March 4, 2024

What if Social Security Is Unconstitutional?

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It was a time much like the present.  There was a economic downfall, a President with high personal popularity, a Democratic Congress sympathetic to the President’s plans, and a Supreme Court split down the middle.  The ambitious President sought to deal with mitigating circumstances with dramatic solutions that would increase government involvement in everyday lives.

And what would happen next would change the course of the country for decades to come and still impact us today.

FDR and Court Stacking

President Roosevelt was enormously popular.  He was elected for four terms as President, and instrumented the New Deal.  However, he also has a black mark on his record for court stacking.

You see, the Supreme Court was evenly divided, with two swing votes that generally sided with the Strict Constructionists, then considered Conservatives.  At issue was the concept of whether the New Deal programs represented an unconstitutional usurping of state and local law by the federal government.

This wasn’t a new debate. 

The constitutional issue about the taxing power had deep roots running all the way back to the founders and to a dispute between Alexander Hamilton and James Madison. Although both Hamilton and Madison were Federalists who believed in a strong federal government, they disagreed over the interpretation of the Constitution’s permission for the government to levy taxes and spend money to "provide for the general welfare." Hamilton thought this meant that government could levy new taxes and undertake new spending if doing so improved the general welfare in a broad sense. Madison thought the federal government could only expend money for purposes specifically enumerated in the Constitution.

The Madisonian view, also shared by Thomas Jefferson, came in time to be known as the strict construction doctrine while the Hamiltonian view is called the doctrine of implied powers1

The conservative view was the prevalent one at the time of the New Deal, and at multiple provisions of the New Deal were being declared unconstitutional.

On May 27, 1935, in a crushing defeat for Roosevelt, it voided the National Industrial Recovery Act and the Frazier-Lemke Farm Bankruptcy Act. It struck down the Agricultural Adjustment Act on January 6, 1936, the Guffey Coal Act on May 18, and the Municipal Bankruptcy Act and a New York state law setting minimum wages for women on May 25. 2

So, President Roosevelt had a novel idea.  He decided that he would press Congress to pass a law that would allow him to add a justice to every federal court that had a member over 70 years of age—up to six members.  This would allow him the ability to pack the Supreme Court and get his legislation through.

The Supreme Court caved, and reversed course, basically accepting the Administration’s logic on Social Security, minimum wage in Washington, and other appropriations bills.  What’s even more strange is how the SSA ruling was passed, in that it had justices on the court that voted against it, but there were no writings or opinions offered by the opposing justices.

How This Impacts Today

This court that feared for its viability and respect (in that it would have lost power and the respect that it was unbiased had it been packed) allowed for the massive growth in government that we see today.  Had they not been afraid of what President Roosevelt was going to do (he had the votes for his court stacking plan), Minimum Wage acts as well as the Social Security Act would not have been accepted into law—at least not at that time.

On top of those rulings, as a framework, the Federal Government has usurped more power and control to itself, and it continues to this day.  Medicare, Medicaid, and now the current Health Care bill are all based on the idea that the Federal Government can do these things—things that should be left up to the states—but the door was opened by SSA.

If SSA were to be proven unconstitutional, which I believe that it is, the government would be forced to shrink, to give back its power, and we would have a more free society.

While it stands, government will continue to grow and always claim that it’s supporting the general welfare.

These are first principles—things you have to get right otherwise they provide a lousy foundation.  I’m sure these justices, while worried about their respect (and rightfully so) didn’t think that America would ever find herself where she is today because of their ruling.  And that should be a sobering thought to anyone who seeks to be a justice in this nation!

Can America go back?  Certainly.  Will it?  That has yet to be seen, but it won’t unless we change what our people know about what their government is supposed to be and change what they expect from it.

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  1. Social Security Online []
  2. Is Social Security Constitutional? by John Attarian []

8 thoughts on “What if Social Security Is Unconstitutional?

  1. Sure, let’s let all our older citizens die in poverty. How stupid of them to pay taxes all their lives to Social Security and expect something in return? Who cares if lots of people go hungry, homeless and die as long as the Constitution can be used as an excuse to deny them the their life, liberty and pursuit of happiness? That general welfare thing just gets out of hand when we need all that money to support our war machine and bail out Wall Street.

    1. First, I never argued that Social Security should end tomorrow. Creating straw man arguments may be fun, but it’s not a proper reflection of the discussion.

      And don’t tell me that you actually believe that the taxes that Seniors paid over their whole lives were invested or saved to be returned to them when they got old… That money’s long gone.

      Are you making the argument that before Social Security there were more hungry, homeless and dying because it wasn’t in existence? How about those that go hungry, homeless and die in socialist countries?

      If you have a good argument for why the SSA is Constitutional, or proof why it’s better to take money from the young and give it to the old I’m waiting to hear it– especially as the system heads for bankruptcy.

  2. The money paid in Social Security taxes is, by law, required to be placed in a trust fund to pay future retirees. The government has played some accounting tricks with the money but that doesn’t remove their fiduciary obligation. Yes, there were old people dying in utter poverty before Social Security was enacted, that’s why they enacted it.

    The Social Security system is far from bankrupt. They can pay out their full benefits to all retirees for at least another 30 years with no change to the system and after that point they will still be able to pay out partial payments until we baby boomers die off and they return to solvency. All we have to do to insure that Social Security will not ever run short of money is to simply require everyone to pay the same rate of payroll tax regardless of income. Remove the salary cap and everything will be fine. Admittedly, I would pay a bit more in tax that way, but it certainly wouldn’t hurt me and it will help many people who need it.

    1. Actually, until recently the system was pay as you go, and a majority of it still is. A small portion of it is put into a Trust Fund, but that was only after the Greenspan Commission stated that without some kind of savings component the system would go insolvent. In fact, the U.S. Supreme Court had a serious problem with the idea (when SSA was heard before them) of the idea of a national insurance program, and had to hear from the administration that funds were not being provided for insurance, but that funds were coming out of the general fund for a benefit.

      There may have been old people dying, but considering the time frame– the Great Depression– there were others as well.

      I would prefer to take that tax money and invest it in a higher yield than the SSA fund allows– and it would put things in public control (whose money it is in the first place) than have the government have it to use/manage/abuse.

  3. Congress’s Power to spend, from YOUR Constitution – Article I Section 8.
    “to pay the Debts and provide for the common Defense and general Welfare of the United States”
    And no, welfare here is not section 8 or food stamps, but the basic government activities specifically enumerated in the Constitution

    Your definition of welfare is Animal Farm BS.
    Definition of welfare
    Mr. Webster
    WELFARE, n. [well and fare, a good faring; G.]

    1. Exemption from misfortune, sickness, calamity or evil; the enjoyment of health and the common blessings of life; prosperity; happiness; applied to PERSONS.

    2. Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government; applied to STATES.

    Congress has the power to spend for the “general Welfare of the United STATES”

    general Welfare of the United states PEOPLE


    Not only is it clear in the Constitution, our founding father wrote plenty on government’s role with charity

    “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.” – Thomas Jefferson

    “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” – James Madison FATHER of the CONSTITUTION

    “Charity is no part of the legislative duty of the government.” – James Madison, ONCE AGAIN FATHER of the CONSTITUTION

    “The Constitution only gives people the right to pursue happiness. You have to catch it yourself.” – Benjamin Franklin

    “No one believes more firmly than Comrade Napoleon that all animals are equal. He would be only too happy to let you make your decisions for yourselves. But sometimes you might make the wrong decisions, comrades, and then where should we be?”
    – George Orwell, Animal Farm

  4. A small part of it is put into a trust fund, but that was only after the Greenspan Commission said that without some kind of savings component of the system would be insolvent. May pay benefits to all retirees, at least another 30 years without any change in the system and after that point will still be able to pay partial payments until the baby boomers die and return to solvency.

    1. What do you say is evident in our Constitution? If Government Charity was in the Constitution, why didn’t we have SS and Medicare/Medicaid until close to 150 years later?

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