by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law
The Constitution has very few requirements for a person to be President of the United States. The individual must be 35 years old, 14 years a resident within the United States and a “natural born citizen.” Although the meaning of this phrase is debated and was an issue concerning Ted Cruz, there is no doubt that Hillary Clinton and Donald Trump meet all of these requirements.
Fitness to be president, then, is not about constitutional prerequisites. Rather, it is about the criteria that voters use – and should use – in evaluating the candidates. I believe that in assessing the candidates in this or any presidential election, five criteria are most important.
First, what are the candidates’ values, views on the issues and priorities? For many voters, this is answered by whether the candidate is Republican or Democrat. In this election, there is an enormous difference between Clinton and Trump on issues ranging from immigration to tax policy to racial policy to abortion to gun control. If this were the only consideration, it is hard to imagine a person who identifies as liberal voting for Trump or one who identifies as conservative voting for Clinton.
Second, does the candidate have the good judgment and temperament to be president? Crises will happen that require quick decisions. Challenges that cannot be anticipated at the time of the election are inevitable, perhaps a foreign war or an attack on the United States or a recession. Although voters likely strongly disagree over which candidate will exercise better judgment or over who has the temperament better suited to be president, few would disagree as to the importance of these personality traits in choosing a Chief Executive. One benefit to the long campaign season for the presidency is that people get much more chance to get a sense of the judgment and temperament of the candidates.
Third, is the candidate trustworthy? We all want a president who we believe will tell the truth to the American people and whose honesty is likely impeccable. Ultimately, both Bill Clinton and Richard Nixon faced impeachment charges for their lack of honesty, Clinton in his deposition about his sexual relationship with Monica Lewinsky and Richard Nixon for his handling of the Watergate cover-up. It is too easy to take for granted that there were no major scandals in either the presidency of Barack Obama or George W. Bush.
Fourth, does the candidate have the experience and competence to succeed as president? There is no agreement as to what type of experience best prepares a person to be president. President Obama had relatively short experience in government, having served in the Illinois state legislature and for a short time as a United States Senator. George W. Bush, Bill Clinton and Ronald Reagan all had been governors. Lyndon Johnson, John F. Kennedy and Harry Truman had been Senators. Dwight Eisenhower never had held an elective office, but had been a very high ranking General during World War II.
Obviously, a key difference between Hillary Clinton and Donald Trump is their experience in government. Clinton served as First Lady, a United States Senator and as Secretary of State. Trump, by contrast, has extensive business experience and presents himself as the outsider to government, which is what many of his supporters find appealing.
Fifth, does the candidate have the physical and mental ability to handle the grueling duties as president? Trump is 70 and Clinton 68. Both seem physically capable of the job. But some want more detailed medical records to be able to assess this. There have been instances in the past where serious questions arose as to a candidate’s fitness for office. In 1984, there were questions about Ronald Reagan’s mental ability and in 1944, about Franklin Roosevelt’s health.
These five criteria obviously are interrelated. Hillary Clinton’s use of a private email server and her destruction of emails raise questions about her judgment and her trustworthiness. Likewise, Donald Trump’s refusal to release his income tax information and his apparently not paying taxes for many years, raise questions about his judgment and trustworthiness.
The framers of the Constitution made a wise choice in imposing very few requirements for a person to be president of the United States. This means that the choice is left to the people and on whatever criteria they wish in assessing fitness for office. That is exactly how it should be.