The Law of Democratic Disqualification

56 Pages Posted: 11 Oct 2021 Last revised: 23 May 2022

See all articles by Tom Ginsburg

Tom Ginsburg

University of Chicago Law School

Aziz Z. Huq

University of Chicago - Law School

David Landau

Florida State University - College of Law

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

Ginsburg, Tom and Huq, Aziz Z. and Landau, David, The Law of Democratic Disqualification (October 8, 2021). California Law Review, Vol. 111, 2023, FSU College of Law, Public Law Research Paper Forthcoming, U of Chicago, Public Law Working Paper No. 791, University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 951, Available at SSRN: or

Tom Ginsburg

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Aziz Z. Huq

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

David Landau (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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