Are Constitutional Amendments Needed to Get Better Presidents?  By J.E. Dean

Foreigners are forgiven if they look at our most recent elections and scratch their heads.  In 2016, voters elected a candidate with no government experience (other than fighting government), a checkered personal and business history, and signs of psychosis.  A more qualified, better known, and experienced candidate was passed over.

In 2020, one party renominated a failed President with a documented history of lying and grift.  The other party nominated a 77-year-old former vice president while passing over several candidates obviously qualified to run the country.  

How does this happen?  More importantly, is there anything we can do to avoid a repeat?

Actually, there is. But it won’t be easy. The Presidential selection process needs to be improved, making it look more like a job interview and less like a reality TV competition with the winner being either the most obnoxious candidate or the last survivor.

Unfortunately, an amendment to the Constitution may be needed. That is likely to make the process lengthy and a divisive process, especially if the “reforms” are viewed as favoring one party over the other. Also, special care is needed to avoid a “solution” worse than the problem.  There are good arguments to be made that any new restrictions on who can serve as President reduces the right of citizens to choose one.

With that in mind and if you look for lessons in the last two Presidential elections, here are a handful of approaches to improve the quality or fitness of the women and men we might choose in the future to head our nation:

Age:

The Constitution  (Article II, Section 1, Clause 5) provides that a candidate for President must be at least 35 years old to be elected.  That qualification has largely been unquestioned since written.  Most of us would argue that it has never really come into play or kept a good candidate from running. But what about an upper limit?  Should anyone over 75 be elected president?

Gary Schmitt, a resident scholar at the American Enterprise Institute, suggested 70 as a possible limit.  He noted, importantly, that the number was, like the current minimum age, somewhat arbitrary.  All of us know 50-year-olds who are “over the hill” and 75 or 80-year-olds who are not.  

If an age 70, or 75, limit was established, it may make sense to exclude candidates running for reelection. Covering them could effectively deny a good President the opportunity to a second term.  Some would see this as unfair, especially if the candidate were in good health and doing a good job. 

If the new requirement were enacted, the nation would benefit in the form of increased political stability. The possibility of a President becoming debilitated in office, as occurred during Reagan’s second term and, arguably, Trump’s first, would be reduced.  

FBI Background Check:

Painful as it is to consider, it is quite possible that America elected a criminal as President in 2016.  Mind you, Donald Trump hasn’t been convicted of a crime yet, but some legal scholars expect that to change in 2021 once Trump leaves office.  Wouldn’t it have been better for this issue to be raised before, rather than after, election day?

Given that the Presidential campaign cycle now lasts more than two years, it is unlikely that the requirement for an FBI check would interfere with that cycle.

The benefits of an FBI check are obvious.  A candidate found to pose a national security risk would be flagged. The possibility of crimes committed before government service might be identified.   Examples corresponding to these two scenarios are Trump and Richard Nixon’s first vice president, Spiro Agnew.

Tax Returns:

A candidate’s tax returns can inform voters on the quality of candidates, especially their honesty, and even their patriotism. What does aggressive avoidance of federal and state taxes tell us about a candidate?  That depends on your perspective.  Some people admire Trump’s tax strategy (pay as little as possible). Others believe that all of us should pay our fair share of taxes, especially self-described billionaires.

Shouldn’t voters get access to a candidate’s tax returns so they can make up their own minds?

Until Trump, all recent Presidential candidates released their tax returns. Trump successfully fought release of his returns for four years, repeatedly claiming that he was under audit.  Although other recent Presidential candidates have disclosed their tax returns, the Trump precedent could be cited by future Presidents with something to worry about in their tax returns.

To prevent a repeat of the Trump farce, the Constitution should require the release of at least three years’ worth of returns.  To give candidates an advance warning of the new requirement, it should be prospectively applied.  Making it effective three years after the ratification of the amendment would give all candidates the opportunity to “get their house in order” with the knowledge that the tax returns they filed would be released to voters.

Physical:

Should voters be informed about the physical health of a candidate?  Yes.  If a candidate has a progressive disease making it unlikely for them to complete their term of office, voters should know about it before election day. Similarly, if candidates are on drugs that alter their moods or otherwise interfere with their ability to make clear decisions, voters should know.

In the most recent election, many people, including the President’s own niece, questioned the President’s sanity.  Other people believe that a candidate suffering from senility or dementia was just elected President.  Wouldn’t it make sense for the full results of comprehensive physicals were released to the public on all major candidates?  This ideally would occur well in advance of the primary season.

There are obvious issues to be addressed on this idea, among them personal privacy.  Any requirement for a physical needs to be drafted carefully with these and other concerns in mind. 

Too Early to Act?

Any change to the Constitution needs to be approached carefully.  An amendment on Presidential qualifications would entail major risks of “getting it wrong.”  That does not mean that the issues associated with who serves as our president should not be examined.  

Only the next four years will tell whether the damage done by the Trump administration is permanent, or if a 78-year-old President has the energy and focus to serve effectively as President.

Because Trump was the worse choice of the two final presidential candidates, we should be glad that Biden ultimately prevailed in the electoral college. Still it may be time to revisit Article II, Section 1 of the Constitution and consider additional qualifications for the office.

J.E. Dean of Oxford is a retired attorney and public affairs consultant. For more than 30 years, he advised clients on federal education and social service policy.