Franke: Does the Constitution Have a Loophole?

May 11, 2022

by Mark Franke

I suppose I can be forgiven for relapsing into occasional geezer mode, given my advanced age and deteriorating mental capabilities. Then again, there really is no excuse for letting it happen too often — or even at all.

It helps to look for what is still positive in our rancid, rage-driven society and such positives can be found. I was reminded of this several weeks ago when I was privileged to serve as a judge in the American Legion’s National Oratorical Contest.

The Legion has multiple emphases for its programming. One is Americanism, under which this event falls. This is how the contest works:  High school speech teachers are asked to encourage their students to write and deliver ten-minute speeches on some aspect of the United States Constitution. Local American Legion posts help publicize the contest and sponsor their local students in regional competitions, thirteen of these occurring in Indiana. Students compete at two regional levels and then at the state level for the opportunity to represent Indiana against other states at national.

At each level the contestants deliver their ten-minute prepared speech and then are given a blindly selected topic, usually based on one of the Amendments, with five minutes to prepare an extemporaneous, five-minute speech. They know in advance which Amendments are in play but not which one will be drawn for them.

Students are judged on both substance and style. Did they present their argument coherently and convincingly?  Were they easy to follow, with appropriate voice characteristics and physical gestures? Did they meet the time limit?  Was the Constitution prominent in their speech?

At the national contest I helped judge two speeches by each of 12 contestants. These kids know their Constitution, certainly the sections they addressed. There was only one instance when I questioned a fact used in support of an argument.

The range of topics for the prepared orations was extensive and covered some topics not usually addressed.  For example I heard a defense of property rights as guaranteed by the III, IV and XIV amendments. Property rights are denigrated by many today as a barrier to the left’s concept of social justice so this was encouraging to hear from a young person.

Another student argued for the importance of citizen juries as required by the V, VI and VII amendments. She cited James Madison as equating the duty of jury service as important as voting.  Her contention that as much as 90 percent of jury calls result in no-shows in some jurisdictions is hard to believe but my subsequent research provided nothing to gainsay her regarding either Madison’s quote or the no-show statistic.

Perhaps the speech that has stayed with me the longest, for good and for bad, was one on the inherent self-destructive potential of Article V. This is the “how to amend the Constitution” article, one that theoretically can be used to destroy our democracy in favor of a dictatorship by a small, temporary majority.

I learned from the speaker that this ostensive flaw was discovered by Kurt Gödel, a logician who called this an “inner contradiction.”  His theory now bears his name as the Gödel Loophole. Unfortunately Gödel never got around to proving this theory so speculation continues.

What did Gödel discover?  Some believe Article V could continually be amended to weaken itself to the point of irrelevancy. Others fear the calling of a constitutional convention of the states, the other method for amendments, could fundamentally alter American liberties. Recall that the first Constitutional Convention quickly abandoned the idea of merely amending the Articles of Confederation and composed a new document out of whole cloth.

Why was Gödel worried about this? He was an immigrant from Austria after the Anschluss with Nazi Germany. He cited the Enabling Act of 1933 used by the Nazis to suspend the constitution, a constitutionally legal ploy but one with disastrous effect.

Can that happen here?  Of course not, or so I tell myself. But then I have seen things in the last several years that I never imagined could happen here either.

Judging the contest took a day of my time but I came away with renewed respect for these young people and their willingness to undertake the work required. These kids all spoke positively about the Constitution and its importance and relevance today. Sure, they knew their audience—veterans and their families—yet one could not but observe their sincerity. I can hope, with good reason, that their study of the topic instilled a love of country rooted in our founding document.

All participants received scholarships, with more than $200,000 being distributed. These kids will head off to college in the next year or so and should serve to leaven the loaf of wokism running amok on campuses today. That alone is worth the American Legion’s scholarship money.

Mark Franke, M.B.A., an adjunct scholar of the Indiana Policy Review and its book reviewer, is formerly an associate vice-chancellor at Indiana University-Purdue University Fort Wayne.


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