by Neil Siegel, David W. Ichel Professor of Law and Professor of Political Science, Co-Director of the Program in Public Law, and Director of the DC Summer Institute on Law and Policy, Duke University School of Law
In the summer of 2011, Justice Scalia taught a separation of powers course in Duke Law School’s summer program in Geneva. I was honored to serve as his assistant, which meant that I answered his questions in class and—more importantly from his perspective—wrote and graded his exam.
On the last day of class, Justice Scalia gave what Court watchers have come to regard as his originalism “stump speech,” in which he essentially argued that one is either an originalist on matters of constitutional interpretation or else one is making it up. When he was done, he asked for critical responses from anyone in the class, including law professors. (He was exemplary about hearing other points of view and generous in many other ways.) Because he was looking right at me when he asked for pushback, I raised my hand.
I had a feeling that he was expecting me to criticize originalism as descriptively inaccurate and/or normatively unattractive. I declined the opportunity. Instead, I decided to (gently) criticize him in the form of a compliment. I told him and the class that he was way too sensible to be just an originalist. Rather, I suggested (using plentiful examples) that he was indeed an originalist some of the time, but that he was also a traditionalist, and a structuralist, and a doctrinalist, and—because he had to decide when to be what—a prudentialist. In short, I implied that he was a living constitutionalist.
When I was done speaking, Justice Scalia paused, thought for a moment, and responded that maybe he needed a new word for what he was. I replied, “How about a judge?” (I dared not say “living constitutionalist.”) He laughed, paused again, and returned to his stump speech.