Tuesday, July 22, 2008

Is 46 the new 34?

Hey, if we're going to "interpret" the Constitution as a living document, if the "emanations and penumbras" are more important than the actual words, then I think that this is a great argument to make...
Barack Obama is too young to be president. Yes I know he is 46 and the Constitution sets the presidential age qualification at 35 or higher, but Obama has said that we ought not to interpret the Constitution woodenly and formalistically. Perhaps we should look deeper at the presidential age limit. If we do, we will find that Obama really is too young to be president.

Many on the legal left these days advocate purposive, pragmatic interpretation of the Constitution. The idea is you look behind the text to see what function it played for the framers and you then translate the text so it will play that same function for us today. What does this mean for the presidential age qualification?

In 1789, the average life expectancy of a newborn was about 40 years, compared with about 78 today. A lot of this was because of infant mortality, but in 1789, even the average life expectancy of every man who reached age 18 was only about 47. This suggests that at best a 35-year-old age limit in 1789 might have functioned then about the way a 55- or 60-year-old age qualification would function today. On this account Obama may be old enough to drive and buy a glass of white wine, but he has a way to go before he can run for president.

How could you argue with that?

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