Too old to serve? A cause worth amending the Constitution

One of the lost arts of the American polity is the constitutional amendment. Once upon a time, citizens saw amendments as a viable way to make big changes. Thus it was that we changed the Constitution 12 times in the last century, including six times between 1913 and 1933. 

However, the last time Americans used the tool was 1992. And that amendment, on congressional pay, was a something of an outlier, as it had been pending, unratified, since 1789. The last time a fully “new” amendment passed was 1971, more than half a century ago. 

Apparently, at some point Americans lost interest in following the Constitution’s guide on how to change our governing document. That cannot be because the process has changed, since it never has. 

The typical way to amend the Constitution is fairly straightforward: Two-thirds of the House and two-thirds of the Senate have to approve, then three-quarters of the state legislatures have to ratify. (There is a provision for proposals from a convention of states, but this has never been used.)

Perhaps we think the process is too cumbersome. Perhaps we think it too slow. Perhaps we simply assume, in an age of sharp societal divisions,  that there is no issue that could garner the necessary popular support. 

As a result, we have turned more and more to the courts to make big changes for us. We considered it easier, it seems, to try to get control of a simple majority of elected officials, and the Supreme Court, than it is to get two-thirds support of the Congress plus three-quarters of the states. Thus, instead of a national debate about abortion, for example, (indeed, we have never had a federal law on abortion pass Congress, let alone reach the threshold of an amendment), it was the courts that ultimately decided the issue.

But just because we haven’t been able to muster the requisite level of support for changing our Constitution in more than 50 years, that shouldn’t mean that the amendment tool is permanently neutered. All it would take is to find an issue that unites the country instead of dividing it.

Is there such an issue that might have the overwhelming support of a badly divided Congress, not to mention three-quarters of a badly divided nation?

Perhaps. Consider something along the lines of the following: “It shall be unlawful for any person to stand for federal election after that person has reached 75 years of age.  Furthermore, it shall be unlawful for any Article III judge to serve after reaching the age of 75.”

It is no secret that people are living much longer these days. And yes, there are probably some 75-year-olds who are in better shape — both physically and mentally — than people 20 years younger. But to think that age does not matter when it comes to both physical and mental ability is to ignore reality. My own mother was a vibrant 76-year-old, walking and traveling and enjoying her grandchildren. By 78  — roughly the same time as a term in Congress, but less than that of a president or senator — she had to be confined to a memory-care facility. Many, many families have similar stories. 

This is one of the reasons a constitutional amendment imposing a mandatory federal retirement age might have broad support. The issue for many would not be political, but personal. 

Yes, the impact would be dramatic. Ratification would immediately upend both the 2024 presidential election, as both Joe Biden (80) and Donald Trump (77) would be disqualified.  Justice Clarence Thomas (75) would be forced to retire.  And roughly 20 percent of the U.S. Senate, including Mitch McConnell (81), Bernie Sanders (81), and Joe Manchin (76), would be prohibited from running for re-election.

Provisions could be made to phase over time or to take effect years after ratification, if the immediate impact is deemed too dramatic. But that is what amendments are supposed to be: dramatic changes that have very broad support. 

To those who say the amendment process is too slow, consider: the 26th Amendment, which lowered the voting age to 18, went from congressional vote to approval by three-fourths of the states in just 100 days. Indeed, nine of our amendments took less than a year to be part of our governing document.

Americans used to know how to get involved to change the Constitution when it was truly important to them. It would be interesting to see if we have lost that ability permanently, or if it is something we can relearn.

Mick Mulvaney, a former congressman from South Carolina, is a contributor to NewsNation. He served as director of the Office of Management and Budget, director of the Consumer Financial Protection Bureau and acting White House chief of staff under President Donald Trump.