RUTHFULLY YOURS

Reading Katrina’s post, I think it’s very interesting, and welcome, that Governor Romney is pressing Governor Perry to answer the question of Social Security’s constitutionality. I just hope that he’s also prepared to answer the question himself.

Governor Romney was very adamant during the 2008 primary campaign that he was committed to appointing originalist judges to the bench. It is a big part of what I like about him. I also think it is a great credit to him that Judge Robert Bork, a pioneer of originalism, is heading up Governor Romney’s justice advisory committee, just as he did in 2008. Unlike some critics, I was obviously convinced (as were a lot of us NR folk and Judge Bork) that Mitt was sincere in this commitment to originalism — not pandering to pro-lifers who were made skeptical by his prior inconsistency on abortion and Roe v. Wade.

So let’s talk Social Security. I won’t much belabor the sleight-of-hand involved in its creation — how, much like President Obama with Obamacare, FDR first told Americans that the program was not a tax but an insurance program, and then, once Congress passed it, told the courts it was not an insurance program but a tax. Let’s just focus on the Supreme Court’s upholding of the law in Helvering v. Davis (1937). It was controversial, and the decision was driven more by FDR’s threat to pack the Court than by any concern for originalism.

The government argued that Congress’s constitutional authority came from the power to “lay and collect Taxes . . . to . . . provide for . . . the general Welfare of the United States” — found in the preamble of Article I, Section 8. This called for an interpretation of the General Welfare Clause.

James Madison, the principal author of the Constitution, had contended that the clause was not a grant to Congress of an open-ended power to confiscate and spend public money for any purpose that Congress decided would further the general welfare. Such a construction would undermine the Constitution’s federalist system, in which the states maintained sovereign power, the central government’s powers were strictly limited, and the individual was protected from federal intrusions.

Instead, Madison said the General Welfare Clause had to be understood as limited by the powers enumerated in Article I, Section 8 — i.e., Congress could tax and spend for those purposes and no others. That construction was also consistent with the Constitution’s overall framework. Were we to adopt Madison’s interpretation, Social Security would be unconstitutional: There is no enumerated power in Article I, Section 8, authorizing Congress to set up a national insurance system; and the Constitution, in the Tenth Amendment, explicitly reserves to the states and the people the powers not delegated to the national government.

The competing interpretation of the General Welfare Clause, credited to Alexander Hamilton, regarded the clause as a stand-alone grant of overarching power to Congress to tax and spend for any purpose that Congress, in its wisdom, decided would be beneficial for the American people. Under this interpretation, the federal government has overwhelming authority — Congress is not limited to its enumerated powers and the Tenth Amendment is virtually toothless.

Cowed by FDR’s threat to pack the Court if it continued to block the New Deal, the Supremes adopted the Hamiltonian position in United States v. Butler (1936), and then reaffirmed it in Helvering, the Social Security case. But the fact that this is where the justices came out does not mean they were right — as Governor Romney implicitly acknowledges when he condemns activist courts and argues that Roe was wrongly decided. In fact, the Helvering Court claimed that the General Welfare Clause, and the Constitution in general, are organic. In a passage that would seem anathema to an originalist, the majority asserted, “Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the wellbeing of the Nation. What is critical or urgent changes with the times.” Sounds like The Living Constitution 101.

So here are some questions I hope Governor Romney is asked:

Do you think Social Security is constitutional?

Do you think Social Security is consistent with an originalist interpretation of the Constitution?

Do you think the Supreme Court of the New Deal era was correct to reject James Madison’s interpretation of the General Welfare Clause?

Do you agree with the Supreme Court’s assertion in the Helvering case that the meaning of the General Welfare Clause changes with the times?

If the General Welfare power gives Congress authority to set up a compulsory retirement insurance system, and a compulsory disability insurance system, would it not also give Congress the authority to set up a national healthcare system?

Are there any limits to what Congress may do under its power to provide for the general welfare?