Gödel's Loophole
en.wikipedia.org
en.wikipedia.org
The Italian constitution is among the most robust and failsafe legal ground truths you can have, yet it’s been made sausages of since day-two
I think Gödel's concern was for the people who might not agree with it installing a dictator, but go "well, it's legal and it's what the founding fathers wrote" and therefore go along with it.
"I don't want the nazis to come into power, but I also don't want brownshirts to assault me and my family, and I'm pretty sure I'll be OK if I keep my head down" is an understandable sentiment, if a bit cowardly.
Hitler gained power because non-Nazi conservatives such as Hindenburg and Papen[0] installed him in power, because they thought they could control him, and because they viewed him as a lesser evil than the socialists and communists who were also jockeying for Chancellorship, and because they saw appointing Hitler as Chancellor as an end to the gridlock in the Reichstag – the result of the election was that Nazis were the largest party but did not hold a majority, but the next two biggest parties, the socialist SPD and the communist KPD, could not unite against them because the KPD was under instruction from Moscow not to cooperate with the SPD. Leading representatives of industry and finance also pressured Hindenburg to install Hitler, because they saw it as an end to the political chaos and also as a defence against the threat of the socialists and communists, who might harm those economic interests if they gained the Chancellorship.
Although Hitler only had 37% of the popular vote, he also had substantial support from Germany's elites. He gained power because he convinced the people with the power to give it to him. Of course, after the war, many of those same elites tried to pretend that their decision to give Hitler power never happened, or that Hitler had somehow forced them into it.
[0] Papen was not a Nazi at the time Hitler came to power. He naïvely thought he could control Hitler and the Nazis; after a while he learned that not only could he not control them, they could control him, but by then it was too late. And then he became a Nazi himself.
Also agree with the point about elite support. Not every supporter counts equally in terms of political support. Even in democracies this is the case.
Not in this case, Weimar Germany used proportional representation.
I personally think that proportional representation is superior to first-past-the-post, but actually you could argue that PR played a role in Hitler coming to power. PR systems encourage multiparty systems as opposed to two-party systems. Multiparty systems can sometimes produce great political instability when nobody has enough seats in the legislature to form the government, and then there can be weeks or months of backroom dealing to try to form a coalition government. It is a scenario which commonly occurs in a number of countries with proportional representation (such as Belgium, Italy, Israel), and it was in that same scenario in which Hitler convinced the President to appoint him to power.
(Germany now and then is a parliamentary republic, the President is a non-political figurehead, the Chancellor is formally chosen by the President but the President is supposed to choose the leader of the largest party or coalition in parliament.)
You could argue that the specific form of proportional representation being used – the list system – was a factor. Countries which use the list system (such as Belgium, Italy and Israel) tend to be more likely to have unstable multiparty systems than countries using milder forms of proportional representation such as instant run-off or single-transferrable vote.
After WW2, West Germany moved away from the pure list system to the current hybrid system in which voters vote both for an individual candidate and a list. That change was inspired by the lessons of the early 1930s.
The shape of the electoral system was possibly a contributing factor to the Nazi's rise to power, but it was only one factor among many. Many other countries had (and still have) the same system and yet they didn't end up with someone like Hitler in charge.
Also even though math is backed by a formal system in theory, in practice no one has time to completely verify mathematicians' work bottom-up from axioms (at least until we become better at proof assistants). Ultimately it comes down to intuition and trust, i.e. these people understand the proof, and I trust them, so I think the proposition holds. And similarly in principle a large group of people can decide that they don't trust the axioms (they are arbitrary in a sense, just like laws), yet it formal methods in math are still useful.
> 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...
If this loophole exists it probably goes against the intention of the lawmakers and would be struck down by supreme court.
It's Common law not French/European law. The intent of the lawmakers is, in common law, more or less completely assumed to be present in the text of the law. French/European courts looks to the context the law was made in and other documents produced; common law judges mostly don't (but do look much more to precedent.)
And there is of course the problem of judges in the US being fairly strongly partisan politicised (since all power in the US is partisan politicised), so the interpretation will depend on which party has lately stuffed the supreme court.
Should be, yes. But "are"? How sure are you about that, given the last four years?
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.
My guess is it would first involve the creation of a considerable number of new states under Article IV and then proceed to amend Article V as above by enlisting the newly created states. The part I can't quite explain is how those states get created without dividing an existing state which requires the consent of that state's legislature.
Edit: Really, the more that I think about it, the ability of Congress to create new states by simple legislative action (so long as the territory does not come from existing states) IS almost certainly the loophole. Every new state, no matter how small, gets 1 Congressman and 2 Senators. Create enough, and you control both houses of Congress. Since the EC vote is determined by number of Congressmen + the number of Senators by state, you'd also control the Presidency. Since the number of SCOTUS justices can be changed by simple legislation, you'd now control all 3 branches of government. At that point, using Article V to amend Article V just becomes the final icing on the cake.
Edit 2: DC is not a state, and so would not be subject to Article IV constraints on making new states from existing ones. Article I Section 8 gives Congress complete jurisdiction over DC. Reserve a portion of DC as the US Capital, divide the remainder into 150 new states. I think I just found Gödel's Loophole. Or maybe I'm just "a nerd trying to solve law" as someone else posted, that's entirely possible.
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.
The historical precedent to this concern is the Nazification of Germany. After Hitler was appointed chancellor, the Enabling Act[1] was passed as an amendment to the constitution. This gave Hitler the power to pass unconstitutional laws without parliamentary or presidential approval.
I think the possibility of iterative erosion of Article V such that the the entrenched clause that protects the composition of the Senate from change without unanimity can be removed is very comparable. This is concerning in an age where a once-majority party has been largely supportive of a figure who's displayed dictatorial tendencies.
https://www.newyorker.com/magazine/2021/03/29/when-constitut...
Most recent small example in this area : Government of India used article 370 to ammend article 367 which again affected article 370 to change status of Jammu and Kashmir.
More here -
https://www.business-standard.com/article/economy-policy/kas...
More seriously, this is actually a bit reminiscent of Fermat's famous comment. I suppose when the lawbots become operational in a few years, we'll get a full logical analysis of the Constitution and find the loophole(s).
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){}
}
People are not magically bound by words on a piece of paper, so if you end up being able to go through the (extremely arduous! Moreso than many countries) ammendment process successfully you probably have enough popular support to do whatever you would want in any universe, even with a stricter requirement.
It's embarassing that this anecdote is given almost any weight. It's absolutely the most navel-gazing useless analysis. It does help to serve as an excellent counter-argument to "philosopher kings", though....
But yes, law people sometimes forget that it's all words on paper.
Anyway, the rule of law quickly becomes irrelevant when something takes over by force. Currently Myanmar is controlled by a military coup, for example, and there was an attempted coup by civilians in the US not too long ago (while the legal and military branches of it stood by and did nothing)
That's the magic of intersubjective beliefs. Laws may be words on paper, but as long as everyone expects that everyone else expects everyone to follow them, they're mostly followed. Same with money - it's just pieces of paper and numbers in some computers, but by virtue of shared belief, it has real power.
To the extent making something illegal doesn't prevent it from happening, there are enforcement structures - but those could never actually police everyone. Their job is to catch the occasional person who wasn't convinced by the "words on paper", and by doing so, reinforce people's belief in the "shared delusion" of laws. Because when people stop believing, society disappears.
So banning something by law does have an effect, but in the discussion of the dissolution of law it's clearly the courts, the bureaucracy, and the media that carry all the important functions of defence against subversion.
(Which is why I consider attacks at public trust as existential threats to society - why I consider many white-collar crimes to be on par with murder, why I think current ad-funded journalism is a huge net social negative, and why I think many of hot SV startups need to be disbanded. They're all trying to erode the conditions that allow the "shared delusion" of civilization to function.)
Or, excuse the bad analogy, think of it as shield generators in Star Trek and other sci-fi. A starship will have this critical bit of technobabble that you could break with a wrench, but when activated, it directs energy into a field that can laugh off megaton explosions. It's the field that does the work, the generator only keeps it up.
> It's the field that does the work, the generator only keeps it up.
No matter how you continue this parable it will become an arms race, invariably.
One very famous such story is the magic oil lamp that kep burning when Massada was under siege. That's as you describe the faith which keeps the flame going.
The problem is in my view rather like Jakob the Liar, Plato's cave parable and the Emperor's new Clothe's. The emperor knows he's naked, but as long as he controls fuel flow, nobody will switch on the light, and if the abstraction is leaky he will be well positioned to throw a huge shadow, waving his arms around.
As they say, biology is all about ... I hope you know what I mean, I just forgot what do they say? Gradients, right?
So I guess sure, in the stochastic gradient descent sense biology is about gradients ;)
Feedback loops. Everything is about feedback loops.
That is to say that our understanding of the rules of the game, our norms, are not created at birth but rather accumulated as we experience the external world. So the acts of the lawyer and the judge matters not just for the parties involved in the case, but also to all that might hear of it. Therefore their impact on the whole of society is not to be measured merely by the number of legal entities they adjudicate between, but rather by the size of the total audience.
Though I will grant that the lion share of the moral choices we make have pretty straightforward answers (should I shove this dude onto the tracks for talking loudly about bitcoins while we wait for the subway? No, I'll just rant on twitter), and our norm setting systems rarely have to get involved for us to make those choices in line with the rest of society.
There are huge areas where the law is routinely broken (by civilians, law enforcement) and there is no consequences. (Petty theft, violence against poor people, tax evasion.)
At the courthouse, witnesses would normally remain outside of the room during a citizenship examination, but because Einstein, a celebrity, was involved, and because the judge, Phillip Forman, had administered the oath of citizenship to Einstein, all three men were invited in [0]
Damn dude, it's just a funny anecdote, no one is claiming it's a national security threat or anything like that.
There was no analysis involved, Gödel found it while studying for something else.
It's a super small wikipedia article for an amusing story, who said anything about solving law? If there is a contradiction on the Constitution I don't know why would it be a wrong thing to, at the very least, address it.
> Damn dude, it's just a funny anecdote, no one is claiming it's a national security threat or anything like that.
Sibling to parent comment:
> Wow, you're seriously underestimating this issue. [followed by long analysis on how other constitutions feel they need to solve this very serious issue]
I don't see how you jump from this, to saying that Gödel, who was a very smart person, childishly believed that words on paper were universally enforceable to their logical consequences. I'm sure he was aware of the existence of courts...
The point is NOT that the system is somehow immaculate and incapable of drifting into instability.
Indeed, the concentration of power in the hands of the few we see about us is, arguably, the rejection of representative systems developed in the last several centuries in favor of historical authoritarian approaches.
Sweet, sweet panem et circenses => https://en.wikipedia.org/wiki/Bread_and_circuses
I don't think history is a linear progression from authoritarianism to representative government.
"Law is what should happen. Politics is what does happen."
Are you arguing the linearity, or the degree to which any governments in view represent much beyond the whims of the authoritarians?
If constitutional assemblies worry about things like that, it's not as silly as you put it for Gödel to have wondered about not having such features in the US constitution at a time just after WW2.
[1] https://en.wikipedia.org/wiki/Entrenched_clause
Edit: Not a minor nitpick. Article 1 AND 20. Fixed!
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.
In reality, changes in laws happen when a small group supports them and, small opposition notwithstanding, vast majority of people do not care. One of the easiest ways to make the majority care - and oppose you - is to push your changes in a way that violates existing legal framework, particularly important things like a constitution. As long as you don't do that - as long as you take things slow and don't raise people's alarms - you can boil the proverbial frog.
That's what these clauses are meant to protect from. A series moves, planned or accidental, that could turn the country into dictatorship.
--
[0] - I.e. the kind that's valid as long as enough people believe enough other people believe it's valid. Like a constitution. Or money.
You cannot simply write down a law prohibiting becoming a dictatorship and then sit back thinking all will be fine, because then these groups will simply grow their power until they can ignore the bits of the law they don't like. And they don't need to change the law to gain power, they merely need acceptance of their telling of events.
On the other hand, without extensive support you cannot create a dictatorship because that word implies such extensive societal control that there simply must be extensive power behind it for it to function at all.
2. Alter articles 1 and 20
3. ???
4. 4th Reich
More likely, the authors of entrenched clauses understood that, if it came to that, making that change illegal wouldn't prevent a slip to dictatorship. That impasse would only hinder the honest actors, if in the future there came a time when those entrenched clauses really legitimately need to be changed; and hence that door was deliberately left open.
Sure, if it came to that, judges may still rule your way to slow down the slide the dictatorship, but then the next constitutional amendment would be "all judges are retired, here's how new judges are selected". Or some other legal maneuver. Even the strongest clauses could be circumvented if they have enough support or power, let alone feeble interpretations of implicit clauses.
It could. But why explicitly write down things that are obvious anyway?
> More likely, the authors of entrenched clauses understood that, if it came to that, making that change illegal wouldn't prevent a slip to dictatorship. That impasse would only hinder the honest actors, if in the future there came a time when those entrenched clauses really legitimately need to be changed; and hence that door was deliberately left open.
No, the Basic Law was very much designed to make another slip into dictatorship impossible using legal means. The idea that the eternity clause was deliberately made toothless in case we actually do want to abolish human rights, democracy and rule of law again is frankly absurd.
> Sure, if it came to that, judges may still rule your way to slow down the slide the dictatorship, but then the next constitutional amendment would be "all judges are retired, here's how new judges are selected".
That constitutional amendment would simply be unconstitutional and thus invalid. Law is not code. If you violate its intent, you violate it.
Maybe it's obvious to you; to me it's obvious the other way. Perhaps, when penning their supposed bulwark against dictatorship, they could afford to spend a few more drops of ink?
If the authors of such entrenched clauses really meant it the way you imply, they are doubly idiots, first for thinking that such legal technicalities would help prevent the slide into dictatorships, and then for failing to even do that and leave a loophole. I don't think they are idiots and they realized such an attempt would be futile and counterproductive. And focused their efforts elsewhere, to build a proper system with checks and balances so power would not be concentrated.
> The idea that the eternity clause was deliberately made toothless in case we actually do want to abolish human rights, democracy and rule of law again is frankly absurd.
No dictator would bother with amending such toothless abstract parts anyway. They would simply claim they are the greatest champion of human rights, and that their abuses are actually not abuses at all. The parts that are worth changing are concrete, technical details; like how are the judges that decide whether those are abuses are appointed. And those parts that the dictator might want to modify, may also legitimately need to be modified in the future, so all constitutions leave the door open to that change, yes.
> That constitutional amendment would simply be unconstitutional and thus invalid. Law is not code. If you violate its intent, you violate it.
Of course the prospective dictator would violate the constitution's intent, that's the point. Newly appointed judges would disagree with you about the amendment's constitutionality, though. As would the populace, who would just see unelected judges violating letter of the law to stop the people's will and protect the status quo.
Law is not code, it's what people in power interpret it to be. If a person or group manages to concentrate the power in practice, no legal technicalities help. I live in a country that recently went through that change; all the human rights, freedom of speech, rule of law clauses are there, all the supposed ostensible checks and balances are there, none of it is of any help. You can think in your head that it's not actually constitutional all you like, it's just that the judges, prosecutors, army, police, the censored media and most of the populace would disagree.
> As would the populace, who would just see unelected judges violating letter of the law to stop the people's will and protect the status quo.
Nope. It would see the most trusted state organ protecting the Basic Law. Which I've capitalized not because I can't spell but because it culturally has a somewhat similar status to the US Constitution in the USA.
The logic is rather sound: The article already protects the principles of articles 1-20, not the articles themselves. So changing article 79 to remove the protections is already touching on these principles, and is therefore inadmissible.
It is unconstitutional, by the old constitution standards', but the new regime can just ignore it and call it a day (we're talking about a fascist takeover here).
> paragraph 4 in the German constitution states: " All Germans shall have the right to resist any person seeking to abolish this constitutional order if no other remedy is available."
that's cute, but do you think it would change anything if Myanmar's constitution had included such clause? Do you think it would stop the military from shooting protestors?
Laws, and constitutions, are useful, but in the end: politics is about power, not laws.
This, exactly. I think constitutional guardrails are an effect, not a cause, of healthy democracies. If there is political will to do something bad the law can always be abrogated, edited, reinterpreted or circumvented. The existence of a loophole isn't surprising. The existence of a law without them would be.
(Same applies, mutatus mutandis, to smart contracts.)
You can't stop a bullet with a piece of paper. But what's written on the paper can persuade a would-be shooter that the cost of their actions is likely to outweigh the benefits - because it legitimises and encourages counter-actions and severe penalties.
The efficient way to maintain power is by controlling what people believe. It's a lot less effort and mess than trying to torture and murder everyone who opposes you.
Perhaps not, but Myanmar isn't full of Germans.
> Laws, and constitutions, are useful, but in the end: politics is about power, not laws.
The power to make people behave in a certain manner. Laws are quite effective at that.
Or the words of the constitution can be reinterpreted to mean something entirely different than what they originally meant.
(It's probably a joke technicality that would never be allowed in the real world.)
Governments are not magically bound by law. The cost of breaking or ignoring the law depends on the public reaction (i.e. changes in their approval rate, protests on the streets that can be managed with police and military).
What do you mean here? I don't see an opportunity for relevance.
James Madison, who wrote the Constitution, most of the Federalist Papers AND the Bill of Rights, wrote the Bill of Rights specifically for individual freedoms so that the states would not want to rewrite the Constitution in another convention. Any addition to the Constitution that doesn't add more freedoms, rights or expand the power of the people and their pursuit of "Life, Liberty and the Pursuit of Happiness" as stated in the Declaration of Independence, will be misguided and discarded. Using amendments to strip away the main body of the Constitution, unless for more rights/freedoms, would be an incorrect use of the design goals.
Almost immediately after beginning to meet in 1789, the first Congress, led by James Madison, began to consider amendments to the Constitution proposed by the state ratifying conventions. George Washington and Madison had personally pledged to consider amendments because they realized that some amendments would be necessary to reduce pressure for a second constitutional convention that might drastically alter and weaken the new federal government. Fastening on Anti-Federalist criticisms that the Constitution lacked a clear articulation of guaranteed rights, Madison proposed amendments that emphasized the rights of individuals rather than the rights of states, an ingenious move that led to cries that these amendments—now known as the "Bill of Rights"—were a mere diversion.
"I will now add what I do not like. First the omission of a bill of rights..."
Thomas Jefferson to James Madison, December 20, 1787 [3]
[1] https://en.wikipedia.org/wiki/Eighteenth_Amendment_to_the_Un...
[2] https://en.wikipedia.org/wiki/Twenty-first_Amendment_to_the_...
[3] https://www.loc.gov/exhibits/creating-the-united-states/dema...
- Basic freedoms/rights
- The government limits/boundaries (legislative and in regards to citizens)
- How the government should work (on a very high level)
The rest is better to have as laws/treaties. (Though to be fair sometimes it would be helpful to be more specific, still laws always move much slower than the times and technological changes might be difficult to consider using a past lens)
The US constitution is to be fair one of the most concise ones. As you correctly point out, prohibition is something that shouldn't have been even there
[...]
>"Since the exact nature of Gödel's Loophole has never been published, what it is, precisely, is not known."
Gödel was a brilliant, brilliant Mathematician.
There is no doubt, no question about that!
In fact, he's one of my personal "Mathematical Heros". In the same league as Ramanujan, Gauss, Euler, Newton, etc.
But, while he was all of this, he was also "rank amateur" in terms of finding contradictions in what is commonly called "The Law" (even though this article might have you believe otherwise).
Wow, he found one contradiction in the Law!
And of course, they don't tell you what it was exactly, leaving you guessing, leaving you wanting to know more -- a common trick used by Hollywood (and book authors) for getting and keeping the audience's attention!
One has only to study the Law, or what is commonly called "The Law" -- for a few years, with the mind of a Logician or Computer Programmer -- to discover many, and I mean, many, contradictions...
Here's a "fun one" to "whet your whistle":
https://en.wikipedia.org/wiki/Equal_Protection_Clause
>"The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws". It mandates that individuals in similar situations be treated equally by the law.[1][2][3]
[...]
>"Text
The Equal Protection Clause is located at the end of Section 1 of the Fourteenth Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
Now, compare this equal protection of the laws, with the extremely unequal way that Covid-19 lockdown laws were implemented, State to State, in the United States:
https://en.wikipedia.org/wiki/COVID-19_lockdowns#United_Stat...
>"Stay-at-home orders in the United States have come from several states and a large number of local jurisdictions, sometimes leading to conflicts between different levels of government and a patchwork of inconsistent dates and rules.[610][611][612]"
Sometimes leading to conflicts, Wikipedia?
?
Try more like ALL OF THE TIME!
That is all of them -- are in conflict, contradiction, with the Equal Protection clause of the Constitution.
You see, for a State's Laws to be valid under the Equal Protection clause of the Constitution, it's an all-or-nothing deal.
That's because all Laws are like half-filled glasses of water; that is, they have a filled part, and they have an unfilled part.
If half of a Law is what protects people, it's like the filled part of the glass of water.
The other half of a Law is what encroaches on other people's freedoms and liberties; it's like the unfilled part of the glass of water.
If the Laws which protect people (and simultaneously encroach on other peoples freedoms and liberties) are not exactly equal, in each and every State, all of the time, then this would not be unlike each State having its own glass of water -- that was filled to a different level -- than each of the other States...
In other words,
no longer are individuals in similar situations -- treated equally by the law.
The Equal Protection Clause of the Constitution -- has been violated -- by these asymmetric, contradictory "Laws".
They are therefore, at least according to the Constitution, at least according to the Equal Protection Clause -- fully and thoroughly Unconstitutional (or contradictory, phrased another way) -- yet that hasn't seemed to have been much of an impediment to the groups and parties that implemented them, nor does it seem to be an aspect of things that was discussed or talked about much in the mass media...
But, long story short -- there are many contradictions in Law -- if one but studies the subject matter with the mind of a Mathematician, Logician, or Computer Programmer...
I think this is a peril of reading the comment section before checking out links. If it's not worth talking about, you'll only find unhinged or pedantic conversations about it.
Such a mundane judge. It's as if someone says to a physicist "I have the General Unified Theory" and they decide to not listen to it.
That happens all the time. The probably judge ignored Gödel for the same reason physcists ignore cranks.
Gödel was clearly a giant in his field but here he is completely outside of the rubric of things he was familiar with. Specifically the constitution describes a political system not a logical one and while logic is important for the law, it does not describe anything like a formal system of logic (in the mathematical sense).
Judges are also incredibly busy and they probably had a huge caseload to deal with and little time right then for a detailed constitutional debate.