Friday, August 22, 2014

Tillman on Originalism and the Disqualification Clause

Seth Barrett Tillman, National University of Ireland, Maynooth Faculty of Law, has posted Originalism and the Scope of the Constitution's Disqualification Clause, which is forthcoming in the Quinnipiac Law Review 33 (2014).  Here is the 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.
Professor Tillman's abstract continues: "I expect this paper will appear in conjunction with papers from Professor Brian C. Kalt, Professor Peter C. Hoffer, and Buckner F. Melton, Jr.  I am ever hopeful that my paper (and those of the prominent commentators mentioned above) will draw some response from both Mr Cassady and those commentators upon who his paper relied."

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