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Scalia's Tyranny and the Madness of Power

01/04/2011 03:57 pm ET | Updated May 25, 2011

Supreme Court Justice Antonin Scalia, apparently burdened by a parochial ideology that overwhelms his reasoning ability, has recently repeated his idea that tyranny of the majority is acceptable in our democracy as long as the victims of that tyranny are not specifically protected by our Constitution.

The problem is that this is not a joke -- it's serious business and potentially dangerous. Justice Scalia seems to have forgotten that the American Revolution was a revolution against tyranny of any kind and not a revolution to install a tyranny of the majority.

Maybe he can be forgiven his forgetfulness, since most Americans also forget. We have an inclination to ignore or deny history, a truly dangerous habit.

To carry Justice Scalia's proposition to its absurd conclusion, it would, according to Justice Scalia, be perfectly in accord with the Constitution to have laws passed legalizing the killing, cooking, and eating of women and children simply because women and children have no explicit specific protection in the Constitution's articles and amendments. According to Justice Scalia, if the majority decides to enact such legislation, so be it. He would not oppose it. Ipse dixit.

Tyranny is a social madness, whether it occurs, as it did recently, in Cambodia, the Soviet Union, or Nazi Germany -- or whether it occurs on a small scale in the nuclear family. In Ancient Rome, for example, the father of any household had the legal right to kill any of his children at will -- no reasons necessary, no questions asked.

My favorite example of the madness of tyranny occurred in France shortly before the American and French Revolutions. In the mid-18th century, the punishment of lunatics who broke the rules revealed the essence of French society under the monarchy. In the year 1757, Louis XV, forty-seven years old, was King of France. On Wednesday, January 5th, as the king was about the enter his carriage outside his Versailles palace, Robert-François Damiens, a forty-two year old unemployed domestic servant, rushed toward the king and lightly stabbed him with a knife. The wound was minor and Damiens made no attempt to escape. He stood there babbling something and he was quickly arrested.

After his arrest, Damiens, by all accounts quite mad, was tried and condemned as a regicide (though an unsuccessful regicide), and sentenced by the French parliament (a majority!) to be "taken and conveyed in a cart, wearing nothing but a shirt, holding a torch of burning wax weighing two pounds, and then in the said cart to the Palace de Grève, where on a scaffold that will be erected there, the flesh will be torn from his breasts, arms, thighs, and calves with red-hot pincers, his right hand holding the knife with which he committed the said regicide burned with sulfur, and on those places where the flesh will be torn away, poured molten lead, boiling oil, burning resin, wax and sulfur melted together, and then his body drawn and quartered by four horses, and his limbs and body consumed by fire, reduced to ashes and his ashes thrown to the winds."

All of this was done, an elaborate spectacle of death in public. His insanity did not save Damiens. After his legs and arms had been pulled away by the horses, Damiens was apparently still alive and moving his mouth as his trunk was thrown on the fire.

We need to remember that in Europe this was the age of Voltaire, Diderot, Mozart, Handel, and other talents of the Enlightenment, the so-called century of rational thought.

The execution of Damiens was publicly witnessed by rich and poor, royalty and commoners. The event took four hours and was given extensive reportage in all the capitals of Europe. The memoirist Giacomo Casanova was at the scene, wrote that he had to turn his face away and cover his ears against the shrieks of the victim, although he did see members of the Royal Court who "did not budge an inch." Everywhere in Europe, Damiens was labeled "a lunatic" -- but nowhere was the manner of his death lamented, at least not in public. A pamphlet published in England soon afterward said of Damiens' lunacy: "Of all sorts of madness, this appears to be the worst."

No. Of all sorts of madness, tyranny is definitely the worst -- and of all forms of tyranny, tyranny of the majority is definitely the most dangerous.

Justice Antonin Scalia has it wrong, definitely wrong, and his words are an embarrassment.

Note added 1/7/11: Does Justice Scalia understand what he advocates? If the Constitution must be interpreted in terms of the intent of the framers in their historical context, the Constitution is inevitably doomed to be irrelevant in time. The reason is simple: our society changes rapidly from one generation to the next due to technology and cultural evolution, making the "intent" of the framers more and more irrelevant with each passing generation. Scalia's approach to the Constitution ultimately results in a dead Constitution, with all power in the legislatures--and a consequent tyranny of the majority. To protect us against tyranny, the Constitution must be reinterpreted by each generation in the context of current technology and culture. Our current lives cannot be held hostage to the ideas of people who lived centuries ago in a different world. The issue is the conflict between Fundamentalism and Progressive Modernism.

Part of the above essay is adapted from the book Autism: Aspects of a Medical Riddle, by Dan Agin, 2011.