Must be of age

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A posting in National Review's The Buzz blog, prompted me to send an email. The Buzz's Eric Pfeiffer noted that Sen. Joseph Biden is writing an autobiography and that many people were wondering how he could have been elected senator, as he was in November 1972, at the age of 29, one year below the constitutionally required age of 30. The answer, which Pfeiffer provided, is that Biden turned 30 just two weeks after Election Day and so was of the required age when he was sworn in in January 1973.

This prompted me to review some history.

Rush Holt Sr., of West Virginia, was elected to the Senate in November 1934 at age 29. He was not allowed to take his seat until June 1935, when he turned 30. His son, Rush Holt Jr., is currently the congressman from the 12th District of New Jersey.Henry Clay, born April 12, 1777, was, according to the Biographical Directory of the United States Congress 1789-1989, "elected to the United States Senate to fill the vacancy caused by the resignation of John Adair and served from November 19, 1806, to March 3, 1807, despite being younger than the constitutional age limit of thirty years." Clay's biographer Robert Remini, in the excerpt I checked, gives no reason why Clay was seated despite his age.That prompted me to wonder why there are age limits in the Constitution at all. Why didn't the Framers trust the legislatures (who under their scheme elected senators) or the voters (who elected representatives) to choose anyone of any age?

I think the answer may lie in British parliamentary history, in which I have been doing research for a book on the Glorious Revolution of 1688-89. In the 17th century it appears that members of the House of Lords could take their seats and vote only after they had reached the age of 21, though some (the Earl of Shaftesbury and the Earl of Sunderland were important examples) inherited their titles when they were still children. But members under 21 elected to the House of Commons were seated. The introductory survey to the History of Parliament Trust's The House of Commons 1660-1690 tells the story:

To each Parliament a number of men under 21 were returned, 43 in all, of whom 24 were sons of peers. James Herbert and the Hon. Ralph Grey were each returned three times while under age, and Charles Somerset, a younger son of Henry Somerset, Lord Herbert of Raglan, was elected no less than four times before he reached his majority. But perhaps the most remarkable case is that of Christopher Monck, heir to George Monck, 1st Duke of Albemarle, who was returned as a knight of the shire for Devon in a by-electioon in 1667 when he was only 13[!]. Apparently no questions were raised at the time of his entrance into the House; he was appointed to several committees and actually made a speech when he was not yet 15, probably the youngest Member ever to speak on the floor of the House. When his father died in January 1670, however, a curious constitutional problem arose. Still under 21, he could not take his seat in the Upper House. Therefore the question was: should a new writ be issued for Devon? This problem was complicated by the fact that following the death of the 1st duke, Sir John Northcote and the 1st Earl of Bath had delayed the ordering of the writ in order to allow them to canvass for their candidate. This was debated on 18 Jan. 1671. The seat was declared vacant and a new writ was ordered. Sir Edward Dering reported that during the course of the debate "it was said by several persons that no man under age ought to sit in our House, and I think my Lord Coke is somewhat of that opinion, but I am sure the common practice of that House has been otherwise; and none did name any precedent where anyone has been turned out for being under age."

In other words, rich and powerful lords got their young sons and dependents elected to the House of Commons. This was the sort of concentration of power that the Framers did not like.

What did the Framers say during the Constitutional Convention? From my quick reading of James Madison's notes, it seems they said very little. The drafting committee proposed establishing an age limit for the Senate (the word itself comes from the Latin word for old) and left it blank. On June 12 the states voted 7-4 to insert 30. But the draft provided no age for representatives.

On June 22 George Mason of Virginia, a man so jealous of concentrated power that he ended up opposing the Constitution, proposed an age requirement of 25. The second sentence below suggests he was familiar with the House of Commons's practice of seating minors as members:

Col. Mason moved to insert 'twenty-five years of age as a qualification for members of the 1st branch." He thought it absurd that a man to day should not be permitted by law to make a bargain for himself, and tomorrow should be authorized to manage the affairs of a great nation. It was the more extraordinary as every man carried with him in his own experience a scale for measuring the deficiency of young politicians; since he would if interrogated 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. It had been said that Congs. had proved a good school for our young men. It might be so for any thing he knew but if it were, he chose that they should bear the expense of their own education.

The case against was made by James Wilson of Pennsylvania:

Mr. Wilson was agst. abridging the rights of election in any shape. It was the same thing whether this were done by disqualifying the objects of choice, or the person chusing. The motion tended to damp the effects of genius, and of laudable ambition. There was no more reason for incapacitating youth than age, where the requisite qualifications were found. Many instances might be mentioned of the signal services rendered in high stations to the public before the age of 25: The present Mr. Pitt and Lord Bolingbroke were striking instances.

William Pitt the Younger was then prime minister, an office he first held when he was 24; his father was perhaps remembered fondly for his support of the demands of the American colonies. Bolingbroke was surely remembered fondly for his writings (see Bernard Bailyn's The Ideological Origins of the American Revolution. But evidently these examples meant less to the Framers than that of George III, who had become king at 22.

The states voted 7-3 to require members of the House to be 25 years old. Connecticut, Delaware, Maryland, New Jersey, North Carolina, South Carolina, and Virginia voted aye; Georgia, Massachusetts, and Pennsylvania voted no; New York was equally divided and so cast no vote.

The requirement that the president be at least 35 was proposed on August 22 and and was agreed to unanimously on September 7.

All of which prompts the question: If we were redrafting the Constitution today, would we include age requirements? Would we agree with George Mason or with James Wilson?