The question of age and leadership capacity in the presidency has gained renewed urgency in recent years, as the United States witnesses an aging political class with its two most recent presidents being the oldest ever elected to office. This concern has sparked growing calls for constitutional reform in the US, specifically, for the establishment of an upper age limit for presidential candidates. The issue, while politically sensitive, invites serious constitutional and legal scrutiny.

“Gentlemen, you will permit me to put on my spectacles, for, I have grown not only gray but almost blind in the service of my country” cynically remarked George Washington, the first president of the United States six years before becoming president (in 1783) when he was merely 51 years old. Washington became president at the age of 57 and this age was considered average for the next 44 presidents with the exception of three presidents. Ronald Reagan became president when he was almost 70 years old and the last two presidents of the country were even older. Donald Trump (in the beginning of his second term) and Joe Biden were both 78 years old when becoming president. This shows an unexpected rise in the age of such a demanding and high position.

The US Constitution (Article II, Section 1, Clause 5) currently stipulates a minimum age requirement of 35 years for presidential eligibility, reflecting the Founding Fathers’ belief in the necessity of a certain maturity and life experience for the nation’s highest office. However, it provides no corresponding upper age limit. At the time of the Constitution’s drafting in the 18th century, life expectancy was significantly lower than it is today, making the notion of elderly individuals holding high office far less common or pressing. This historical context suggests that the absence of an upper age threshold was more a function of demographic reality than deliberate intent as shown in the paragraph before. Yet, this omission is no longer merely a theoretical dilemma; it is a pressing constitutional question.

In recent years, the presidency has become occupied by individuals well into their seventies and even eighties, especially after the previous presidential term of Joe Biden, whose sanity has been questioned during his presidency multiple times by the media and even foreign politicians. While experience is undoubtedly valuable, age brings real and unavoidable physiological risks, particularly in a role that demands intense mental acuity, sustained energy, and the capacity to handle high-pressure decision-making at all hours. Despite these enormous responsibilities, there is no constitutional requirement that a President shall be of “sound mind”. The absence of an upper age limit in the Constitution is a vulnerability that seems to warrant correction. This absence becomes more striking when we consider the text of the inauguration oath. Upon taking office, a President must swear to “faithfully execute the Office of President of the United States” and to “preserve, protect and defend the Constitution of the United States.” While the language presupposes the ability to understand and carry out the duties of the office, it does not impose, express or presume any standard of mental fitness and is regarded rather as a solemn promise, not a medical “insurance” or assessment of the President-to-be’s mental state.

In most areas of law, capacity matters significantly. Courts routinely evaluate whether individuals are of sound mind when they sign contracts, create wills, or stand trial before a court. But no such inquiry is required for someone to assume the presidency. Some might argue that mental fitness is a subjective or discriminatory standard. Others may trust voters to serve as the ultimate arbiters. But one must recognize that the presidency is not just any job, not even any political position but it is the center of American governance and is even a key figure globally, who shall lead by example. In most professions of great consequence, pilots, judges, neurosurgeons, mental capacity is not merely assumed but evaluated, but in the case of the presidency, there was no precedent to even consider such an assessment.

The constitutional silence on the president’s state of mind reflects the historical context in which the document was drafted and a faith in the electoral process to weed out unfit candidates. Yet, modern history has demonstrated the limits of that faith. Presidents have served while suffering from strokes, illnesses, and episodes of cognitive impairment. The Constitution’s primary tool for addressing incapacity, and being closest to what could be interpreted as a “sound mind clause”, is the 25th Amendment. This amendment was adopted four years after the assassination of John F. Kennedy in 1963. Ratified in 1967, it provides procedures for transferring power if a President is “unable to discharge the powers and duties of his office.” However, invoking it requires political will and coordination between the Vice President and a majority of the Cabinet, a scenario fraught with political risk and ambiguity. This supposed solution is a reactive measure, not a preventative one so it is not adequate to filter presidential candidates based on their mental state and fitness. Therefore, the Amendment is unable to serve as a “sound mind clause”, prompting lawmakers to look for alternative solutions.

Some members of Congress have taken steps toward this reform. In 2023, Representative John James introduced House Joint Resolution 87, which proposed a constitutional amendment to bar any individual from being elected to federal office if they would be 75 or older during their term. Sensibly, the amendment includes a “grandfather clause” to ensure it would not apply retroactively. Its intent is not to target specific individuals, but to future-proof the presidency against the hazards of age-related decline of mental state and fitness. Public voices outside of Congress have echoed this sentiment. Activists and commentators have called for structural reforms to a political system that appears increasingly detached from the generational realities of the electorate and that effective governance in a rapidly changing world requires not only wisdom, but also the vigor to respond to crises swiftly and soundly.

The critics of an upper age limit argue that age alone is not a sufficient indicator of incapacity and that such a rule would be inherently discriminatory. After all, cognitive decline is not guaranteed with age, and voters should retain the right to judge candidates on a case-by-case basis. Moreover, setting the limit at 75 can seem arbitrary without real medical reasoning behind this number. Also, other important offices can be held by elderly candidates as well, such as being a Supreme Court Justice. Yet, the legal system already accepts age as a criterion when it is rooted in compelling interests, such as the minimum ages for voting, driving, or consuming alcohol.

From a legal perspective, the path forward is not easy. Amending the Constitution is notoriously difficult, requiring supermajority approval in Congress and ratification by three-fourths of the states. However, ignoring the realities of aging in the context of presidential leadership could lead to a failure that could carry grave consequences if this tendency of the presidential age continues. Setting a maximum age for the presidency would not be about punishing the elderly and would not aim at their exclusion from politics. It would be about recognizing the extreme demands of the office and the responsibility of safeguarding national interests. Just as one trusts the Constitution’s lower age threshold to ensure a basic level of maturity, one should also trust that an upper limit could ensure continued competence.

Dorina BOSITS is a law student at the Széchenyi István University of Győr, Hungary, and an international finance and accounting graduate of the University of Applied Sciences of Wiener Neustadt, Austria. She is currently enrolled for an exchange semester at the Karl Franzes University of Graz, Austria. The main area of her research includes freedom of speech, digitalization, space law, data protection, and financial law. She is a student at the Law School of MCC and a member of ELSA Győr.