One Easy Fix To Protect Social Security From Originalist Judges

Is Social Security at risk of being found unconstitutional now that Amy Coney Barrett has been confirmed to the US Supreme Court and justices who identify as “originalists” predominate on the court?

Not really. As much as opponents of her confirmation tried to suggest it was a threat because Barrett herself mentioned the program as something that’s “arguably” unconstitutional in a scholarly article, she did so with a broader argument that said, “this is an irrelevant hypothetical” (see my September article on the topic).

It is true, however, that there are writers — bloggers and scholars alike — who have raised the issue. For example, in 2010, the Tenth Amendment Center republished a 2005 blog post by Bob Greenslade, blogger at The Price of Liberty. He recounts the original decision by the Supreme Court in 1937, Helvering v. Davis, to uphold the law as permissible because of Congress’s constitutional power to “lay and collect Taxes . . . [to] provide for the common Defense and general Welfare of the United States.” Greenslade argues:

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“Under the Helvering v. Davis decision, the Court basically declared that Congress has the subjective authority, unrestrained by the judiciary, to declare what constitutes the general welfare irrespective of whether that determination corresponds to the specific legislative grants of power contained in the Constitution. Not only was this contrary to the principles of limited government and enumerated powers, which are the foundation of the Constitution, but it was also contrary to the constitutional meaning of the general welfare phrase.” While it appears to Americans in the year 2020 that it is exactly this sort of program that constitutes “general welfare,” Greenslade argues that the founders had something entirely different in mind: the well-being of the states which constituted the United States. He cites Federalist no. 45 for further evidence that the founders did not intend for “general welfare” to mean “social welfare programs” which they perceived of as managed by the individual states:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part; be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.”

Separately, Mike Rappaport, Director of the Center for the Study of Constitutional Originalism, wrote in 2015,

“The constitutional provision states that ‘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.’ In my view, this Clause merely confers on Congress the power to tax. The money is then to be used to further the other enumerated powers, which are briefly characterized as ‘for the common defense and general welfare.’ If this reading, which was held by James Madison is correct, Social Security and Medicare would be unconstitutional.”

Is he right? Did the Supreme Court make a mistake in allowing Social Security legislation to stand? And, more importantly, are these writers just two of many arguing for a narrowed understanding of the phrase “general welfare”, or are they the odd ones out with an opinion so far in the minority as to be irrelevant?

My sense of Barrett’s position is that, regardless of whether the original 1937 case was decided correctly, there is a real distinction between cases having to do with whether Congress (or the Executive Branch) has overstepped its defined powers, which might be discussed in academic journals but are water under the bridge in any practical sense, and cases where there is a real failure of justice.

But nonetheless, there is an easy fix: an amendment that specifically grants Congress the power to implement any sort of tax it wishes, to fund any form of social insurance or social assistance program it wishes. As a bonus, such an amendment could enable Congress to regulate intrastate commerce, that is, commerce generally speaking without having to rationalize its connection to interstate commerce, so long as there is a real purpose to have common structures across the 50 states.

Now, it may seem absurd to call this an “easy fix” — after all, it requires not merely a majority but a supermajority — two-thirds — of both the House and Senate, as well as ratification by three-fourths of all states. But would 1/3 of Congress really object to an amendment the objective of which is merely to ensure that programs as popular as Social Security and Medicare conform to the Constitution regardless of the interpretation?

What’s more, as Americans, we value honesty. An amendment that explicitly authorizes the federal government to enact social insurance programs, rather than our current approach that’s more a matter of finding a justification by choosing a preferred interpretation of the text, would be far more in keeping with our national values.

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