Too Much of a Good Thing; the Need For Age Limits for President and Justices

I occasionally read plaintive exhortations to amend the United States Constitution to redress a perceived imbalance or structural inequity. Naturally, the debate about eliminating the Electoral College springs immediately to mind. In reading these heart-felt missives, I often smile, realizing that no matter the merits of such an argument, it seems a fool’s errand to spend time trying to enact the proposal being advanced, precisely because the very structural system the person is railing against renders the change impossible.

Under Article V of the Constitution, a constitutional amendment, whether proposed by Congress or by a constitutional convention, must be ratified by three quarters of the state legislatures. Good luck convincing small states that they should forfeit their disproportionate power to elect a president and willingly cede their outsized voice to the likes of California, Texas, and New York. (That said, I do have a proposed tweak to the Electoral College and Senate that is conceivably possible, but that is a post for a different day.) Politics involves the art of the possible, so I confine myself to ideas that I think have a remote chance of passage. Invoking that principle, I suggest a constitutional amendment that meets my benchmark for advocacy: age limits for the presidency and Supreme Court justices.

At the outset, I emphasize that my proposal is not a commentary on any current officeholder, candidate, or justice. There are many, many vibrant, capable people in their seventies, eighties, and even nineties that remain extraordinarily competent. Warren Buffet is about to turn 89, and few if any professional investors half his age can approach his acumen. Rather, I advocate an age limit amendment because the president and Supreme Court justices wield concentrated power unimaginable to our Founding Fathers, and prudence dictates caution as a result. My argument rests upon experience, statistics, and probabilities. Once you cross the 75- or 80-year-old threshold, the risk of at least subtle cognitive impairment may not be large, but it does become statistically significant, and removing a president or justice whose impairment begins to emerge would likely embroil us in partisan warfare making removal almost impossible.

While I am flexible as to specific age limitations, I suggest that a president be no older than 75 when his or her term expires, and a justice must retire by 80. Because there are nine justices and only one president -— who has a nuclear arsenal at his command -— I am more sanguine about the mandatory retirement age for justices, but I am perfectly content with a 75 age limit for justices as well. (I likewise am fine with age limits for lower court judges, but that is not as important to me because they are not the final arbiters of crucial legal issues.) Sadly, the Supreme Court’s history contains more than one chapter in which other justices had to deal with a cognitively impaired colleague.

Cognitive decline and the concomitant loss of judgment can at first be subtle and progress over time. (Recent studies reflect that many elderly pass cognitive tests but are vulnerable to scams because an area of their brains controlling judgment and skepticism has atrophied. I try not to think about those studies when I hear Trump declare that he believes Putin and Kim.)

Moreover, experience reflects that much older people can lose what I refer to as their “margin of error,” and an illness can cause a precipitous decline. Thus, when deciding to vote for someone for president, you should not only consider how the presidential candidate appears now, but also what you think the toll of a demanding office will take on a candidate over the course of four years.

An age limitation is also consistent with the Founding Fathers’ concern. They recognized we should consider age limitations for offices possessing great responsibilities. That is why they placed minimum age requirements for various offices, with escalating ages as the power of the office increases. The minimum age for a Representative is 25, 30 for the Senate, and 35 for president. The Founding Fathers believed that with age comes wisdom, and the more powerful the office, the better judgment you should command. While not true for everyone, age does affect judgment. (In addition to experience, until you are about 25, your brain is still developing, and the area governing judgment is the last area to fully develop.)

But 230 years ago, the complications of old age seldom presented a problem, and the health challenges of advanced age was not a likely threat on the minds of our Founders. Not a lot of octogenarians were running for office back then, and I doubt that dementia was a topic of daily conversation when life expectancy at birth was less than 40 years old. But ask yourself this. What do you think our Founders would have done if they thought dementia was a real risk? I suspect the United States Constitution would contain maximum as well as minimum age qualifications for various  offices. We certainly cannot rely on the person suffering from cognitive decline to “do the right thing” and resign, because the judgment to make such a decision is often the first to go when cognitive impairment begins to take hold of someone. Moreover, maximum age limitations are not foreign to our system. For example, there are mandatory retirement ages in Virginia for judges, and I think that has served us well in the Commonwealth.

Of course, my proposal would not include the current presidential officeholder and candidates, nor would it include sitting justices. My proposal is not intended to ignite a partisan debate but rather initiate a discussion about common sense. I also do not suggest age limitations for Congress, not because I disfavor the idea, but because many in Congress who would vote on a constitutional amendment may be loathe to place an age limitation on themselves. (I still remember with a chuckle when Strom Thurmond was clearly senile, and a South Carolina voter was asked if Thurmond’s obvious senility should be a cause for concern. The voter replied that while Thurmond was indeed senile, he had done a good job in the past. The voter therefore concluded that Thurmond wasn’t so senile that he should be voted out of office.)

With medical advances, perhaps the day will come when cognitive decline may no longer be an issue or pose a threat. But until that day arrives, I submit that prudence dictates caution. I agree with the adage that with age comes wisdom, but I also believe that sometimes you can have too much of a good thing. No sense being a damn fool about it.

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