Is Social Security Constitutional?

Free Republic | 1-19-05

[Conservative Coulter Fan]

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?

[Racehorse]

Sorry,

Meant to include you in the address on #40

[hubbubhubbub]

SS is against common law and contract law. You can not bind someone (future generation) to a contract without their consent.

[Ken H]

Had you been among the living way back then, you would have found yourself with considerable good company in think it a reach.  But, there it is . . .

In your opinion, is the Constitution being interpreted correctly by using the general Welfare Clause to justify Social Security?

[PaxMacian]

"Social Security is here to stay forever. "

You are much more optimistic than most!
It is highly improbable that I will ever see a dime in return
for all the money stolen from me by the government
so they can redistribute it to millionaires like my boss.

[Racehorse]

In your opinion, is the Constitution being interpreted correctly by using the general Welfare Clause to justify Social Security?

No.  But, possibly not for the reasons you might suppose.

There is no question, except in two instances, Congress has the power to tax, and Congress has the power to use those revenues from taxation to provide for the general welfare.  However, seems to me, interpreting the Constitution this way makes the federal government a super authority, because it ignores the rights of the States ( several of which had passed some form of old age security program ), and regulates both the actions of the states and actions of the citizens of those states.

I guess my opinion comes down to whether I choose to believe James Madison or Alexander Hamilton. In this instance, though I support keeping and fixing Social Security, my personal sense (opinion) is this interpretation sets up the central government as the final authority as to what constitutes the general welfare.

Someone who supports the Hamiltonian view of things might well give you a different argument. 

[SolidSupplySide]

FDR did pack the Court. Either that, or the history books are wrong

This is interesting. I took history in Michigan. It is still in the high school curriculum to teach that FDR's plan to pack the court failed. Where did you learn history?

[SolidSupplySide]

Feel free to point to the Constitution and provide the specific part of it that makes Social Security constitutional.

Article I Section 8 -- the government is to provide for the general welfare. Helvering v Davis, US Supreme Court, 1937.

[Brilliant]

I took history in Michigan, too. Dearborn.

What it comes down to is what you mean by "pack". It is undeniable that after he appointed justices who supported his viewpoint, the Supreme Court wrote opinions upholding his New Deal legislation, and that it did this after the prior justices had written opinions declaring much of it unconstitutional. It's hard to deny that happened, because those opinions are in the books. In law school, we spent several weeks trying to reconcile them, and ultimately concluded that they simply could not be reconciled.

If you limit your definition of "pack" to increasing the number of justices, then he failed. But that does not adequately capture the events of history.

[cynicalman]

Unfortunately the swing vote on the SC, Owen J. Roberts, switched from deciding against FDR to deciding for him.

Thus the saying " a switch in time saved nine"

[Attillathehon]

SS is against common law and contract law. You can not bind someone (future generation) to a contract without their consent.

What kind of contract allows the government to take money out of your pocket for more than forty years and then, just as you are about to retire and collect the promised benefits, turn around and say, sorry, you have to work another year, or more before you can collect. Yet, that's what they did and the people or their representatives never challenged them.

[DMZFrank]

HELL NO!!! But judicial review has ceased to exist for any major act of Congress. At least 40-60% of Federal functions fall outside the scope of Art I, Sec. 8.

[Conservative Coulter Fan]

Perhaps you should have read the first paragraph, "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."

Blow the dust off your United States Constitution booklet, and go to Article I, Section 8. Our Founders enumerated 20 powers or areas for the Federal Government. All other areas "are reserved to the States respectively, or to the people" (Amendment 10).

Article 1, Section 8.

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

[Conservative Coulter Fan]

First, the court's philosophy began to change even as Congress debated the merits of judicial reform. Owen J. Roberts, the youngest jurist, began to vote Roosevelt's way in close decisions, giving FDR 5-4 wins rather than losses by the same margin. Then before long, the "Nine Old Men" began to retire of their own volition, enabling the president to appoint a "Roosevelt court."

[Conservative Coulter Fan]

You should have read my remarks before skipping to the comments. 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.

[Conservative Coulter Fan]

The answer is: ABSOLUTELY NOT!!!

In Federalist No. 41, Madison summarizes the relationship of the general preface language including the "welfare" language, to the subsequent more detailed enumeration of specific powers, as follows.

" Some who have denied the necessity of the power of taxation [to the Federal government] have grounded a very fierce attack against the Constitution, on the language on which it is defined. It has been urged and echoed that the power to "lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States" amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction." (emphasis added)

Thus, Madison, who like Story after him sought to defend federal power, treats with derision the claim of opponents of federal powers the claim that the "welfare clause" is a general grant of power. Madison continues Federalist No 41 in this language of angry paradox:

"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?" (emphasis added)

[Conservative Coulter Fan]

Earlier in Federalist No. 41, Madison grouped the powers granted the federal government into six "classes", which were: "1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of the harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5 Restraint of the states from certain injurious acts; 6. Provisions for giving due efficacy to all of these powers." Note that there is no listing of "general welfare" as one of these general classes.

Please feel free to provide the words of Hamilton that contradict Madison on the General Welfare Clause. Yes, we're told he advocated a strong centralized government, but such a viewpoint is one thing and the law (Constitution) is quite another. Hamilton authored most of the Federalist Papers and I'm not aware of him ever differing with Madison on the General Welfare Clause.

[Conservative Coulter Fan]

Federalist 41 clearly refutes such an erroneous notion that the General Welfare Clause was a blanket power or even a power for that matter. Madison clearly pointed out that it was a general summary of the 20 enumerated specifics.

[Conservative Coulter Fan]

Well, you should know that there glorious, all-powerful SCOTUS ruled in 1960 (Flemming v. Nestor) that the citizens have no property rights when it comes to payroll taxes collected by the Federal Government. Nestor sued claiming he had a right to collect benefits because he paid his Social Security "contributions." This is bolstered by the fact that they can cut benefits, raise the retirement age, raise taxes, and so on regardless.

[SolidSupplySide]

You have a misunderstanding of the law. Helvering v Davis is the law of the land, not Federalist 41.