What I Wrote in 2014

 

 

Cassady takes the position that the [Constitution’s] disqualification penalty bars disqualified former Presidents, Vice Presidents, and officers of the United States from subsequent election or re-election to the presidency and vice presidency. In this Article, I take the contrary position: disqualified former Presidents, Vice Presidents, and officers of the United States are not barred from any constitutionally mandated elected positions, state or federal. Rather, disqualified former Presidents, Vice Presidents, and officers of the United States are precluded from holding federal appointed or statutory offices.

Given the infrequency by which the Senate [in impeachment proceedings] invokes the disqualification penalty, one might very well ask: “Why is this issue important?” The answer, primarily, is for two reasons. First, just because disqualification has been rare in the past does not mean that it might not become more widely used in changed future circumstances. One thing we know about the future (if only from past futures) is that it might be very different from what we have lived and from what we currently expect. Because the effect of disqualification on candidates and voters is (ostensibly) permanent and (according to Cassady and others) profound, in regard to limiting their participatory and voting rights, we all might be better off having a frank discussion now, while we are behind a common Rawlsian veil of ignorance, before the effects of partisanship and the demands for speed under the pressure of litigation blind us from the permanent interests of our political community.

Second, the Disqualification Clause’s “Office . . . under the United States” language and very similar language appear within many other provisions of the Constitution. So, if our originalist investigation teaches us the scope of the Disqualification Clause’s specific “Office . . . under the United States” language, what we learn will (or, at least, may) have much to say regarding any number of other constitutional provisions (using that language). Our investigation is likely to have a global or intratextual impact across our understanding of the Constitution as a whole. In other words, we can use the Disqualification Clause as a wedge to pry open a door to constitutional meaning and meanings. The combined stakes here are reasonably high.

From: Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33(1) Quinnipiac L. Rev. 59 (2014), <ssrn.com/abstract=2484377>.

 

Seth Barrett Tillman, ‘What I Wrote in 2014,’ New Reform Club (Nov. 4, 2025, 4:22 AM), <https://reformclub.blogspot.com/2025/11/what-i-wrote-in-2014.html>;