F.E. Guerra-Pujol (Barry University – Dwayne O. Andreas School of Law; Pontifical Catholic University of Puerto Rico) has posted Gödel’s Loophole on SSRN. Here is the abstract:
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Kurt Gödel (who is considered the greatest logician since Aristotle) reportedly discovered a deep logical flaw in the US Constitution. What was it? In this paper, the author revisits the story of Gödel's discovery and, in the spirit of Gödel, identifies several serious flaws or “design defects” in the Constitution. Most of these design flaws, however, are “non-Gödelian” or non-logical flaws. Nevertheless, the author identifies one particular flaw in the Constitution that qualifies as a “Gödelian” flaw: the possibility of "downward" amendments to the amendment clause or "self-amendment."
The paper is divided into five parts. Following a brief introduction, Part 2 retells the story of Gödel’s lost discovery in greater detail and tries to answer a subsidiary question: why is there no formal record of “Gödel’s Loophole”? Next, Part 3 reviews several alternative theories of Gödel’s lost discovery and explains why these alternatives are probably not what Gödel’s had in mind. (In brief, these alternative theories are off the mark because they ignore Gödel’s interest in logical contradictions and the problem of self-reference.) Part 4 then presents the author’s reconstruction of Gödel’s Loophole. In summary, Gödel’s discovery may be divided into several steps. First, the constitution contains a finite number of legal provisions or “constitutional statements," and one of these statements contains an amending clause, which permits the people to amend to the constitution (when certain conditions or procedural steps are met). Second, since there are no limits on the amending power, then the amending power can be used to amend itself, and third, if the amending clause can amend itself, then all express and implied limitations on the amending power might be overcome through a constitutional amendment. Part 5 concludes.