The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Independent (U.K.) writes, "Donald Trump slams 'archaic' US constitution that is 'really bad' for the country." The Guardian (U.K.) likewise writes, "Donald Trump blames constitution for chaos of his first 100 days." Salon picks that up, saying,
Donald Trump doesn't like the "archaic" Constitution: "It's really a bad thing for the country"
Many other online discussions seem to be echoing that, too.
But I don't think that that was what Trump was saying in the Fox News interview that was cited as the basis for the assertions. Rather, Trump was faulting the internal House and Senate rules—such as the filibuster—which are not set by the Constitution. (The Constitution authorizes each chamber to set its own rules but doesn't specify the rules themselves, which are generally set by majority vote within each chamber.) Here is the relevant passage:
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 rules 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 –
[MARTHA] 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.
Now perhaps some of the British media outlets have a more capacious view of "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. But "the U.S. Constitution" generally refers to the document (and the precedents interpreting the document), and the filibuster rule and other House and Senate rules don't fit within that term. American sources, such as Salon, should be especially careful about that distinction, it seems to me.
See Charlie Martin (PJ Media), who also makes this point.