Is Social Security Constitutional?

Article One, Section Eight of the United States Constitution limits the Federal Government to twenty Enumerated Powers or “areas.” None of these powers include the Federal Government taking responsibility for the retirement of citizens, getting into the business of retirement, especially by taking money from Americans against their will and forcing them into a government run system that operates like an illegal pyramid scheme.

Some defenders of Social Security contend that the General Welfare Clause in Article One, Section Eight of the Constitution, “…to promote the general welfare,” is in fact clear evidence of the constitutionality of Social Security. While this view is widespread, to say the least, James Madison in Federalist Papers Forty-One & Forty-Two clearly rebuffed such a contention explaining the General Welfare Clause was just a summary of the twenty Enumerated Powers rather than a blanket power as critics of the Constitution, at the time, had argued.

Its worth noting that defenders of Social Security are basing the constitutionality of the largest program in existence on what Madison called a “misconstruction” used by critics who attacked the Constitution. Madison explained, “For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or more common than first to use a general phrase, and then to explain and qualify by an enumeration of the particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity ... what would have been thought of that assembly, if, attaching themselves to these general expressions and disregarding the specifications which limit their import, they had exercised an unlimited power of providing for the general welfare?”

So if Social Security is unconstitutional, hence illegal, why shouldn’t the debate over “reform” center on this grave matter? Shouldn’t it be abolished if indeed the Federal Government has no legal authority to operate such a program?

If you actually want to respond to my questions then list and answer each of them individually.

I did that.

No, you haven't.

Address and answer the questions with a direct answer.

I did that.

No, you haven't.

That does not mean you get to play fantasy politics by answering that social Security is unconstitutional or that it is socialism.

I never addressed the unconstitutionality of it. It surely is socialism. Not to mention, that when you advocate that the government buy stocks, it is the actual precise definition of socialism.

You pinged me to the thread on the Constitutionality of Social Security. If that isn't what you believe why bother?

Even if it socialism, it doesn't mean that the government can't theoretically create an independent group to invest the monies currently on hand. The group could easily be limited by law to owning such a small percentage of each corporation that they wouldn't have a controlling interest or even an influential interest. The Federal Reserve would make a good model for theoretical discussion purposes.

Theoretically this hypothetical group would improve the governments return on investment and reduce our tax load. This is very similar in concept to the proposed Social Security changes.

Under the proposed SS change the Federal Government would be the authority that approved the investment structure so the only difference is who assumes the risk, the government or the individuals.

So I reiterate my question if it is not a good idea for the government to invest it's cash holdings in such a manner why is a good idea for the individuals to do so under the government's directions.

Either one of these are very bad ideas but I won't tell you why until you actually attempt to answer. When you finally do we will be getting somewhere.

So what you really want is to ask questions, but then say that they cannot be answered with the correct answer, and mark that down as unresponsive.

No, I want you to actually answer the questions instead of answering them with generalities. Answers similar to "Four Legs Good, Two Legs Bad" are not an answer, they are just an attempt to redirect the discussion and influence the sheeples. That is exactly what you are doing when you state that Social Security is Socialism. Even if it is socialism your statement has no impact on todays political world, as such it is a Null Value for our discussion purposes.

That is truly playing with yourself.

No, it just means I won't allow you to misdirect the discussion.

How old are you to play these childish games in a fantasy world where you ask all the questions but reject all the answers and keep asking the same dumb question? Are you in high school yet?

LOL! I turned 54 this month.

Graduated from High School at 16 had my BSEE at 18 and my MS at 20. My career has included over 20 years as an Engineer with the National Labs and another 10 as a consultant and business owner specializing in high speed networks and Automation Systems.

Our communications are almost certainly passing through some of the equipment I have designed and the electricity running your computer was probably generated, monitored, and metered by my companies products and systems.

Changing Social Security would effect the lives of a great number of people,

NOT Changing Social Security would effect the lives of a great number of people,

There is a case to be made for Social Security keeping the Communist Party from coming to power in the U.S. During the Depression Era the Communist Party was growing in strength in the U.S. because the populace was losing hope. After Social Security was implemented the CP's influence became insignificant.

That's one reason I am so adamantly against privatizing SS. If it is privatized, the next time we have a severe Stock Market down cycle a large portion of the voters will vote for the first party to guarantee them a check in the mail.

When the gap begins to widen between the rich and the poor someone will take advantage of the situation. If SS is privatized the next Stock Market down cycle could be a catalyst for severe mischief.

See how easy it is, when you actually address a question instead of attempting to redirect the discussion you get a discussion.

If you want to play in a fantasy world then I highly recommend a game called Civilization III.

Is that the game you play with your friends after school? Did you do your homework yet? You are the one playing with yourself. They really should keep keep children off this adult forum.

As for Civilization III, my team studied the game as a model for games theory purposes and as a tool for encouraging out-of-the-box thinking. We were researching designs for self-healing networks and automation system applications. It didn't pan out for those purposes but it was an interesting game.

It's your turn if your up to it.

WHY does it have to be done NOW?

Problems should be fixed as soon as they can be. No government since it's inception has been able to make meaningful beneficial changes which address the real problem until now. You propose doing it after your dead, what a wonderful way to avoid it.

No change at all merely pushes the solution down the road a year or two.

So next year is OK? Or the year after? Tell me why it would be better then.

so the issue can be debated.

The debate is starting now. When do you propose starting it? Oh yes, I remember, after you are dead. No thanks.

Please explain why this plan is the only and best plan.

Which plan? No plan has been settled on, or even formally proposed. You haven't read any of the proposals, despite what you say.

Please tell me why I should trust YOU to decide what happens with my money any more than I trust the government.

I never suggested you trust me or the government, in fact, I advise against it.

I advise you to find out what the proposals are, research them extensively, consider alternatives, make your own suggestions and debate them all. You can start right here on FreeRepublic.

Hope is not a plan. Denial is not a course of action.

You propose doing it after your dead.

This is an assumption on your part. I never said that. So next year is OK? Or the year after? Tell me why it would be better then.

Because it gives us sufficient time to think things through with no rush.

My primary objection to what has been proposed is that it merely shifts money around. It costs $2 Trillion to implement. Have you considered that the problem with the current system is that it can't handle the TEMPORARY bulge of baby boomers. SS currently costs $500 Billion a year for the ENTIRE PROGRAM. $2 Trillion would pay for the ENTIRE SS system for 4 YEARS! Is something that costs that much really the best solution? In addition, the private accounts in the proposed plan would themselves cost administrative and other fees which nothing I've seen thus far would limit - I'm not sure this is in my best interests. It also presents a possible disruption of the markets as money flows from the government (or from us, however you prefer to view it) into the private sector, much of it into the stock market.

Are you tired of the economic problems caused by the .com bubble yet? Want to create a new one? Have you considered how the inflow and outflow of retirement money in the stock market might impact the economy? We're already seeing this today, without ANY SS money in the market, and with the mass of baby boomers not yet retired. To say that giving business a chunk of money via stock valuation will automatically improve the economy is preposterous - anyone who looks at inventory backlog in an economic downturn realizes this. Not to mention Enron - remember them?

I prefer to think these things through in detail. I WILL NOT sign on to any plan NOW just because someone tells me to, including the President. Nor will I give the government the power to ram this through without much closer inspection.

You have some fundamental problems in your scenario.

You take liberal newspaper numbers and accept them as correct. Amazing considering that you trust no one.

You talked about having 40 yrs before we had to address this, so I didn't assume anything. Then you say you would settle for a few more years. The initiative should be soon or it will be lost. A lame duck President and maybe a Democrat in office next time, it could be never.

And many if not most of what I said they will do will be enacted. With or without you on board.

I'm sorry that you are afraid that people investing in the market will lead to bad things happening, it shows a fundamental misunderstand of markets. Not to mention the current proposal being bashed around will be capped out at $1000 bucks per young investor per year. That won't be causing any "irrational exuberance".

I prefer to think these things through in detail.

I merely suggest you, and the rest of the citizens begin now rather than some magical time down the line.

Some of us have been working on it seriously for 20 plus years. Way ahead of the curve.

I say again, Changes will happen with or without you, you can possibly make a difference now, later you will be irrelevant. It will already have happened.

The only question is whether you will get the Dems version, where the government gets to keep your money, or the freedom version, where you own your own assets and can pass them along to your heirs.

Have fun watching from the sidelines.

[ . . . ]

That sounds very much like what Hamilton wrote. I've seen posters use that quote as evidence that Marshall was in favor of an expansive view of the Comerce Clause. However, look at what Marshall went on to write:

[ . . . ]

Looking at the last two paragraphs, Gibbons placed clear and specific limits on the power of Congress to regulate commerce among the several States.

Marshall outlined further limits to this power in 1829 in The Blackbird Creek Marsh Company decision

Thanks for the extra example. It helps. A lot. I know what got me into trouble. I will get into trouble with it again. But, next time I'll hopefully do a better job of letting you know why I'm doing it.

As part of that trouble, I need to correct myself concerning what Hamilton might whisper into the ear of someone wishing to make a constitutional claim for Social Security.. It would not be "Article I, Section 8, Clause 1." He would add one other clause. He would whisper: "Article 1, Section 8, Clause 1 . . . Article 1, Section 8, Clause 18." Why that didn't occur to me earlier, I can't say. I was in too much of a hurry, I suppose. I'm rather surprised someone did not jump on what I consider to be a rather serious mistake on my part. Perhaps they thought my whispering Hamilton was outrageous enough all by itself. :-)

I agree with part of your objection in #104: If you use your expansive view of the gW Clause, then Congress can deem just about anything a matter of national concern.

That was precisely the objection Madison and Jefferson made when they opposed Hamilton.

Though true, except for a brief comment, this I want to put into brackets for awhile: "You agreed that Hamilton was naming restrictions, yet you interpret his words to mean that he would accept a universal federal pension plan as within the limitations of the Constitution. . . . That is not what Hamilton was saying."

This may be a distinction without a difference, but what I'll probably repeat again, hopefully better expressed and within a common frame of reference, is had Hamilton served as Secretary of Labor instead of Francis Perkins, and had Roosevelt sought his advice about the constitutionality of the Social Security Act, I believe he would have provided the justification. It is always dangerous (foolish?) to put words in the mouth of a long dead historical figure, but if I can come even close to pulling it off, I think the exercise will provide a better basis upon which to say Social Security is Constitutional or not, because it does not rely on subsequent Supreme Court decisions. I have not read more than a tiny portion of the FreeRepublic threads on the issue, but I tend to think this approach has not been tried.

The perfect vehicle, in my opinion, is the First National Bank of the United States. George Washington sought the advice of Thomas Jefferson (Secretary of State), Edmund Randolph (Attorney General), and Alexander Hamilton. On precisely the grounds we're discussing, Jefferson and Randolph, as did Madison, opposed the bill. Hamilton supported it. Washington agreed with Hamilton.

This was after the 10th Amendment was passed and before the Supreme Court, packed with Federalist judges appointed by Washington, did much more than meet for lunch. All the major players were prominent founding fathers. They were therefore all intimately familiar with the Constitution. My first readings of Jefferson, Madison and Hamilton seem to indicate all the constitutional issues (not meaning pensions or unemployment insurance, or anything of the sort.) concerning Social Security were present in their opposition to or advocacy for the creation of the bank.

The role of the Supreme Court comes later . . . I think.

Best of all, thanks to the Constitutional Society and to the Yale Law School's Avalon Project, we can read Hamilton's, Madison's and Jefferson's unedited views on the subject via their websites. I have thus far been unable to find anything online written by Edmund Randolph. Here are the links, if you are interested in the discussion and you wish to take a look.

Madison's Speech in Congress Opposing the National Bank

Jefferson's Opinion on the Constitutionality of a National Bank

Hamilton's Opinion on the Constitutionality of a National Bank

Not putting words into Hamilton's mouth this time, I thought I might confirm and acknowledge your objections above by posting a fuller but not complete comment from Hamilton. More from him and the other founding pops tomorrow . . . I hope.

It is conceded that implied powers are to be considered as delegated equally with express ones. Then it follows, that as a power of erecting a corporation may as well be implied as any other thing, it may as well be employed as an instrument or mean of carrying into execution any of the specified powers, as any other instrument or mean whatever. The only question must be in this, as in every other case, whether the mean to be employed or in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus a corporation may not be erected by Congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city. But one may be erected in relation to the collection of taxes, or to the trade with foreign countries, or to the trade between the States, or with the Indian tribes; because it is the province of the federal government to regulate those objects, and because it is incident to a general sovereign or legislative power to regulate a thing, to employ all the means which relate to its regulation to the best and greatest advantage.

[ . . . ]

But the doctrine which is contended for is not chargeable with the consequences imputed to it. It does not affirm that the national government is sovereign in all respects, but that it is sovereign to a certain extent; that is, to the extent of the objects of its specified powers.

It leaves, therefore, a criterion of what is constitutional, and of what is not so. This criterion is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority. There is also this further criterion, which may materially assist the decision: Does the proposed measure abridge a pre-existing right of any State or of any individual ? If it does not, there is a strong presumption in favor of its constitutionality, and slighter relations to any declared object of the Constitution may be permitted to turn the scale.

"Article 1, Section 8, Clause 1 . . . Article 1, Section 8, Clause 18."

There is a restriction in that Clause as well that we can't overlook: "To make all Laws which shall be necessary and proper..."

Hamilton said nothing about I.8.18 allowing Congress to act outside its constitutional limitations.

As I understand Hamilton, the Bank was to be used for carrying out powers delegated to Congress by the Constitution. Hamilton did not say that an implied power could be used for purposes outside of the enumerated power itself.

Hamilton:

It is conceded that implied powers are to be considered as delegated equally with express ones. Then it follows, that as a power of erecting a corporation may as well be implied as any other thing, it may as well be employed as an instrument or mean of carrying into execution any of the specified powers, as any other instrument or mean whatever. The only question must be in this, as in every other case, whether the mean to be employed or in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus a corporation may not be erected by Congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city. But one may be erected in relation to the collection of taxes, or to the trade with foreign countries, or to the trade between the States, or with the Indian tribes; because it is the province of the federal government to regulate those objects, and because it is incident to a general sovereign or legislative power to regulate a thing, to employ all the means which relate to its regulation to the best and greatest advantage.

Would you agree that Hamilton intended for an implied power to be used only as a means to carry out a power enumerated in Article I?

The Clause says "general Welfare of the United States". Do you know of any source which interprets the "United States" as meaning "the people of the United States"?

If not, then I see no basis for saying Hamilton or any of the other Founders would support a universal federal retirement plan paid for by working citizens.

Would you agree that Hamilton intended for an implied power to be used only as a means to carry out a power enumerated in Article I?

Are there any examples of Hamilton or other Founders interpreting the "United States" as meaning "the people of the United States" in I.8.1?

The usual good questions and challenges. But, I'm not going to answer, just yet. For one thing, I don't have the resources to gather the information. I would think some sort of bibliographic sourcing would be required. For another, I'm not sure we would agree on who belongs in the group known as the "Founders."

To my thinking, the Framers were ". . . the Founding Fathers who were delegates to the Constitutional Convention . . ." Brief biographical sketches can be found at America's Founding Fathers: Delegates to the Constitutional Convention. But Thomas Jefferson and John Adams did not attend, but I would count them as Founding Fathers. I would also count the anti-federalists Richard Henry Lee and Patrick Henry as founders. I would count the debaters in the State legislatures, newspaper editors, and even pamphleteers. But, I think what you, and I, would like to see are the words and thoughts of people who we know had influence which shaped how others acted when they acted in accordance with the Constitution.

For now, I'm trying to parse through the National Bank issue. That's enough. You're quite attentive to language, and Hamilton, Jefferson and Madison are not all that easily parsed. Who knows, once I get done with my personal compare and contrast, I might give up on the whole idea. If I don't give up, I'll take a run at these good questions.

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