The Law of Democratic Disqualification
56 Pages Posted: 11 Oct 2021 Last revised: 23 May 2022
Date Written: October 8, 2021
Almost all constitutions, including our own, contain one or several ways to disqualify specific individuals from political office. The U.S. Constitution, indeed, incorporates no less than four overlapping pathways toward disqualification. This power of retail disqualification stands at the heartland of the complex project of democratic rule. In practice, it works both an instrument for preserving democratic rule, and also a knife against it. This Article is the first to analyze systematically the complex positive and normative questions raised by disqualification. It offers both a positive account of the function that disqualification plays in constitutional ordering, and a normative account of the role that it should play. Drawing on domestic and comparative evidence, it then develops the blueprint of an ‘optimal’ disqualification regime. This would aim at disqualifying officials who pose a clear threat to a relatively minimalist, electorally-focused conception of democracy, while avoiding overuse for less pressing ends or, worse, abuse for antidemocratic purposes. It would contain plural pathways, calibrated to avoid the possibility of partisan arbitrage. These would lean toward the regulation of individuals rather than groups. They would not usually run directly through elected bodies. The prerequisite for disqualification would more often be stated as a rule than as a standard. And the ensuing prohibitions would more often be temporary rather than permanent. This optimal approach leads to specific reform recommendations for the U.S. context. First, we demonstrate that Section 3 of the Fourteenth Amendment should be given greater specificity and shape via statute, as Congress indeed did after the Civil War, and as it is empowered to do now via its authority to “enforce” the terms of the Reconstruction amendments. Second, we develop a case for a framework statute setting forth a judicial mechanism for enforcing the two-term limit on chief executives under the Twenty-Second Amendment. Finally, we propose decoupling impeachment and disqualification, creating two distinct institutional pathways for disqualification.
Keywords: disqualification, impeachment, lustration, militant democracy, Donald Trump
JEL Classification: K00
Suggested Citation: Suggested Citation