On Sunday, Sen. Rand Paul (R-KY) said that he would challenge MSNBC’s Rachel Maddow and other critics that have accused him of plagiarism to a duel, except that he’s worried about a quirk in Kentucky law that could limit his job prospects. “If dueling were legal in Kentucky, if they keep it up, you know, it would be a duel challenge,” Paul told ABC’s George Stephanopoulos. “But I can’t do that, because I can’t hold office in Kentucky then.”
Yet, if the only thing keeping Paul from challenging Ms. Maddow to pistols at dawn is fear of losing his senate seat, then he should go ahead and lay down his gauntlet. Though Paul is literally correct that he “can’t hold office in Kentucky” if he crosses broadswords with a liberal TV host in order to restore his lost honor, his current gig in the United States Senate is a federal office, not a Kentucky office.
Kentucky law does indeed, require state officers to swear that they “have not fought a duel with deadly weapons within this State nor out of it, nor have [they] sent or accepted a challenge to fight a duel with deadly weapons, nor have [they] acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God,” but even if this law did apply to federal officials like Paul, it is doubtful that such an application would be constitutional.
The Constitution places three limits on who may serve in the Senate — a senator must “have attained to the age of thirty years, and been nine years a citizen of the United States,” and they must “be an inhabitant of that state for which he shall be chosen.” Moreover, the Supreme Court’s decision in Powell v. McCormack strongly suggests that these are the only limits that can be placed on who is allowed to serve in the Senate. As the Court explained in Powell, a “fundamental principle of our representative democracy is, in [Alexander] Hamilton’s words, ‘that the people should choose whom they please to govern them.'” So if the people of Kentucky want someone who matched rapiers with Rachel Maddow to represent them, that’s their business.
To be sure, none of this means that Paul could duel Maddow without consequence. The Constitution still permits the Senate to expel him by a two-thirds vote if enough of Paul’s colleagues object to his attempt to impersonate Aaron Burr. Paul would also likely commit a serious felony — possibly even murder — if he used or a deadly weapon on another person. Additionally, many dueling traditions permit Maddow, as the challenged party, to chose the weapon to be used in the duel. So Paul could find himself at a disadvantage if Maddow is secretly an expert in the use of nunchuks.
But if Paul duels Maddow and survives, Kentucky law should not prevent him from continuing to serve in the Senate.