What might a constitutional amendment capping the age of the President look like?

I recently published an op-ed in the Wall Street Journal suggesting that we should consider a constitutional amendment capping the age of the president.

Undoubtedly, the decision to amend the Constitution is significant, and the decision to do so by limiting voters’ choices even more so. The Constitution does limit our choices for president, however—there’s an age minimum of 35, the natural born citizen requirement, and the 14-year residency requirement. The 22d Amendment was enacted to forbid candidates who have served two terms (or 10 years’ service) from taking office—even though the people had just elected Franklin Delano Roosevelt to four terms.

But if voters lack adequate information about candidates’ health (as I argue in the piece), and health-related risks increase significantly with age, we may want to cap the age of the president.

Here’s a proposal for a constitutional amendment:

Section 1. No person shall be elected to the office of the President who shall have attained to the age of seventy-five years on the date on which the term of office begins.

In the opinion piece, I offer 70, 75, and 80 as possible benchmarks. I like 75 for a few reasons. First, Ronald Reagan was elected at 69, reelected at 73, and left office at 77. Like a two-term limit patterned after George Washington, an age-related requirement closely mirroring Mr. Reagan has a nice practical background. At 75, it’s a number that nicely mirrors 35. (Okay, so I’m too into the aesthetics….) Finally, it requires a president to leave office before turning 80, which starts to feel (?) like an upper bound.

The amendment is patterned off language in Article II and the 22d Amendment. It would allow a 70-year-old to seek two consecutive terms of office, and a 74-year-old to seek one.

It uses the word “elected,” which means, I think, that a vice president could be older, or someone from the cabinet who ascends to the office of president could be older. It simply means those individuals could not be “elected” to the office of President. And it fixes the date of age at the time the term of office begins.

Of course, such a hard number is going to be overinclusive and underinclusive. But if it’s a matter of risk tolerance, it strikes me that this is a pretty good marker.

Some might point to the extremely short life expectancy at the Founding, but I think those figures are deceptive. Life expectancy was short because of infant mortality. If you made it to the age of 21, your life expectancy, particularly among the upper class, was not much shorter than today. Indeed, among our first several presidents, most died late in life—Mr. Washington at 67, John Adams at 73, Thomas Jefferson at 83, James Madison at 85, James Monroe at 73, and John Quincy Adams at 80.

The requirement would undoubtedly alter how presidential campaigns would run. Candidates would recognize that they have a “window,” one that might “close” if they wait too long. But I think having two generations to seek the office of president is a sufficiently long window for most candidates.

I think the office of President is unique because it is a single-headed executive. It might be, of course, that we have concerns about other federal positions. So here are some proposals to add to this amendment.

Section 2. No person shall be elected to Congress who shall have attained to the age of eighty years.

Section 3. No person shall hold the office of judge of the supreme or inferior courts who has attained to the age of eighty-five years. Any judge holding that office who has attained to the age of eighty-five years shall no longer hold that office.

Section 2 would cap the age of members of Congress. It would serve as a soft term limit—much better than the deeply restrictive suggestions proposed recently of things like two- or three-year limits. In the Senate, a person could be elected at 79 and end the term at 85. In the House, it would be 79 and 81.

Right now, there are just two senators over the age of 85 (Dianne Feinstein and Chuck Grassley) and three others over the age of 80. In the House, there are 9 representatives over the age of 80—some elected as far back as 1973, the most recent elected in 1999. It would effectively offer rotation for some members of the House. It also allows a governor to appoint an over-eighty Senator if a vacancy occurs, consistent with the 17th Amendment—that Senator simply couldn’t be elected. It also reduces vacancies that arise from death given that very senior members would not be serving in Congress.

On the federal judiciary side, many federal judges already go “senior” at the age of 65 or so anyway. It would simply pull those—and all other—judges out of active service at the age of 85, which is fairly late in a career anyway. There are concerns that occasionally arise about the age of district court judges in particular, which this amendment would address. It would also compel retirements of Supreme Court justices upon turning 85 (two current justices are over that age). It might lead to younger-than-ever Supreme Court nominees, or strategic timing of retirements… but let’s face it, those are already occurring.

I’m sure many might quibble or wonder about these precise contours. Or maybe you’ve identified weaknesses I haven’t considered. But these are, I think, worth considering.