The popular rum-maker Captain Morgan is proposing to eliminate any age requirements for citizens to serve as President of the United States. The ad stunt does raise a question with an interesting constitutional background.
The Captain Morgan campaign claims that “Under 35s can do anything: Except be President,” and it lists some very famous business people who currently can’t run for President. The campaign also has a White House website petition asking President Barack Obama to “call on Congress to address the age requirement necessary for presidential office with an amendment to the Constitution to allow adults under 35 to be President.”
The Constitution clearly spells out three age requirements for public office. First, the President and Vice President must be 35 years of age or older when assuming office; a Senator must be 30 years of age, and a member of the House must be 25 years of age. There are no age requirements for Supreme Court Justices.
Those requirements haven’t changed since the Constitution was written in 1787 and went into effect in 1789. Prior to that, the Articles of Confederation didn’t say how old members needed to be to serve in the Confederation Congress.
At the Constitutional Convention in Philadelphia, there was little public debate about the age requirements and no discussion about the age requirement for the presidency.
The one discussion of note involved two important Founders: James Wilson, a future Supreme Court Justice, and George Mason, a constitutional dissenter. Mason, who was 62 years of age, argued that a requirement of 25 years of age was needed for the House because of his own experience. Mason said, “if interrogated [he would] be obliged to declare that his political opinions at the age of 21 were too crude and erroneous to merit an influence on public measures.”
Wilson, who was 45 years of age, said that any age limit on serving in public office would “damp the efforts of genius, and of laudable ambition. There was no more reason for incapacitating youth than age, where the requisite qualifications were found.” Wilson pointed to William Pitt the Younger, who served as British prime minister at the age of 24, and Lord Bolingbroke, who served in Parliament in his early 20s.
In the end, Mason won the argument and the drafting committee approved age limits by a 7-3 vote. There was some insight later from James Madison, writing in The Federalist 62, about why Senators needed to be older than House members.
Madison talked about the need for “senatorial trust” which required “greater extent of information and stability of character … that the senator should have reached a period of life most likely to supply these advantages.”
Madison also discussed some points that some scholars believe led to the age requirements: a distrust of foreign influence and a fear of families trying to put children in place in federal office to serve in a hereditary manner. He feared the “indiscriminate and hasty admission” of people to Congress that “might create a channel for foreign influence on the national councils.”
James Monroe also wrote about the presidential age requirement making it difficult for a father and son to serve in a dynastic way. “The Constitution has provided, that no person shall be eligible to the office, who is not thirty five years old; and in the course of nature very few fathers leave a son who has arrived to that age,” he said in “A Native of Virginia, Observations upon the Proposed Plan of Federal Government.”
One interesting comment came from a Continental Congress member who was in Philadelphia in 1787 but not a delegate at the Constitutional Convention: Tench Coxe.
Coxe wrote a newspaper essay defending the need for the Constitution right after the debates were concluded. “In America, as the President is to be one of the people at the end of his short term, so will he and his fellow citizens remember that he was originally one of the people; and that he is created by their breath. Further, he cannot be an idiot, probably not a knave or a tyrant, for those whom nature makes so, discover it before the age of thirty-five, until which period he cannot be elected.”
Ironically, 12 of the delegates at the Constitution Convention were under the age of 35, including Alexander Hamilton. Gouverneur Morris, who wrote the Preamble, was 35 years of age and James Madison was 36 years of age. Thomas Jefferson was also 33 years of age when he drafted the Declaration of Independence in 1776.
Today, the age limits on the presidency and Congress haven’t been successfully challenged in court. In 2012, Peta Lindsay challenged the presidential age restriction by running as a presidential candidate for the Peace and Freedom Party candidate, at the age of 27, within the state of California.
In 2014, Federal appeals Judge Alex Kozinski and two other federal judges rejected arguments that Lindsay’s rights were violated under the First Amendment and the 14th Amendment’s Equal Protection Clause and that the 12th Amendment’s language didn’t allow states to set age requirements.
“Holding that [the state] couldn’t exclude Lindsay from the ballot, despite her admission that she was underage, would mean that anyone, regardless of age, citizenship or any other constitutional ineligibility would be entitled to clutter and confuse our electoral ballot. Nothing in the First Amendment compels such an absurd result,” wrote Judge Kozinski.
That doesn’t mean that a few underage people haven’t been admitted to the Senate, despite the Constitution’s intent. At least three Senators – Henry Clay, Armistead Mason, and John H. Eaton – took their Senate oaths before they were legally 30 years old. The oversights weren’t apparently noticed or challenged.
In 1972, Joe Biden, a 29-year-old candidate from Delaware, was elected to the Senate. Biden turned 30 just a few weeks after his election and well before he took the oath of office in January 1973.
And William Jennings Bryam was the youngest major party candidate to run in a general election. Bryan was just 36 years old when he opposed William McKinley in the 1896 election.
Scott Bomboy is the editor in chief of the National Constitution Center.