Many people refer to Section Three of the Fourteenth Amendment as the Disqualification Clause. Of course, Section Three does not use the word “disqualification.” And I did not describe the provision this way in my law review article. But I started doing so afterwards, as others were using that term and it seemed harmless.
Not anymore. An Arizona Superior Court dismissed a set of Section Three challenges yesterday in part by saying that the state eligibility statute refers to “qualifications prescribed by law” rather than “disqualifications” that are proscribed by law. Thus, the court said that the Disqualifications Clause is not enforced by state law.
My first response is that there is no difference between a qualification and a disqualification. If I run for the Senate at age 18, have I failed to meet the age qualification or am I disqualified by being too young? But even if there is a difference, Section Three says nothing about disqualification. The Fourteenth Amendment’s framers explained that Section Three added another qualification to the ones in the text. (The Arizona court responded that the Supreme Court has never so held, but that isn’t saying much since the Supreme Court has said nothing meaningful about Section Three.) I want to take a closer look at the congressional precedents to see if they speak to this point, and if I find anything significant I will update the post.
UPDATE: Here is what the House of Representatives said about this point in excluding Victor Berger in 1919: “In the present case there is a fourth qualification prescribed by the Constitution, or rather a fourth prohibition, as the qualifications set forth in the Constitution are put in negative form . . .” Then the Report quotes Section 3. This supports what I said above, which is that the Arizona Superior Court’s distinction between qualifications and disqualifications cannot withstand scrutiny.
Posted by Gerard Magliocca on April 23, 2022 at 04:25 PM