The idiot brigade in the mainstream media is running around saying President Donald Trump blamed the U.S. Constitution for his alleged lack of legislative achievements in the first 100 days of his presidency. This is #FakeNews.
The claim is that the president called the Constitution “archaic” in a an interview with Fox News’ Martha McCallum last Friday. “It’s a very rough system. It’s an archaic system,” Trump said. “It’s really a bad thing for the country.”
The headlines everywhere in the media assailed Trump for attacking the U.S. Constitution because he’s not getting his way. At The Guardian, “Donald Trump blames constitution for chaos of his first 100 days.” The Independent writes, “Donald Trump slams 'archaic' US constitution that is 'really bad' for the country.” Salon declared, “Donald Trump doesn’t like the ‘archaic’Constitution: ‘It’s really a bad thing for the country’.”
“President Donald Trump has already made it clear that he’s upset about how the job of being president isn’t as easy as he thought it would be. Now the president and his chief of staff are blaming the Constitution for their remarkably unproductive first 100 days,” Salon’s Matthew Rozsa writes.
He continues: “During an interview with Fox News to discuss his first 100 days as president, Trump denounced the constitutional system of checks and balances as ‘archaic.’”
Noor Al-Sibai, a writer for Bustle, also blasted President Trump for “lamenting that checks and balances are ‘archaic’” and wrote, “The systems of checks and balances Trump believes are "archaic" (a word he is clearly misusing — the country is only 241 years old, and the constitution is 229) are in place to deter the sort of authoritarianism many fear from this administration.”
MSNBC’s Joe Scarborough added fuel to the fire as well.
Your party has a monopoly on power. How clueless to be politically impotent with such an advantage. Don't blame America's Constitution. https://t.co/QQeI8E7kl6
— Joe Scarborough (@JoeNBC) April 29, 2017
They are all wrong.
Let’s be perfectly clear, as others have pointed out, Donald Trump did not criticize the U.S. Constitution over the weekend. He did not attack our constitutional system of checks and balances. He was speaking of the House and Senate rules in Congress that Democrats are abusing to obstruct his agenda. Specifically, Trump was talking about the filibuster rules in the U.S. Senate.
Read for yourself what Trump said (emphasis added):
TRUMP: I understand what has to be done, I get things done I've always been a closer. We don't have a lot of closers in politics and I understand why. It's a very rough system, it's an archaic system. You look at the rules of the Senate, even the rules of the House, but the rule of the Senate and some of the things you have to go through, it's really a bad thing for the country in my opinion.
There are archaic rules and maybe at some point, we're going to have to take those rules on because for the good of the nation things are going to have to be different. You can't go through a process like this. It's not fair, it forces you to make bad decisions. I mean, if you're forced into doing things that you would normally not do except for these archaic rules, so –
MACCALLUM: Like what, how would you change them?
TRUMP: Well, you know, you look at the voting and you look at the filibuster system. And it used to be. You know, I always thought of filibuster where you stand up and you talk all day and then somebody else—
MACCALLUM: You don't have to do that anymore.
TRUMP: No, you don't have to do it anymore. Today you say filibuster, guys sit home and they watch television or whatever they do. I think, you know, the filibuster concept is not a good concept to start off with but if you're going to filibuster, let somebody stand up for 20 hours and talk and do what they have to do or even if they are reading comic books to everybody, let them do it, but honestly, the whole, with so many bad concepts in our rules and it's forcing bad decisions. I really see. I see just -- I've seen this -- I've seen it over the years where bad decisions are made, decisions that nobody wanted are made because of archaic rules and that's something that I think we're going to have to change.
This might be news to some, but anyone who has read and understood the U.S. Constitution knows that the filibuster and the Senate rules that govern its use are found nowhere in our founding documents. Article 1 section 5 of the Constitution states that “Each House may determine the Rules of its Proceedings …” giving authority to both Houses of Congress to determine how to govern themselves, but beyond that it offers no prescriptions for what those rules should look like.
The filibuster is not in the Constitution. It is not a part of our system of checks and balances. And further, its modern incarnation is unrecognizable compared to its original form.
As President Trump noted, when most people think of the filibuster, they imagine a lone U.S. Senator standing in opposition to a bill or a nomination, refusing to yield the floor and speaking until he is no longer able to run out the legislative clock and grind the Senate to a halt, like the fictional Sen. Jefferson Smith in “Mr. Smith Goes to Washington.”
But as U.S. Rep. Tom McClintock eloquently explained in a speech delivered in January 2017 at Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., things have changed.
The filibuster is fundamentally different today because of two changes to Senate rules—changes that explain the body’s current inability to act. The first occurred in 1917 in response to a filibuster of something called the Armed Ship Bill. The Senate adopted a cloture rule setting the threshold for ending debate at two-thirds of those present and voting, later changed to three-fifths of the whole Senate. Even then, this change was in keeping with common parliamentary practice. And even after its passage, the filibuster’s physically demanding nature meant that it was seldom employed. There were only 58 filibusters in the next 52 years—barely one per year.
But beginning in 1970, the number of filibusters exploded by a magnitude of 36-fold. There have been 1,700 in the 46 years since then. Why? Because in 1970, Senate Majority Leader Mike Mansfield instituted a “two-track” system that allowed the Senate, by unanimous consent or the approval of the minority leader, to bypass a filibustered bill and go on to another. This relieved a filibustering senator of the job of having to talk through the night and it relieved his colleagues of their frustration.
The effect of the rule change, McClintock said, was to remove the hard work from being the opposition and empower the minority to act as obstructionists.
The filibuster thus entered the couch-potato world of virtual reality, where an actual speech is no longer required to block a vote. Today the mere threat of a filibuster suffices to kill a bill as the Senate shrugs and goes on to other business. The filibuster has been stripped of all the unpleasantness that discouraged its use and encouraged compromise and resolution.
As a result, the number of filibusters in the U.S. senate has exploded in the 46 years following that rule change. Which brings us to President Trump’s agenda being stalled in the U.S. Senate because Republicans do not have 60 votes to overcome a Democratic filibuster. As the president himself has complained:
The reason for the plan negotiated between the Republicans and Democrats is that we need 60 votes in the Senate which are not there! We....
— Donald J. Trump (@realDonaldTrump) May 2, 2017
either elect more Republican Senators in 2018 or change the rules now to 51%. Our country needs a good "shutdown" in September to fix mess!
— Donald J. Trump (@realDonaldTrump) May 2, 2017
So today, 41 U.S. Senators can stall whatever pieces of legislation they wish by doing nothing. While the framers of the U.S. Constitution installed several protections for the minority in the Constitution – such as the Electoral College – they never intended for a small minority of 41 people to be able to thwart the legislative agenda of an elected majority wholesale.
There is no cogent argument against restoring the filibuster to its original intended role, as President Trump suggested doing. With just 20 percent of the American people having a favorable opinion of Congress, the American people would welcome a return to regular order in which the elected majority’s legislative agenda becomes law. The president’s criticisms of the “archaic” rules in the Senate were fair and have merit. And he certainly did not attack the U.S. Constitution.
Eugene Volokh makes a salient point at the Washington Post that members of the British press writing for the Independent or the Guardian may be confusing their understanding of the British constitution for our American understanding of the U.S. Constitution.
“The traditional sense of the ‘British constitution,’ for instance, referred to the body of political traditions and rules that defined how the British government operated, rather than to a single hard-to-amend document like the U.S. Constitution,” Volokh writes. But the U.S. Constitution is a specific document, wherein you will not find the rules of the House and Senate included in our system of checks and balances.
However, Salon and the others in American media have no excuse. To claim that President Trump is attacking the constitutional framework of the United States government by calling for a restoration of the filibuster to its original form is at best historically ignorant and at worse a malicious smear against the president of the United States.
But liberal news outlets like Salon are in the habit of publishing malicious smears.