Sean Trende of Real Clear Politics Proposes a Twenty-Eighth Amendment to the Constitution

… but there are other examples. When John Fetterman was first elected to the Senate, I questioned whether or not the man was even competent to serve at all (as did anyone who listened to the senatorial debate). I am legitimately happy to report that whatever his status was on the day he was sworn in, he seems to have little lasting impairment in the areas that matter to being a Senator. As I wrote here:

Two thoughts:

1) apart from any politics, I am really glad to see that Fetterman has become much more articulate when speaking. I don’t agree with him very much on politics (outside of Israel). And I thought the mere fact he had suffered this stroke and had not yet recovered… https://t.co/aSJrbTBPZW

— (((Aaron Walker))) (@AaronWorthing) October 26, 2024

And the relevant cut off text says:

And I thought the mere fact he had suffered this stroke and had not yet recovered meant he really shouldn’t have been put in the senate. But I also did feel very bad for him to watch him suffer as I could see him suffering. I don’t want Democrats to suffer. Some of my best friends are democrats (including family). So it is good to see him look more and more like he has recovered although you can still see signs. That’s something I’m really glad to see.

I am not going to paste the rest of the cut off text, because it was a discussion of the political effect of the first assassination attempt on Trump and while I think its an interesting theory, which is off topic to this discussion. But my point is that Democrats seemed perfectly fine with electing a senator who wasn’t up to the job (who thankfully has become competent since then), just as they were fine with electing a President whose marbles weren’t all there.

And of course, there is the recent story of Rep. Kay Granger of Texas who went missing for months and turned out to be in nursing home, which specializes in memory issues:

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Just a reminder that Kay Granger, a member of Congress, was basically missing for 6 months…

And they found her in an assisted living home.

There not only need to be term limits, but attendance requirements and cognitive tests for members of Congress
pic.twitter.com/0ZPhMBS68e

— Tim Young (@TimRunsHisMouth) December 29, 2024

You will note that the segment quickly gets into the topic of term limits. Now, whatever the merits of term limits are, and how it might look like, one thing to start with is that you are going to have a difficult time enacting them because you are going to need a constitutional amendment to do this. That was made clear in both in US Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) and Powell v. McCormack, 395 U.S. 486 (1969).

Powell refers to Adam Clayton Powell, who was elected to the New York delegation in the (U.S.) House of Representatives. But he was also allegedly corrupt as heck and consequently the House refused to seat him. There are many issues involved in that case, including whether or not this is a non-justiciable political question (which I discussed here), but the issue I am focusing on is this: The Supreme Court ruled that the qualifications in the Constitution are the only qualification for Congresscritters, and in the case of Representatives, that is found in Article I, Section 2, which reads:

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

So as long as you are at least twenty-five years old, a citizen for at least seven years, and an inhabitant of the state at the time of election, you are eligible and Congress can’t alter this.

Meanwhile, the case called Term Limits involved an Arkansas (State) Constitutional Provision that effectively created a term limit of three terms in the (U.S.) House of Representative and two terms in the (U.S.) Senate. In that case, the Supreme Court basically said that states cannot impose term limits on their Congresscritters, even using their Constitution.

So, term limits are out of the question unless we amend the Constitution.

But as an answer to this problem of mentally disabled politicians, particularly if they are elderly, that’s not quite enough. After all, term limits didn’t save us from four years of Joe Biden and the potential reality that the man elected president wasn’t always competent to be president.

So, perhaps sensing the inadequacy of this approach, Sean Trende of Real Clear Politics fame had his own idea:

Amend. XXVIII: "No one shall be elected to the office of President, Senator or Representative, after the age of 75, nor shall anyone serve as Justice, or Chief Justice, of the Supreme Court after the age of 80. This Amendment shall not apply to anyone currently serving in those…

— Sean T at RCP (@SeanTrende) December 22, 2024

Now, rather than just posting the cut off text as usual, I’ll reprint the whole post so you can more easily read what he said as a whole:

Amend. XXVIII: "No one shall be elected to the office of President, Senator or Representative, after the age of 75, nor shall anyone serve as Justice, or Chief Justice, of the Supreme Court after the age of 80. This Amendment shall not apply to anyone currently serving in those offices."

Now I take this as a proposal, and I suspect he is open to suggestions and criticisms, but … I tend to think this is a bad idea as written. First off, eighty years old can look very different from one person to another. I suspect Donald Trump will look much more energetic at eighty than Biden did.

The bigger problem is that it puts the number in the Constitution, which means it will be extremely difficult to remove if we change our mind. In one hundred years, eighty might be very different than it is right now. Indeed, scientific research might change what eighty is within the next five years, so that we might go to the trouble of ratifying this amendment, only to see it rendered obsolete shortly afterward.

So maybe the answer isn’t to set a maximum age in the Constitution, but rather to give an appropriate body the power to set a maximum age. So perhaps a twenty-eighth amendment that reads more like this:

Congress shall have the power, by the ordinary legislative process, to set a maximum age for any federal office, including but not limited to the Presidency, Vice Presidency, Congresspersons, federal judges and justices. However, no such laws establishing a maximum age or altering an established maximum age shall apply to any person holding those offices when such legislation is passed, and no such law shall take effect until ten years after such law’s passage.

Maybe I could work on the language a little, but I think this would be a big improvement over Mr. Trende’s proposal. First, we put it in Congress’s hands so that if there is a medical advance, it’ll be easier to change. Second, I expanded the list of offices covered. There is no good reason to cover a president but not a vice president, or to remove Supreme Court justices but not lower court judges. Third, I recognized that the problem with giving it to Congress is that they might try to pull shenanigans. For instance, if Democrats controlled both houses of Congress right now they might be tempted to pass a law setting the cut off age at 77 years and prevent Trump the Once and Future President^™ from taking office. I think the second sentence in my proposal addresses that, and with the ten-year delay, increases the chances that Congress will act on principle, rather than a desire to screw a particular political figure out of political life.

One might ask “why not let the states limit the maximum age of officials?” Well, if we were only talking about U.S. Congresscritters, that might be a sensible approach—let each state limit their own Congresscritters. But when you start talking about presidents or Supreme Court justices, no one state should be able to limit how old those officeholders can be. On balance, I think it has to be done on the national level, by Congress. 

Still, this more than usual is a case where I will welcome comments and read them, because I am very open to the idea that my proposal is also garbage for some reason that isn’t clear to me as I write this.

But I will say as a larger point that people need to be open to the idea that sometimes a proposed constitutional amendment shouldn’t answer a question, but rather should decide who can answer it. That was my idea when people started proposing a Constitutional Amendment preventing the Supreme Court from ruling that gay marriage is a Constitutional right. I would have preferred an amendment that either said Congress could decide the issue, or just clarifying that nothing in the Constitution guarantees a right to gay marriage, effectively leaving it to the states.

Because the Constitution really shouldn’t decide most issues. The Constitution shouldn’t say whether a highway goes in a particular place or another, or what the exact tariff on what materials there should be, if any. Most questions should be decided through the ordinary political process, not effectively set in stone in the Constitution, because when you answer it in the Constitution, you are locking in future generations to your answer and making America a less democratic country. This maximum age issue is a perfect example of this, where medical science might change radically, so that what is a good maximum age today is a terrible choice even five years later. Yes, some issues should be beyond the reach of an ordinary majority. The right to express unpopular viewpoints is one of the more obvious examples. But on most issues, we should be able to decide the issue through our political process.

Finally, if Mr. Trende does happen to read this post, I hope he takes it in the spirit of constructive criticism. I take him as making an honest attempt to propose a way to better our government and to do it the right way: By the amendment process. Whatever he thinks of this discussion I hope he takes my critique as being respectful.

***

Finally, as a quick funny note, regular readers might remember that the Term Limits case was brought up during oral argument during the Trump disqualification case, which I dove deep into here. This resulted in one of the dumber moments I have seen when observing the courts, because Justices Sotomayor and Kagan both thought he was referring to the presidential term limits found in the Twenty Second Amendment, rather than a case called Term Limits. Seriously, go back to that prior post and be astonished. It’s one of those things where I would give a mulligan to any lay person for getting confused about, but not to anyone claiming that they deserved to be on the Supreme Court.

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