The Application of the Disqualification Clause to Congress: A Response to Benjamin Cassady, 'You've Got Your Crook, I've Got Mine': Why the Disqualification Clause Doesn't (Always) Disqualify

Abstract

This article is a response to Benjamin Cassady’s recent article, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify. It agrees with Your Crook that disqualification does not apply to election to the House or Senate, and that voters should have as free a hand as the Constitution will allow to elect representatives and senators that others in Congress might find scurrilous. The article focuses, however, on disagreements and distinctions. Part I critiques the nature of the structural claims in Your Crook. Part II examines the importance of the legal-process question: who decides whether a particular person is disqualified from a particular post? Part III looks at other elements of the constitutional structure that Your Crook does not consider. Part IV similarly fleshes out the question of disqualification and the presidency. Finally, Part V takes issue with Mr. Cassady’s application of the term “pardon” to the election of a previously disqualified or expelled person.

Keywords: impeachment, disqualification, congressional qualifications, presidential qualifications