your scenario here wouldn't require the "actual" states to sign off or would at least override them. Nice post!
This is why there are checks and balances. The laws and constitutions are not rules in a game that can be exploited arbitrarily. There is an intention behind them and law is and should be interpreted in that way. If this loophole exists it probably goes against the intention of the lawmakers and would be struck down by supreme court.
A despot may also pack the Supreme Court to change the rules, although the existing Supreme Court may prevent the court from being packed. I am curious what would happen if all the members of the existing Supreme Court were to suffer an unfortunate accident in this situation. edit: Of course you still need Congress to approve the nominees.
The ruling party just needs to include a few picks from the other party to give the appearance of balance.
Bonus points: the president can then pardon the bomber.
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That's not how constitutional law works, though. Even if someone seizes power by force, the apparent constitutionality of their reign or lack thereof has many implications in international law and for the recognition of the new government, as well as for retrospective assessments, including the validity of the laws enacted by the regime. Dictators put great efforts in making their reign at least look constitutional.
France, for example, has gone through many different constitutions (the current one is from 1958). I don’t think they’re unique in changing up their foundational texts (and don’t forget places like the UK, that have no constitution, and rely on norms) But my point was mainly around popular movements. Not going to comment on international judgement in these circumstances
The Third Republic had actually lasted quite a while. There was definitely a mess before that: monarchy, revolution that created a republic that turned into an empire, then a monarchy again, then a republic again, then the nephew of the original emperor being declared emperor... the 19th century was not a good time to be French. (And I'm leaving out some revolutions and constitutions that didn't go anywhere.)
But after that they really had settled down, until an outside force blew it all up. The 19th century wasn't really all that solid anywhere in Europe. Germany and Italy didn't do any better.
The law is not a formal system, it's a tool for humans to decide how to act. If those humans decide they want a tyranny, no amount of words on paper could ever stop them.
> But in the back of my mind I thought about Llewellyn. I thought about the fact that those principles can't automatically enact themselves, that they only work if the human actors in the system choose to follow them and to demand that others follow them. They persist because the people constrained by them believe themselves to be constrained by them. The Constitution, separation of powers, religious liberty, freedom of the press, an independent judiciary, the rule of law, equality of all citizens: There is a complacent sense in America that these things are independent self-operative checks on power. But they aren't. They are checks on power only as far as they command the collective loyalty of those in power; they require a governing class that cares about law and government and American tradition, rather than personal power and revenge. Their magic is fragile, and can disappear if people who don't believe in it gain power.
https://www.bloomberg.com/opinion/articles/2016-11-09/brambl...
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How is it the halting problem?
How is constitutional law subject to Goedel's Incompleteness Theorem? Everything is computer science, or at least linearly transformable into computer science.
it says you can't write a program to prove every program halts (or doesn't), because you can construct pathological programs to intentionally foil it.
you can certainly prove some programs halt, or don't.
int main(){
return 0;
}
int main(){
while(true){}
}
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(Un)like computers, judges sometimes die and guess who nominates replacement judges.
Judges rarely die in office. What's your point?
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Judges rarely die in office. What's your point?
If you have so much control as to modify the constitution, you can as well appoint the judges that would side with your interpretation.