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111 Cal. L. Rev. 1633 (2023)
Democracy's Other Boundary Problem: The Law of Disqualification

handle is hein.journals/calr111 and id is 1619 raw text is: Democracy's Other Boundary Problem: The Law of Disqualification Tom Ginsburg,* Aziz Z. Huq** & David Landau*** Almost all national constitutions contain one or more ways to disqualify specific individuals from political office. Indeed, the U.S. Constitution incorporates at least four overlapping pathways toward disqualification. This power of disqualifying specific individuals or groups stands at the heart of the complex project of maintaining democratic rule. In practice, disqualification can work both as an instrument for preserving democratic rule and also as a knife against it. This Article is the first to systematically analyze the complex positive and normative questions raised by disqualification. We offer 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, we develop the blueprint for an optimal disqualification regime. This regime would disqualify 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 anti- democratic purposes. It would contain multiple pathways that would be calibrated to avoid the possibility of partisan arbitrage. These pathways would generally regulate individuals as such rather than groups and parties. Usually, they would not run directly through elected bodies. The substantive prerequisite for disqualification would more often be stated as a rule than as a standard, and the ensuing prohibitions would more often be temporary than permanent. This optimal approach leads to specific reform recommendations for the United States. First, we demonstrate that Section 3 of the Fourteenth Amendment should be given greater specificity and shape via statute, just as Congress 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 a decoupling of impeachment from disqualification, creating two distinct institutional pathways for disqualification. 1633

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