One would be available in the transcripts of the hearings. She was talking about cruel and unusual punishment in the early years of this country and, I guess, suggesting that we would go back to nails in the ears with Justice Alito. It was pretty nutty.
She's been making extremely nutty comments in these hearings, as also could be heard in the Roberts' hearings.
Thanks for further explanation since I was not able to view the live hearings and have relied on FR threads for most of what I've read about the progress.
... Yet today, when we are evaluating a nominee to replace Justice Sandra Day O'Connor--a pivotal Justice, a Justice who was the fifth vote in 148 out of 193 decisions--the President continues to assert that he will only nominate those who view the Constitution through a lens of strict constructionism and originalism.I think we must remember what these terms mean. I want to take a moment to do so. It is widely accepted among legal scholars that strict constructionists and originalists look to evaluate the Constitution based on what the words say as written and what the Framers intended those words to mean at the time they were written.
If we examine what these terms could mean when applied to actual constitutional questions today, it becomes clear why most legal scholars view the Constitution as a living document, able to adjust to the differences of the country today. Remember, in colonial times, there were 13 colonies and around 3 million people. Today we are close to 300 million people and we are 50 States.
Justice Brennan wrote in 1986 about this, and I quote him:
During colonial times, pillorying, flogging, branding, and cropping and nailing of the ears were practiced in this country. Thus, if we were to turn blindly to history for answers to troubling constitutional questions, we would have to conclude that these practices would withstand challenge under the cruel and unusual clause of the eighth amendment.He wrote that in the Harvard Law Review in December of 1986.
If an originalist analysis were applied to the 14th amendment, women would not be provided equal protection under the Constitution, interracial marriages could be outlawed, schools could still be segregated, and the principle of one man, one vote would not govern the way we elect our representatives.
My concerns about confirming a strict constructionist or originalist to the Court are best demonstrated by what this legal reasoning could mean in three important areas: congressional authority to enact legislation, checks on Presidential powers, and individual liberty and privacy interests. I want to talk about these for a minute in the context of Judge Alito.