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?

[An.American.Expatriate]

Just my 2 cents on this . . .

regardless of the "intent" of the founders and the arguments used in the Fed papers, I find that this clause suffers from the same problems that the 2nd Amendment suffers from - namely - selective reading.

"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;"

What seems to be missing from the debate here is:

Who was the intended beneficiary of Congresses actions?

In my *selective reading* :-)) that would be "the United States" - not the several States, not the people, but "the United States".

Read thusly, Congress was empowered to:
a) raise money,
b) pay debts,
c) "provide" for a common defense (allocate money), and
d) a general welfare (the common good)
of the United States (as a national entity)

What exactly is "General Welfare"??

IMHO - the following are the matters the states chose to allow the federal government to have regarding the common good of all the 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;

As I said - my 2 cents and a lot of people would disagree with me - just food for thought . . .

[tacticalogic]

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

The question is not wheather SS is "the law of the land", but wheather it is constitutional. If the two were synoymous, there would never be a case of a law being found unconstitutional.

[Conservative Coulter Fan]

The Federalist Papers were written by Hamilton, Madison, and Jay to support ratification of the Constitution. James Madison, as a framer of the Constitution, refuted critics of the Constitution with regard to the General Welfare Clause, which he clearly explained was a general summary of the specifics enumerated and there were twenty of them and no more. Now, how are you going to rely upon what Madison called “stooping to a misconstruction,” as did the court in 1937, and pretend the Federal Government in effect has a blanket power to “promote the general welfare?” Can we call the 37 ruling – legislating from the bench – failure to interpret the Constitution. It certainly didn’t abide by Scalia’s “original intent.” The Constitution is the law of the land!

[tacticalogic]

Who was the intended beneficiary of Congresses actions?

In my *selective reading* :-)) that would be "the United States" - not the several States, not the people, but "the United States".

James Madison to Joseph C. Cabell

13 Feb. 1829

Letters 4:14--15

For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

The Founders' Constitution

[SolidSupplySide]

You are obviously engaging in some sort of mental masturbation. I hope it feels good to you.

The Constitution is the law of the land. In 1937, Social Security was determined to be Constitutional. Enough said. Social Security is legal.

[An.American.Expatriate]

I'm not sure whether you are siding with my argument or against it with that quote! (or even it it truely applies to my argument!!!)

On second reading, I think I see what you are getting at - this quote would seem to indicate that the "commerce clause" was intended to be "preventative" and was not intended to benefit the Federal Government.

However, that is not really my argument. "General Welfare of the United States" is not the same as benefiting the Federal Government, rather, the good of the nation itself.

In that context, the statement of Madison actually SUPPORTS me - by preventing importing states from taxing the non-importing ones, the common good of the nation as a while is served as all states remain "equal".

[Ken H]

The Constitution is the law of the land. In 1937, Social Security was determined to be Constitutional. Enough said. Social Security is legal.

Would you also say the following on a thread about abortion?

"The Constitution is the law of the land. In 1973, the right to have an abortion was determined to be Constitutional. Enough said. Abortion is legal."

[verity]

Regardless, you are not the adjudicator of that which is Consitutional and that which is not.

Hope your ego is not bruised.

[SolidSupplySide]

"The Constitution is the law of the land. In 1973, the right to have an abortion was determined to be Constitutional. Enough said. Abortion is legal."

Absolutely. Abortion is legal. To deny that seems very strange to me.

[Ken H]

In your opinion, did the Supreme Court interpret the Constitution correctly?

[SolidSupplySide]

I am firmly rooted in reality. I know that the Supreme Court ruled that abortion was a Constitutional right in 1973. I acknowledge that abortion is legal today. My opinions did not determine this and are legally irrelevant.

I am a conservative. If I were a judge, I would not be an activist. I would show deference to precedent. I would follow the law as determined in 1973.

[tacticalogic]

However, that is not really my argument. "General Welfare of the United States" is not the same as benefiting the Federal Government, rather, the good of the nation itself.

In that context, the statement of Madison actually SUPPORTS me - by preventing importing states from taxing the non-importing ones, the common good of the nation as a while is served as all states remain "equal".

In that context, you are probably correct. The question is wheather the "General Welfare" clause is a grant of power, in an of itself, or a stipulation that the application that the enumarated powers must be applied with an even hand with regards to their effect on the states (placing the emphasis the word "general" in the phrase "general welfare").

[tacticalogic]

I am a conservative. If I were a judge, I would not be an activist. I would show deference to precedent. I would follow the law as determined in 1973.

How far back would you go to determine "precedent"? We have 150 years of "precedent" that says the New Deal is beyond Congressional authority under the Commerce Clause, and about 70 year's worth that says it isn't. Which is the more authoritative "precedent", and why?

[Ken H]

I am a conservative. If I were a judge, I would not be an activist. I would show deference to precedent. I would follow the law as determined in 1973.

Not sure I get your point. Does that mean you would not overturn Roe v Wade if you sat on the USSC and had the opportunity, or do you mean that the USSC was in error in Roe v Wade?

[SolidSupplySide]

I would not change the law if I sat on the Supreme Court. Judges should not change the law. A Constitutional Admendment is the proper way to change the law, not judicial fiat.

[Ken H]

A Constitutional Admendment is the proper way to change the law, not judicial fiat.

There are three proper ways to change a federal law that come to mind right now. Congress can rescind it, a constitutional amendment can be ratified, or a federal court can void the law.

But you're dodging the question, which is asking if you think the USSC interpreted the Constitution correctly in the first place.

[SolidSupplySide]

But you're dodging the question, which is asking if you think the USSC interpreted the Constitution correctly in the first place.

As an original matter, my opinion is irrelevant. This thread asked if Social Security is Constitutional. Of course it is. Any discussion of the original matter is an exercise in mental masturbation. The law has been interpreted and those of us who do not like an activist judiciary should accept the law.

[rolling_stone]

1937 Supreme Court "Decision"

http://www.ssa.gov/history/court.html

[Protagoras]

Ping for an education.

[Ken H]

As an original matter, my opinion is irrelevant. This thread asked if Social Security is Constitutional. Of course it is. Any discussion of the original matter is an exercise in mental masturbation. The law has been interpreted and those of us who do not like an activist judiciary should accept the law.

Is Free Republic an exercise in mental masturbation?

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