The Authorities of the USA Supreme Court announced the death of Scalia, Associate Justice of the Supreme Court of the USA.  The announcement indicated that Justice Scalia died on 13 February 2016 at the age of 79.

The announcement informed that Justice Scalia was found dead at a resort in West Texas.  The Authorities of the Supreme Court of the USA did not give the cause of the death of Justice Scalia.  In a Statement from the Chief Justice of the USA, Justice John G. Roberts, Jr. one can gather the deep and superb legacy of Justice Scalia.  The Statement reads in part: that Justice Scalia “was an extraordinary individual and jurist, admired and treasured by his colleagues.”  The chief Justice’s Statement adds that the demise of Justice Scalia “is a great loss to the Court and the country he so loyally served.”  Indeed, for those who knew Justice Scalia in person, or those who have read his decisions on controversial cases, or those, as this writer is, who read Justice Scalia’s academic works, the passing of Justice Scalia is a massive loss to the legal profession and legal academia.

Justice Scalia was the only child of an Italian emigrant Salvadore Eugene from Sicily who entered the USA as a teenager from Ellis Island.  His father later became professor of Romance.

Justice Scalia was  born as Antonin Gregory Scalia on 11 March 1936, at Trenton New Jersey, the USA.  He grew up at Queens, New York, the USA.  He went to a Jesuit Orders School of the Catholic Church in New York.  It would appear that it was at this Jesuit Orders School that he developed his profound conservative Christian religious conviction.

After successfully completing his elementary and secondary education, he  enrolled at Georgetown University in Washington, DC, in 1953.  His brilliance was exhibited, when he graduated Valedictoian and Summa Cum Laude with a Bachelor’s degree in history in 1957.

Without wasting much time, the future Associate Justice of the USA Supreme Court, went to New England and enrolled at Harvard Law School.

As at Georgetown University, Scalia did very well.  It was when he was at his final year at Harvard that he met his wife of 48 years, Maureen McCarthy who was an undergraduate Radcliffe College.  It was a happy marriage.  It brought to the Scalia nine children and twenty – eight grandchildren:  a true Italian Christian family of the Catholic Church.

Justice Scalia began his legal profession in 1961.  In that year and the years that followed he became a staff member at a number of law firms in Cleveland Ohio. In 1967 he took up a professorship job at the University of Virginia, School of Law, at Charlottesville, Virginia.

In 1972, President Richard Nixon appointed him as General Counsel for the Office of Telecommunications Policy.

His major task was to prepare draft regulations to govern the operations of cable television industry.  In 1974, he was appointed Assistant Attorney General for the Office of the Legal Counsel, thereafter he was appointed by President Ronald Reagan as Justice of the Court of Appeal in 1982.  Four years later, President Reagan nominated him as Associate Justice of the Supreme Court of the USA.

While on the bench of the USA Supreme Court Justice Scalia made a number of controversial rulings.

His dissenting opinions on delicate cases were described as unpleasant or vitriolic.

Where he believed a case to be of interest to him, he in most cases withdrew from the case.  An example was the case Elk Grove V Newdow, a case involving issues related to pledge of allegiance.  When George Bush won election against Al Gore he was accused to have helped Bush when the case came before the Supreme Court of the USA.

The Bush V Gore was controversial because it was the only means for resolving the impasse regarding absentee vote in the state of Florida.

Justice Scalia at the time told his critics he had to do what was right under the circumstances.

When controversies arose regarding the curbing of what was referred to as hate speech, Justice Scalia decided against to imposed prohibition on hate speech as a violation of the constitutional guarantees to free speech.  But he worked tirelessly to limit the right to abortion.

This should not be of great surprise anyone who understands the religious background of Justice Scalia.

Justice Scalia wrote excellent decisions on a number of hard and soft cases in a style that is impressive, exhilarating, enlivening, evocative, and memorable.  However, his dissenting opinions were written in what his critics described as sardonic, scathing, and sometimes outright caustic.

In cases involving criminal matters, and especially where sentencing matters were concerned, Justice Scalia had interpreted relevant statute or constitutional provision in favour of criminal defendants.  He also strived to expand parole rights.

The greatest contribution of Justice Scalia, and his outstanding legal legacy was in the area of constitutional interpretation, a topic of importance to students of legal theory.

Statutory and constitutional interpretation involves reading of authoritative texts.  This can be done by judges, certain administrative agencies, lawyers in general, and scholars.  When interpreting statutory or constitutional provisions, some judges proceed on the basis of some theories.  This could be more or less comprehensive.

The aim is to aid the judge in carrying out construction of the provisions under consideration.  In order to fulfill this task, scholars and judges adopt a number of approaches (sometimes referred to as methods).

One approach claims that interpretation is not required where the text is clear.  In fact, here the literal approach is used without saying so as the decision to be arrived at is simple.  For example, Section 200 of the Zambian Penal Code does not need interpretation.

It can be applied without raising issues relating to construction.  That section reads:

Any person who of malice aforethought causes the death of another commits murder.

The only difficulty in s.200 as set out above is the phrase ‘malice aforethought’.

Interpretation of statutory or constitutional provisions may involve the discovery of the original meaning.  Justice Scalia developed very potent theory in this respect.

Another approach attempts to differentiate between conventional practices and usages of language.  It involves the interpretation of the broad significance of a text or practice.

A fourth approach separates the interpretation of concepts from their application.  This is a more complex approach which calls for deep scholarly insight into the statute or constitution which is the subject of investigation.

Some judges in the USA adopt the original intent as a tool for statutory or constitutional interpretation.

It is claimed that this approach restrains judges and other administrative officials.

It gives political departments wider discretionary moves and actions.  It ensures that judges and other agencies of the state to abide by their commitment to the constitution.  As one commentator claims originalism represents ‘fidelity’.

Originalism, as has been said, was the approach advocated by Justice Scalia.  Because, according to him, ‘it promotes deference, it does restrict judges.’

On the views of Justice Scalia and those holding the same stance, “judges must seek an objective original understanding rather than writing their own moral and political proclivities into the constitution.” On this Justice Scalia writes:

Originalism does not aggravate the principal weakness of the system, for it establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.  And the principle defect of that approach… will, unlike nonoriginalism, lead to a more moderate rather than a more extreme result (1989).

Justice Scalia will be remembered as “the most influential Justice of the USA Supreme Court.”  He was the champion of originalism.

The challenge for all who are seeking to understand a constitutional text is “not from reading specific clauses of the constitutional document, but from reading the constitution understood more broadly.”  May Peace be on Scalia.


The Author is an

Associate Professor


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