177. Concentration

George Orwell had the gift of clarity.  In his essays and nonfiction books he wrote a nearly miraculous prose.  The three goals of good writing - precision, concision, clarity - seemed to flow with the ink from his pen.  But, as he himself said in various ways, clear writing is the product of clear thought, and Orwell thought clearly.  He also saw.

In Spain he fought for the POUM, was isolated in trenches on the frontier, was shot through the throat, nearly died, and while recovering narrowly escaped being arrested as a political prisoner - and still his analysis of the political situation was almost uncannily accurate.  Since the collapse of Communism, archival research has shown how right he was. 

In Homage to Catalonia he analyzed the conflict between the Communists - that is, the Russians, and those working for the Russian national interest, many of them unaware they were doing so - and the anarchists, such as his own POUM militia.  It meant nothing to the Communists that the POUM were fighting on the front line against fascist troops - they were still, "objectively," pro-fascist.  (You can get a sense of what Marxists meant by the word "objective" in this message  from a rusty time capsule.)

Orwell summed up the Communist "line" with regard to conditions in Barcelona in 1936-1937,  as repeated by all kinds of fellow-traveling or naive journalists: "'Above all for the sake of efficiency we must do away with revolutionary chaos.  We must have a strong central government in place of local committees, and we must have a properly trained and fully militarized army under a unified command.'" 

And: "Philosophically, Communism and Anarchism are poles apart.  Practically - i.e., in the form of society aimed at - the difference is mainly one of emphasis, but it is quite irreconcilable.  The Communist's emphasis is always on centralism and efficiency, and Anarchist's on liberty and equality."

What Orwell is describing in passages such as these is the core struggle in all political systems.  Long before you get to left versus right, you have to decide: Who makes the decisions?  By what means are decisions reached?  In short, how concentrated is the government's power?

The Communists were for centralization, the Anarchists for diffusion.  In every society, at every time, those forces are in competition.  The names and ideologies change regularly, but not the centrifugal and centripetal forces.

In The Federalist 47, Madison famously wrote: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny."  The genius of his conception of the Constitution, and the reason he initially believed we didn't a bill of rights, was that it diffused power so widely. 

We had a federal structure, with dual political and judicial systems.  We had a President who didn't come from Congress, but members of the Senate who came from the state legislatures (until the Progressives, full of righteous certitude, monkeyed with that in 1913 with predictably disastrous results in the short term and a chamber full of millionaires in the long term).   We also had a first President who didn't covet power, a blessing it's too easy to take for granted from our perspective.

Most significantly, we didn't have a rigorous separation of powers.  That seems paradoxical, but Madison's  insight - his clarity - was to see that it wasn't.  "Parchment barriers" - the mere declaration of rights and responsibilities - could never restrain power, which is "of an encroaching nature."  (Think of the Declaration of the Rights of Man paving the way for Napoleon's military state, followed by long dreary years of Bourbon reaction.)  Rather, he realized, "[a]mbition must be made to counteract ambition."

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.

Instead of relying on government officials to do the right thing, to be actuated always by the right motives, his Constitution guaranteed a perennial push and pull.  And American political history - or, rather, the history of the executive and legislative branches, and of the states - is full of power being concentrated until it is lost, when the process of concentration begins around a different pole.

The judiciary is an exception to this flux.  It has been concentrating power at least since the days of Roger Taney, hands-down the most influential justice of the Supreme Court, who launched the "original intent" school of constitutional interpretation in his jurisprudential masterpiece.

The great scandal of the Ohio Supreme Court (see post 176) isn't that the big-money contributors get what they paid for - what'd you expect? - but that they're right to expect so much.  The justices can deliver decisions that cost businesses millions or hundreds of millions.  American judges can strike down entire election laws (see post 165) or persecute individuals on a whim (see post 108 and post 98).  Judges can raise taxes without representation, or choose the President, or decide what t-shirts a 13-year-old can wear to school (see post 164 and post 162).

The real scandal of the Ohio court, and every other court in the country, isn't that they receive (and, for many,  must scrounge for) so many millions, but that they're worth it.  They can confer such extraordinary benefits on those they favor.  And because the courts have exclusive authority to interpret the Constitution - because the Constitution means only what the courts say it means - by definition the courts can't do anything unconstitutional.  Our judges have long since charged right through that parchment barrier.