While the topic of aged politicians rolls through the presidential race…at the state level, North Dakota voters could decide on an initiative that would set an 80-year age limit for state and congressional officeholders.
Proponents of the new measure sponsored a successful term limits amendment in 2022. The new age limit proposal picks up both on the long-simmering desire for congressional terms limits, and the Biden-Trump age issue in the presidential sweepstakes.
According to the initiative's sponsor, “Retire Congress North Dakota”:
“With no term limits for Congress and the age and cognitive skills of elected officials taking center stage as of late, many are calling for age limits for Congress,” said Hendrix. “North Dakotans, regardless of political identity, believe that age limits are needed as evidenced by the substantial number of petitions signed by North Dakota residents.”
Fair enough. But the constitutional grounds for states adding qualifications for office holders was firmly established in the 1995 case U. S. Term Limits v. Thornton. In a 5-4 ruling the justices held that only a constitutional amendment – not individual state laws or congressional legislation – could add qualifications, like term limits.
On its face, the age limit proposal runs headlong into the Thornton precedent. But the current court has shown that precedent can occasionally be cast aside, as the court did on abortion.
Of the nine current Supreme Court justices, only one – Clarence Thomas — was a member of the court that narrowly ruled against state-mandated congressional term limits in Thornton.
Thomas wrote the dissent in that case. His introduction is still worth recalling:
Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.
Because the majority fundamentally misunderstands the notion of “reserved” powers, I start with some first principles. Contrary to the majority's suggestion, the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications for their representatives in Congress, or to authorize their elected state legislators to do so.
Our system of government rests on one overriding principle: All power stems from the consent of the people. To phrase the principle in this way, however, is to be imprecise about something important to the notion of “reserved” powers. The ultimate source of the Constitution's authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.
North Dakota may set in motion a chain of events that revisits Thomas' view of the relationship between the people, the states, and the federal government. It may also turn attention to the issue of the reserved powers of the people and the states as guaranteed in the Ninth and Tenth Amendments.
The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.
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