Balkinization: If we had a rational system of government

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# posted by

One of my favorite writers here is Sandy Levinson because of his willingness to not be obsequious towards the Founders. But I don't get this one. There are many issues out there, even many important ones. If a sitting President of Party X finds himself rebuked by not only Congress but a majority of his own party on any single one of these I don't understand why that would mean he's 'discredited' in some fundamental or total way, even within his party. He still would be in agreement with them on over 9 out of 10 matters. It would seem very inefficient to remove a President over that less than 1 out of 10 occurrence.

Whatever other faults I think our system has (such as equal representation in the Senate, which is egregious in my opinion), I rather like the fact that the Executive is not subject to removal for every time he essentially loses a House or Senate vote among his own party.

# posted by

Mista Whiskas : 12:58 PM

"If we had even the kind of quasi-parliamentary system that I have defended, Obama would be forced to resign because, by definition, both of houses of Congress would have displayed "no-confidence" in him by more than 2/3 vote."

If we had that system, his party would not likely display "no-confidence" in him on this issue, especially if his position on one matter (if very important) was the deciding factor like that. I'm with Mr. W on not thinking this issue of so central importance to warrant that anyway. Why would disagreement especially under our system that encourages divided government so "discredit" the President if s/he clashes with Congress like this? Perhaps, something like immigration. Even then, I don't think so -- I think it would have to be a collection of things or something truly special. Not this. Cf. Congress clashing with Wilson over League of Nations and the end of WWI. THAT sort of thing could lead to the end of an administration

I also respect Sandy Levinson's analysis and am open to his strong opposition to certain current constitutional provisions (a bit more honest than some who similarly disagree but refuse to admit to it) but again find myself in opposition to his analysis of where that leads us.

# posted by

Joe : 1:38 PM

Indeed, I don't particularly like the present administration, on many counts, but it seems peculiar to demand the President be replaced on account of disagreeing with Congress on one issue. In our system the President is an independent branch, he's entitled to disagree with Congress.

# posted by

Brett : 2:44 PM

"So the opponents of the deal logically have to repudiate the entire Obama Administration, including not only Obama and Biden, but, obviously, John Kerry and everyone else who negotiated the deal. That's just what a no vote means."

I don't understand what is meant by "repudiate" in this sentence. Does mean "disagree with"? Because that is all that "a no vote means."

Does it mean "reject the legitimacy of"? Because that, emphatically, is not "what a no vote means."

In the American system, a member of Congress is not a member of the administration and his or her vote on a bill is not a statement of confidence or no confidence in the government. A member may or may not belong to the same part as the president, but that is a matter of no constitutional relevance. Voting "yes" or "no" on a particular bill is not an endorsement or a repudiation of the administration, because endorsing or repudiating the administration is not something Congress ever does. (Impeachment, which is a trial for alleged criminal activity, is not at all the same thing.) A member is free to vote with the President today (say, on fast track) and the exact opposite way tomorrow.

Even in the traditional English parliamentary system, BTW, not every vote on legislation was a vote of confidence/no confidence. And since the enactment of the Fixed-term Parliaments Act 2011, a vote on legislation is never a "repudiation" in the strong sense, because the House of Commons can no longer force early elections by voting on legislation, and can do so only by an express vote on the resolution, "This House has no confidence in Her Majesty's Government."

# posted by

Unknown : 3:06 PM

I appreciate the comments, which are uniformly thoughtful (and critical, I might add). I certainly agree that losing on one vote should not raise serious "constitutional questions." But I don't think the Iran deal is just another program. If one is sincerely opposed to it, it rests on a considered judgment that the present government can't be trusted to engage in the first necessity of Hobbesian/Lockean politics--to preserve security. Furthermore, some opponents presumably (sincerely) believe that it raises the probability of a disastrous war in the future (when Iran gets nuclear weapons. I disagree with this judgments, but they do seem to be altogether more important than a belief that Obama's trade program will be bad for the American economy (a belief that I share about 1/3 of the time).

If I shared Netenyahu's views (which, obviously, I don't), I would go to bed as depressed by the fact that Obama is President and Kerry is Secretary of State as I do with regard to the fact that Netenyahu continues to be Prime Minister of Israel. He is basing his whole campaign around the notion of "existential threat." If one believes that Obama and his Administration in effect are indifferent to such threats (to our own country, and not only to Israel), then they should be removed from office, and we should lament that we live in a system that gives them tenure for another 16 months. The advantage of a parliamentary system is that one can fire leaders in whom one has lost confidence on "existential" issues.

I would not be making these arguments--or offering these thought experiments--if Congress had a veto-proof majority to repeal Obamacare. I think that would be disastrous, but it doesn't raise the same level of fundamental question about one's trust in officials to protect us against war and the threat of war.

Lincoln could fire McClellan, but we have no way to fire a commander-in-chief in whom we have similarly lost confidence. I think, in the 21st century, that that is a problem.

Again, I appreciate the courtesy (and pointed criticisms) of my interlocutors.

# posted by

Sandy Levinson : 3:21 PM

This is not to trivialize the importance of the issue.

https://www.youtube.com/watch?v=Nw9eV6K_yHg

But, it isn't Lincoln/McCellan either. We were in a Civil War then. Heck, even Israel doesn't have a similar amount of territory in active rebellion with Iranian forces controlling that area. The test of "one's trust in officials to protect us against war and the threat of war" is rather broad. Why is not the health of our people and the well being of our economy not as important in various ways? POTUS has an important role here in administration, the veto etc.

A "no confidence" vote is advocated. I don't think saying the specific Iran measure is not enough here necessarily takes the concept off the table. The precedent surely cited here is the latter part of Bush43's Administration. But, why should we change there? A Democratic Congress was voted in providing the power to block funding and so forth regarding bad Iraq policies. The Bush Justice Dept. tempered the extravagances of various executive power claims. A path toward an exit strategy was set forth. Impeachment was still possible too and if the will was present there was actual high crimes and misdemeanors available for removal, including related to his commander-in-chief role. Cheney too.

We don't have a parliamentary system though and that has problems. OTOH, our system has various positives too. I don't think the Iran deal etc. is an "existential threat" there. Lincoln and the Civil War it is not.

# posted by

Joe : 6:56 PM

"If one is sincerely opposed to it, it rests on a considered judgment that the present government can't be trusted to engage in the first necessity of Hobbesian/Lockean politics--to preserve security." I think this is the wrong characterization. Even the opponents of the deal dont think that Iran could (even with nuclear weapons) endanger the security of the US - they think that Iran is a danger to our allies (Israel and the gulf Sunni states). Protection of the security of allies is not a violation of the social contract.

Furthermore, the problem with the analogy is that with a separation of power structure congress is not (necessarily) the party of the president. In a parliamentarian system (where the PM has to have the support of the parliament to be PM) a defeat means that his supporters no longer support him - so he looses the basis for legitimate authority. In the presidential system the president can loose in congress (even with his own party) and still have the support of the voters that elected him (and fight for the next policy he wishes to promote) - since he has an independent mandate. I don't agree that the parliamentary system is superior - your argument reinforces my view.

# posted by

Daniel Moussatche : 7:02 PM

"Chamberlain could be fired and replaced by Churchill."

Chamberlain was not fired. After the fall of Norway, he won a vote of no confidence and could have remained Prime Minister but he made the personal decision that the country needed a unity government. When Labor indicated that it would not join a government under his leadership, he resolved to resign. He wanted to see Halifax form the new government, but Halifax expressed some reluctance to become PM, and so Chamberlain decided to ask (i.e. instruct) the King to call upon Churchill. Chamberlain could have asked the King to call upon Halifax, who would have become PM and would likely have negotiated a peace amounting to surrender. (We know this because after Dunkirk, Halifax actually advocated in the War Cabinet for a negotiated peace on humiliating terms.)

So the Chamberlain/Churchill transition tells us less about the benefits of parliamentary government than you might imagine, and more about what proved to be the extraordinary good luck of the British (and the world) in May 1940.

# posted by

Unknown : 8:22 PM

"I certainly agree that losing on one vote should not raise serious "constitutional questions." But I don't think the Iran deal is just another program."

I think the Iran deal does raise serious constitutional questions, such as, "Can you enact a treaty by a regular majority vote taking place before it is written, by just pretending it isn't a treaty?"

And, if enough members of Congress think the policy it represents is bad enough, it could be cause for impeachment.

But the President favoring bad policy is not a constitutional issue. It simply isn't. The Constitution doesn't mandate good policy. Really execrable policies can be constitutional, phenomenally good policies can be unconstitutional.

I wouldn't go so far as to say that the merit of policy is *entirely* orthogonal to constitutionality, in as much as some really bad policies are constitutionally, explicitly prohibited. But it's close to that.

# posted by

Brett : 8:23 PM

"it rests on a considered judgment that the present government can't be trusted to engage in the first necessity of Hobbesian/Lockean politics--to preserve security."

I think there has to be room even on foreign policy and national security issues for someone to think someone they disagree with is wrong but reasonably and not disastrously so.

But I think I appreciate Mr. Levinson's further point more after his elaboration. The point makes me think of the old film The Caine Mutiny. What if most of the officers on the deck thought the commander was leading them to disaster, shouldn't they be able to remove him by some kind of supermajoritarian process, tempered perhaps by a strong tradition of hesitancy to invoke this choice? If so, our governmental system, by analogy, doesn't really allow for this. But again, I'm not sure that such a mechanism wouldn't be misused more than it would be wisely used, and further this is not necessarily one of those situations for a no voting Democratic Party Senator.

# posted by

Mista Whiskas : 8:31 PM

" If so, our governmental system, by analogy, doesn't really allow for this."

Sure it does. If a majority of the House, and 2/3 of the Senate, think that, they can remove the President. There's no limit to the application of impeachment, save what there are the votes for.

# posted by

Brett : 8:42 PM

The text of the Constitution and long practice has provided limits on what warrants impeachment -- high crimes and misdemeanors. So, e.g., the idea the President is a dim bulb, has lousy policies or is simply managing things badly is not understood to be impeachment worthy. As a matter of raw power, such things might be possible. To be silly, the color of his/her hair or taste in fashion might be too.

But, the "system" in place -- the text and how it has been applied -- does not recognize a "no contest" mechanism of impeachment. Brett's open-ended view of text* is noted. And, there is also no formal barrier going by the text alone to subject the impeachment process to no judicial review, to make it a political question either. If the Impeachment Clause is going to used as a no contest mechanism, the courts might alter its current policy. Perhaps not, given the reality of the situation, in respect to the President, but perhaps not for other officers.

===

* The "government system" to him, e.g., has restraints on the meaning of "interstate commerce," even if the Congress says differently. They could pass such an allegedly unconstitutional law, but it would be a violation of "the government system" to do so. This I take it is Mr. W's usage.

# posted by

Joe : 9:16 PM

"And, there is also no formal barrier going by the text alone to subject the impeachment process to no judicial review,"

There's no formal barrier going by the text alone, to subjecting the Presidential veto to judicial override, either. But at some point you have to admit that the failure to mention something that would have been mentioned if intended is decisive.

When you say the text of the Constitution and long practice, long practice is doing all the work there, as the Constitution doesn't define high crimes and misdemeanors. As noted constitutional scholar Kurt Godel pointed out, the Constitution can't set out formal rules for everything. But that's not an excuse to use the blank spots as an excuse not to follow the stuff that's written down.

The House charged the President with malingering and chewing gum in the Oval office, the Senate convicts, he's out of there. And the judiciary has no say in the matter at all, unless they want to accompany him.

# posted by

Brett : 5:57 AM

Jack Balkin's rejoinder (with comments disabled) brings out how much of the opposition to the Iran deal is kabuki, posturing for the conservative political base in the knowledge that the deal will go through. Parliamentary systems are not immune from this, but the mechanism of the vote of confidence greatly limits its scope. You either bring down the government or you leave it in power. The vote of confidence is automatically a global vote on the entire behaviour of the government, even though it will usually be triggered by one high-profile issue.

# posted by

James Wimberley : 8:58 AM

Chuck Shumer, reliable partisan hack for the Democratic party, just came out against the deal. I think we can safely say he's not posturing for the conservative political base.

Opponents of the deal are as entitled to be taken seriously as it's advocates.

# posted by

Brett : 9:11 AM

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# posted by

Joe : 9:48 AM

"the failure to mention"

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution" ... why is impeachment as compared to any number of things not covered by the "text" alone here?

If a person is impeached and removed, the person is not only denied a paid position and given a mark of infamy but Congress can also bar the person from U.S. office/position in the future. Why is this by the "text" clearly not covered as compared to, e.g., Congress determining for itself the meaning of "interstate commerce." Marbury v. Madison itself perhaps was wrongly decided given presidential appointment power is broad even if vested property rights were at issue. Sandy Levinson is not a big fan of the ruling after all and Shag questions just what the text 'says' about judicial review at all.

So, "text" alone cannot tell us these things, and even U.S. v. Walter Nixon wasn't unanimous -- a few justices felt in certain extreme cases that impeachment could be subject to judicial review. The matter is debatable. The "stuff written down" is open-ended in loads of ways. Yes, "long practice" etc. is necessary to interpret that. If "high crime and misdemeanor" = "the stuff written down" -- means "chewing gun in office," why Congress cannot determine chewing gum can be regulated as necessary and proper to regulate commerce among the states w/o judicial review is unclear.

Now, I don't think either is "really allowed" -- as Mr. W. says -- but you seem to only care about one of the two. Text matters. At times.

---

"Hacks" of each party have various interests and oppose the President in power for various purposes, some good, some bad. They "posture" at times.

# posted by

Joe : 9:51 AM

Brett, I would think that the text 'high crimes and misdemeanors' would suggest the causes be limited to, you know, alleged criminal behavior. But of course that wasn't really the case with the Johnson trial so I take your point as a historical matter.

# posted by

Mista Whiskas : 10:46 AM

It was certainly intended to *include* criminal behavior, or else the following would have been pointless:

"but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law."

However, unless you think they had in mind murder and parking tickets, I suggest that in this instance "misdemeanor" means misbehavior, not a criminal offense falling short of a felony.

I don't believe that impeachment is subject to judicial review, because impeachment isn't a cause in equity or law. It's not equity, because holding office is not a personal posession or entitlement, even if the position does come with a salary.

And it is established pretty clearly that neither is impeachment a legal proceeding. Ask judge Hastings about that.

# posted by

Brett : 11:01 AM

"I don't believe that impeachment is subject to judicial review, because impeachment isn't a cause in equity or law."

Impeachment itself isn't, but what if the President were to bring an action seeking to enjoin Congress from proceeding with a trial on the ground that he'd been impeached improperly?

I expect you'd want the clause interpreted according to its original intent, so let's assume the President could establish that his impeachment ran contrary to that. Are you saying that the Court couldn't hear a case "arising under the Constitution"? And if you do think it should decline to hear the case, and believing that the impeachment was improper, what's your solution?

# posted by

Mark Field : 12:47 PM

I refer you again to that constitutional scholar, Kurt Godel. Theoretically impossible to account for all potential circumstances in a constitution.

Basically, in as much as the impeachment process is designed to allow Congress to remove a bad President, where "bad" is defined by Congress, it makes no sense to permit the President to challenge the legality of the proceeding. If half +1 of the House and 2/3 of the Senate think the President has got to go, he's got to go.

It's not a legal proceeding, so the courts have no say in the matter. No more than they have any say if one of the houses of Congress decide to expell one of their own members. (Which they can do, and the courts have no say in.)

# posted by

Brett : 12:59 PM

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# posted by

Bart DePalma : 1:48 PM

Sandy:

The Constitution grants the President the power to negotiate treaties, but does not allow him to legally bind the nation without the approval of the Senate. The system is working here.

As is his practice on most issues, Mr. Obama unilaterally entered into this agreement to surrender to Iran without so much as a farethewell to the Senate. He knew that super-majority of Republicans and Democrats would vote it down.

Instead, Obama intended to treat his deal with Iran as an extra-constitutioonal "executive agreement." However, such an agreement has zero legal effect on the Unied States and is little more than an expression of Obama's personal foreign policy and can (and should) be reversed by the next president as soon as he or she takes office.

The upcoming congresional vote is legaly meaningless and is nothing more than political kabuki theater to give the GOP and a sunstantial numnber of Democrats the chance to go on record voting against Mr. Obama's surrender to Iran.

# posted by

Bart DePalma : 1:48 PM

Brett:

We disagee on applying the remedy of impeachment here.

A "misdemeanor" as used in the Impeachmen Clause does mean general wrongdoing rather than a minor crime and would include things like violating the Constitution. However, the Treaty Clause grants Obama the power to negotiate treaties, even exceeding bad agreements like surrendering to Iran.

Obama will not cross the line into an impeachable "misdemeanor" unless he refuses to enfoce the current statutes imposing economic sanctions where the statutes themselves do not grant the president discretion in applying the sancitons.

# posted by

Bart DePalma : 1:57 PM

"However, the Treaty Clause grants Obama the power to negotiate treaties, even exceeding bad agreements like surrendering to Iran."

I'd absolutely agree with that. Where we differ is on the question of whether Congress is, legally, entitled to impeach the President over policy disagreements. My view is that Congress is entitled to impeach the President over absolutely anything. "Misdemeanor" isn't being used her in a legal sense, it means anything the President does that enough members of Congress find objectionable. If they decide a President is hostile to the United States' welfare, they are not required to wait until he actually breaks a law, or violates the Constitution, to remove him.

A bit academic, anyway, this President could murder someone on live TV and not be impeached, or at any rate convicted. 33+ Democratic Senators regard impeachment as a purely political matter, and Obama is acquitted in advance by the "D" after his name. I can't imagine anything short of his murdering a Democratic Senator on the floor of the Senate that would change their minds about that, at this point.

# posted by

Brett : 2:10 PM

Not to mention that the American people would definitely object to an attempt by rightwing lunatics to launch a de facto coup.

# posted by

Anonymous : 3:23 PM

A coup represents an *illegal* change of government, and by definition, constitutional impeachment isn't illegal.

Besides, if you need a majority in the House, and 2/3rds of the Senate to do it, you probably do have the people on your side; Do you suppose Republicans ended up in control of most state legislatures by being unpopular?

# posted by

Brett : 3:50 PM

Besides, if you need a majority in the House, and 2/3rds of the Senate to do it, you probably do have the people on your side; Do you suppose Republicans ended up in control of most state legislatures by being unpopular?

# posted by Blogger Brett : 3:50 PM

You definitely don't have the people on your side for a coup right now.

# posted by

Anonymous : 4:02 PM

Brett relies on Kurt Godel, who he describes as a "constitutional scholar." I understand that while Godel has voiced opinions on the Austrian and American constitutions, his academic fame seems to be as a logician. It seems he claimed a loophole in the American Constitution that could permit for a dictatorship. But apparently Godel did not spell out this loophole, which if it existed might trump (no, not "The Donald") Brett's impeachment scenario. Recall Oliver Wendall Holmes, Jr.'s "The life of law has not been logic. It has been experience." So bringing a logician to a constitutional battle may be somewhat like bringing a knife to a gunfight.

I have avoided getting embroiled in this discussion, especially after Jack Balkin's responsive post, as this matter has been a disagreement between him and Sandy going back to at least the BU Law School symposium a couple of years ago on political dysfunction and the Constitution's role, a subjected I may have commented on a tad too much in past threads.

Also, I am working on post Fox TV GOP Clown Limo debate doggerel in my shameless efforts to be designated Poet Laureate in the next administration, whether Democrat, Republican or Independent [T-RUMP?].

# posted by

Shag from Brookline : 4:53 PM

James Wimberley wrote, "Parliamentary systems are not immune from this, but the mechanism of the vote of confidence greatly limits its scope. You either bring down the government or you leave it in power."

As I explained above, this is not so. See, e.g., https://en.wikipedia.org/wiki/Motions_of_no_confidence_in_the_United_Kingdom#Constitutional_practice

# posted by

Unknown : 4:56 PM

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# posted by

Bart DePalma : 6:00 PM

Jack can see that Obama and the Democrats are moving the United States away from the old constitutional order, but he is mistaken that they intend to replace it with another constitutional regime. Rather, we are moving towards a dictatorship outside of any constitutional bounds. However, the Iran deal is not yet a good example of this destruction of the Constitution (in contrast to rewriting and refusing to enforce the Obamacare and immigration statutes).

The Constitution empowers the President to negotiate only one type of foreign agreement - a treaty - and the resulting treaty has no legal effect without approval by two-thirds of the Senate.

Obama has not claimed that his "excutive agreement" with Iran has the legal effect of a Senate approved treaty, but the administration has suggested that it is enforceable under international law.

If Obama takes the next step and refuses to enforce the laws of Congress imposing sanctions on Iran, THEN Obama has again violated the Constitution's Faithful Enforcement and Treaty Clauses by enforcing his agreement as a treaty.

The only means to stop this descent into dicttaorship is impeachment, but as Brett and bb have correctly noted, the Democrats will refuse to impeach their president under any circumstances and the GOP establishment buys the baseless claim that the voters would punish them for actually using the impeachment remedy.

# posted by

Bart DePalma : 6:02 PM

I am not familiar with Kurt Godel and looking him up don't see much of a reason to be as compared to any number of others who appear more qualified at constitutional law. The statements of his alluded to however are basic enough. So, it seems neither here or there except that it seems an arbitrary appeal to authority.

Anyway, there are lots of cases (Marbury was one) where the matter was the legitimacy of the denial of a government office. If Brett wants to go his own way on the matter, fine, but that specifically isn't a reason for it not to be justiciable. If an office is denied via an unconstitutional procedure, it is generally a matter for judicial review. Impeachment was deemed not, but the bare text won't tell us this. BTW, the presidential veto doesn't have a limit like "high crime" etc. so is not that good of a comparison though one early view (as noted in Prof. M.'s book on Andrew Jackson) was that it did have implicit ones.

Also, not sure why "misdeameanor" is "not being used in a legal sense." His use of text, original understanding, history etc. is plastic enough for it to be pointless, quite honestly, to debate it too much, but to the degree we care, a basic understanding was that the provision was not a "misbehavior" as in "no contest" provision. If we are supposed to care about text and history, Mr. W.'s original statement stands as correct.

And, let's not forget presidents aren't the only ones impeached. Anyway, Andrew Johnson was charged with breaking a law (Tenure of Office) whatever the "subjective" reason for their actions might have been ala many a police officer.

# posted by

Joe : 6:52 PM

"and the GOP establishment buys the baseless claim that the voters would punish them for actually using the impeachment remedy."

I don't think it's all that baseless, in the present media environment, where most of the media are operating as an unpaid public relations firm for the Democratic party. Mind, this is because of the almost inexplicable failure of conservatives to buy some of that media in the face of incredibly low prices. But it's still a real issue.

Joe, my reference to Godel as a constitutional scholar was a bit of a joke, as what I was really talking about was the incompleteness theorem. Thought that was obvious, but perhaps not everyone is familiar with it.

# posted by

Brett : 8:47 PM

Brett:

The GOP House impeached Clinton for perjury and obstruction of justice, the Democrat media howled and the voters returned the GOP majority for almost another decade.

It is a pity for the nation that the GOP cares more about what the Democrat media thinks than its oath to protect the Constitution.

# posted by

Bart DePalma : 11:02 PM

Yes, Brett, your reference to Godel was a joke, but most likely unintentional as the joke was on you. Perhaps for engineers it is common to cite authority that is irrelevant to the issue at hand. As to what you were "really talking about" - the incompleteness theorem - which is a claim to fame for logician Godel - perhaps you can explain - or provide a credible cite - how this mathematical/philosophical theorem(s) applies to interpreting/construing the Constitution relative to this post.

# posted by

Shag from Brookline : 5:46 AM

Well, Shag, as I was a computer engineering major in college, I might not find formal logic quite so incomprehensible as you assume. Yes, the joke was deliberate, and I would have expected you to have figured that out.

To the extent that the law is a formal system, the incompleteness theorem applies. The law can not dictate the outcome of every situation you might encounter under it.

# posted by

Brett : 1:02 PM

Yes, Brett, your 1's and 0's exposure apparently qualifies you as a cross-disciplined constitutional scholar

You actually made reference to Kurt Godel as a constitutional scholar in two separate comments, one at 5:57 AM and another at 12:57 PM. I guess you thought it was such a good joke that it bore repeating. By the way, neither comment was directed to me. But for my comment, perhaps you would have continued to repeat such a great joke. I guess in your mind citing such authority of Godel should have been obvious to one who has studied the law.

I'm not aware that any of we, the usual suspects, have suggested that the Constitution completely covered every aspect of the law governing America. Many of us know of the Constitution's reference to a "more perfect union" suggesting room for improvement. So how is the incompleteness theorem so critical to the discussion at this post? Or is this a name dropping affection on your part? Or perhaps all your comments are interwoven with jokes? I don't mean to suggest that I take you seriously, as other than as "a bubba from michigas."

But I don't take you at your word that "the joke was deliberate." Even a computer engineer can be an advocate.

As to your exposure to "formal logic," I again refer to the constitutional scholar Oliver Wendell Holmes, Jr.'s quote on the life of the lawI included in an earlier comment.

As for humor, the stories of Godel's preparing for and becoming a U.S. citizen with Einstein and Morgenstern as witnesses are quite funny. But that's irrelevant to this post. Now what was that loophole in our Constitution that Godel felt could turn America into a dictatorship? Maybe Pres. Obama found it?

# posted by

Shag from Brookline : 3:54 PM

With some Googling I came across an 82 page article by John F. Muller "The Constitutional Incompleteness Theorem" inspired by Godel. I could not copy/paste the URL. I looked through the table of contents and only a bit of scanning. I did not download as I have to limit my reading because of eyesight issues. But it appears that the article is much deeper than Brett's simplistic:

"To the extent that the law is a formal system, the incompleteness theorem applies. The law can not dictate the outcome of every situation you might encounter under it."

It isn't clear from the Googling that legal academia is that much into the application of the theorem to the law, constitutional or otherwise. Might that suggest the incompleteness of the legal profession? Maybe Brett, an engineer, can build a bridge to the incompleteness theorem's application to law and constitution. Maybe Brett will read the article and find his pony in there and saddle up. Or maybe the next stage of originalism is "Incompleteness Originalism." (I'm in the process of reading an article setting forth "Farsighted Originalism" adapting both originalism and living constitutionalism); so far it is not identical to Jack Balkin's "Living Originalism.")

# posted by

Shag from Brookline : 9:18 PM

It was certainly intended to *include* criminal behavior, or else the following would have been pointless:

"but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law."

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