Originalism & The Scope of the Constitution's Disqualification Clause


Tillman, Seth Barrett (2014) Originalism & The Scope of the Constitution's Disqualification Clause. Quinnipiac Law Review, 33 (1). pp. 59-126.

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Abstract

This paper discusses the scope of the Constitution’s Disqualification Clause (Article I, Section 3, Clause 7) and the original public meaning of its “office...under the United States” language. In a recent paper in this journal, Benjamin Cassady argued that this clause bars disqualified former presidents, vice presidents, and officers of the United States from subsequent election or reelection to the presidency and vice presidency. Here, I take the contrary position: disqualified former presidents, vice presidents, and officers of the United States are not barred from any elected positions, state or federal. Rather, such disqualified former presidents, vice presidents, and officers of the United States are only barred from holding statutory or appointed federal offices. Finally, I address some issues relating to best methodological practices and the use of structural and other intuitionist modalities of interpretation when constitutional text is reasonably clear. I primarily rely on evidence contemporaneous with the ratification of the U.S. Constitution, including: the drafting traditions of the Committee of Detail and the Committee of Style, statutory drafting traditions going back to the First Congress, official Executive Branch communications from Secretary Alexander Hamilton to the Senate, and President Washington’s gifts from foreign government officials. These are all Founding-era precedents involving the Constitution’s “Office...under the United States” language, i.e., the operative language in the Disqualification Clause.

Item Type: Article
Keywords: Originalism; The Scope; Constitution's Disqualification Clause;
Academic Unit: Faculty of Social Sciences > Law
Item ID: 6156
Depositing User: Seth Tillman
Date Deposited: 27 May 2015 09:11
Journal or Publication Title: Quinnipiac Law Review
Publisher: Quinnipiac University
Refereed: Yes
URI:

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