Originalism & The Scope of the Constitution's Disqualification Clause

68 Pages Posted: 22 Aug 2014 Last revised: 25 Mar 2015

Seth Barrett Tillman

National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law

Date Written: December 23, 2014

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.

Suggested Citation

Tillman, Seth Barrett, Originalism & The Scope of the Constitution's Disqualification Clause (December 23, 2014). Quinnipiac Law Review, Vol 33, p. 59, 2014 (invited response). Available at SSRN: https://ssrn.com/abstract=2484377

Seth Barrett Tillman (Contact Author)

National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law ( email )

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HOME PAGE: http://law.nuim.ie/staff/mr-seth-barrett-tillman

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