Dueling Disqualifications

Gerard N. Magliocca

Let's go off the beaten track for a minute. Section Three of the Fourteenth Amendment is often described as unique. Other constitutional qualifications for office, the story goes, were straightforward rules that did not involve adjudicating misconduct. This is true with respect to the Federal Constitution. But not for state constitutions. Many state constitutions in 1868 prohibited duelers from holding office.

Here is the Mississippi Constitution of 1868: 

"[A]ny person who shall hereafter fight a duel, or assist in the same, as second, or send, accept, or knowingly carry a challenge therefor, or go out of the State to fight a duel, shall be disqualified from holding any office under this Constitution, and shall forever be disfranchised in this State."

The South Carolina Constitution of 1868:  

"[A]ny person who shall fight a duel, or send or a challenge for that purpose, or be an aider and abetter in fighting a duel, shall be deprived of holding any office of honor or trust under this State . . ."

The Arkansas Constitution of 1868:

"Any person who shall, after the adoption of this Constitution, fight a duel or send or accept a challenge for that purpose, or be aider or abettor in fighting a duel, either within this State or elsewhere, shall thereby be deprived of the right of holding any office of honor or profit in this state . . ."

The North Carolina Constitution of 1868:

"No person who shall hereafter fight a duel, or assist in the same as a second, or send, accept, or knowingly carry a challenge therefor, or agree to go out of this State to fight a duel, shall hold any office in this State."

There is an interesting analogy between the dueling and insurrection disqualifications. They both involve the use or attempted use of violence in lieu of lawful and peaceful methods to settle disputes. (Duels, of course, involve private disagreements rather than public ones.) And they both were defined broadly. Even being a second in a duel or fighting one out of state could get you banned from state office for life.

Were there any cases interpreting these provisions? I don't know, but I'll look.