On Monday, Sen. Angus King (I-ME) argued against the judicial philosophy of “originalism,” which Supreme Court justice nominee Judge Amy Coney Barrett said in her confirmation hearings should guide judges in their interpretation and application of constitutional principles.
King said on MSNBC’s “Morning Joe” that being an originalist “just doesn’t make sense” and does not allow for “ethical and moral and political growth.” He added originalism acts as a “cloak” or “strategy to strangle the federal government via the U.S. Supreme Court.”
Partial transcript as follows:
Well, number one, one of the frustrating parts about this process is we have this kabuki dance of these hearings where the nominees won’t tell you what they think. They won’t talk about any cases. They say, well, I can’t talk about that, it may a case. They’re deliberately trying to sort of obscure where they’re headed which is exactly what we need to know when making a confirmation. I mean, it’s like dating someone, and saying, you know, do you like to travel and your date says, well, I’m not sure we’ll have to check that when you ask me to travel after we’re married. I mean, this is a lifetime commitment.
But here’s the other problem, she talks about being an originalist, that’s the term. It goes back to Antonin Scalia and a lot of conservative scholarship. Basically what they’re saying is the only thing you can look at when you interpret the Constitution is the text, what it says and what the intention of those 55 men in Philadelphia in the summer of 1787 was. Here’s the problem, Mika. It just doesn’t make sense. For example, Article I section 8 of the Constitution says that Congress can raise and support an army and a Navy. What about an air force? It’s not mentioned in the text. The text isn’t ambiguous, and I don’t think those guys in Philadelphia thought about the Wright brothers 115 years later. So, is the Air Force unconstitutional? Under the originalist text it is. But you know they say, well, it was protecting the country. That’s just a small example. Something like that is fairly easy.
What about what does due process mean? Is that obvious? Can you really determine that from what the fellows talked about in that convention? You really can’t. You have to have a Constitution and a Supreme Court that allows for some ethical and moral and political growth, and they want to make it frozen in time and really — here’s the endpoint, Mika. What these folks really want to do is cripple the federal government. This is a theory. This originalism stuff has been invented as a cloak to cover a theory of constitutional practice that would take us back to 1933 when the Supreme Court was knocking down all of the New Deal and saying that’s not something the federal government can do, they can’t do and we are talking about things like the Affordable Care Act, but we’re also talking about the EPA, we’re talking about the FDA. We’re talking about trying to do something about climate change. This is a strategy to strangle the federal government via the U.S. Supreme Court.
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