Is the Constitution archaic, as President Donald Trump implied recently in an interview with Fox News? The answer is a resounding yes — if you’re an originalist, as Trump claims to be. The president unwittingly hit on the best possible justification for a living Constitution, which evolves to meet changing times. That evolution, of course, needs to take account of the fundamental elements necessary for life — such as the separation of powers. And it would be a disastrous idea to amend the First Amendment, as Chief of Staff Reince Priebus hinted in another recent interview. But broadly speaking, the way to avoid archaism is to recognize that the Constitution is alive, and like every living thing, must adapt to changing circumstances.
Let’s start with precision, something not always present in Trump’s remarks or liberal criticism of them. Trump didn’t literally say the Constitution was archaic. Instead, he referred to “politics” generally:
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 might think that Trump is saying it’s archaic for Congress to vote before passing a law. But that radical statement can’t fairly be attributed to him. Read closely, Trump’s concerns seem to be mainly about Senate rules like the filibuster.
Notably, the filibuster isn’t in the Constitution. In fact, the filibuster is seriously undemocratic, because it allows a Senate minority to block the majority. And for the record, Trump is entirely right to think of the filibuster as archaic. Not only is it old, it has a shameful history of being used to block civil-rights legislation in the Senate.
The only thing that makes the filibuster constitutional is that, like other rules of the House and Senate, it falls within Congress’s power to make its own internal rules. Article 1, Section 5 of the Constitution says that “each house may determine the rules of its proceedings.”
That means the president can’t constitutionally do anything about such rules. When Trump said, “We’re going to have to take those rules on,” the term “we” must be interpreted pretty loosely. The most Trump can do is use his bully pulpit to criticize.
In fact, the filibuster has been shrinking in recent years, as both Democrats and Republicans have used the so-called nuclear option to eliminate its use for judicial nominees. The filibuster is still in place for legislation, however. For it to be eliminated would mean further evolution in legislative procedure.
Indeed, such evolution is desirable and necessary in constitutional affairs more generally. Take the administrative state, about which Trump’s Supreme Court appointee, Neil Gorsuch, has written critically.
The administrative state isn’t in the Constitution, strictly speaking. Independent agencies weren’t contemplated by the founders. Neither was the ability of many agencies to enact regulations that have the force of law, or their broad capacity to adjudicate. It’s a commonplace of administrative law that agencies exercise these quasi-legislative and quasi-judicial functions despite the fact that they nominally belong to the executive branch.
This governmental evolution requires constant updating. A case in point: the Congressional Review Act of 1996, which gives Congress 60 legislative days to reverse administrative orders issued by a previous presidential administration. Trump has signed 13 bills reversing Obama policies. That’s 12 more times than the law had ever been used before.
The idea behind the act is that Congress has the inherent lawmaking authority to review and reverse decisions made by the apparatus of the administrative state. Actually rolling back regulation may be unwise, but the Congressional Review Act itself represents a creative, evolutionary component of making the administrative state into a functioning part of the U.S. constitutional structure.
Because Congress has the power to reverse regulation, the authority of the agencies to make those regulations in the first place is rendered more legitimate.
It’s worth noting that the Congressional Review Act was passed by a Republican Congress as part of the “Contract With America” — and signed by President Bill Clinton. In some general way, the law may be better for Republicans than Democrats, because Democrats tend to favor more regulation than Republicans. Yet it reflects an underlying democratic model of lawmaking, in which Congress and the president who signs the law must take responsibility for the regulations they roll back.
Eliminating the administrative state on originalist grounds would be absurd — and archaic, to use Trump’s words. A functioning constitutional system needs agencies. Those agencies in turn need to be part of a broader constitutional ecosystem that includes both judicial and legislative oversight.
The upshot is that it’s nice Trump has discovered that there are archaisms in the Constitution. That’s why it needs to evolve, and why originalism is a seriously mistaken constitutional philosophy.
The separation of powers, however, isn’t archaic. Neither is the First Amendment. They are the spine and lifeblood of the Constitution. Take them out, and the system will end. Never forget: The opposite of the living Constitution is a dead one.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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Noah Feldman at firstname.lastname@example.org
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