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.

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.

I. WHY THIS DEBATE IS IMPORTANT

II. THE CONSTITUTION’S OFFICE-LANGUAGE: CLAUSE-BOUND OR INTRATEXTUAL INTERPRETATION?

III. THE CONSTITUTION’S OFFICE-LANGUAGE: THREE INTRATEXTUAL THEORIES

a. The Maximalist Position

b. The Minimalist Position

c. The Intermediate Position

IV. CASSADY’S EVIDENCE & EVIDENCE CASSADY DID NOT DISCUSS

a. Evidence From Executive Branch Practice

i. Secretary of the Treasury Alexander Hamilton

ii. President George Washington

b. Evidence From Legislative Branch Practice

c. Evidence From the Supreme Court of the United States

i. The Supreme Court Erred in Regard to the Scope of “officers of the United” in Mouat and Free Enterprise Fund

ii. The Supreme Court Correctly Expounded on the Scope of “officers of the United” in Mouat and Free Enterprise Fund, but the Scope of “Office under the United States” Remains Open

d. Evidence From Coordinate Constitutional Provisions

i. Cassady on the Incompatibility Clause

ii. Cassady on the Foreign Emoluments Clause

iii. Cassady on the Electoral Incompatibility Clause

e. Evidence From Early Scholarship

V. CONCLUSION: BURDEN OF PERSUASION

[6 January 2015]