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09/22/2011

An Originalist Defense of Social Security
Michael Ramsey

With Rick Perry questioning the constitutionality of Social Security and Mitt Romney attacking him for it, Andy McCarthy at NRO challenges Romney to explain his own constitutional position in this insightful post: Questions for Governor Romney on the Constitutionality of Social Security.  McCarthy doesn’t say so directly, but his post implies substantial sympathy with Perry’s view on originalist grounds.  I can’t speak for Romney, but here’s what I’d say in his place: originalism (of the text-based sort, at least) firmly supports the constitutionality of Social Security.  (As an aside, so do precedent and judicial restraint, but the focus here will be originalism).  I’ll give a general overview of the argument and then try to answer McCarthy’s specific questions.

Congress’ power to enact Social Security arises from the first clause of Article I, Section 8 (what McCarthy calls the General Welfare Clause, or what I'll call the Spending Clause).  By that clause, Congress has power “To lay and collect Taxes . . . to . . . provide for . . . the general Welfare of the United States.”

Nothing in that phrasing purports to limit the purposes of the spending to the powers listed in the rest of Article I, Section 8 (or elsewhere in the Constitution).  It appears on its face to be a stand-alone power – a textual point made by Alexander Hamilton soon after ratification.  If the framers had wanted to limit the clause's scope to subsequently listed powers, they knew how to do it.  Article I, Section 1 describes Congress as having “all legislative Powers herein granted” and Article I, Section 8’s necessary-and-proper clause gives Congress power to make regulations “for carrying into Execution the foregoing powers…”  So when the drafters wanted to make limiting cross-references, they made them expressly.  Correspondingly, the Spending Clause could have said that Congress has power to collect taxes “to carry into execution the powers herein granted.”  The fact that the spending clause is not drafted this way is good evidence that this is not what was intended.

It’s true, as McCarthy points out, that after ratification Madison advanced a limited reading of the clause (contrary to Hamilton).  But Madison’s argument (unlike Hamilton’s) was not mostly based on text.  Indeed, it’s hard to see how it could be.  The only way textually to get to Madison’s position is to say that the historical meaning of “general Welfare” included only the items listed elsewhere in the Constitution.  But there’s no reason in ordinary language to limit it that way.  Quite a few things are in the “general Welfare” of the United States (that is, they would be widely beneficial) but aren’t part of Congress’ enumerated powers.  Laws prohibiting guns in schools and prohibiting violence against women are widely beneficial, but the Supreme Court (quite rightly, in my view) has said that these laws are beyond Congress’ enumerated powers.

Instead, Madison argued (as McCarthy paraphrases) that the Spending Clause “had to be understood as limited by the powers enumerated in Article I, Section 8” – that is, that structural imperatives require us to read into the text a limit that isn’t there.  I’m generally suspicious of these sorts of arguments, because they are an invitation to substitute one’s own views of the best constitutional structure for what the text actually says.  Usually it’s not the case that the proposed interpretation is essential, only that it would be a good idea.  And indeed here the supposed necessity seems weak.  The claim is that, unless the Spending Clause is limited to enumerated powers, the federal government would have (as McCarthy says) “overwhelming authority.” 

Surely that overstates.  The Spending Clause is only about spending, not about other powers – in particular, it’s not about regulation, which is covered in subsequent clauses.  That’s why I prefer “Spending Clause” to “General Welfare Clause”: it does not say that Congress can legislate for the general welfare.  And, prior to the Sixteenth Amendment Congress’ taxing powers were somewhat circumscribed, so there was a substantial limit on how much it could spend.

McCarthy goes on to say (paraphrasing Madison's argument) that a broad reading of the Spending Clause “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.”  It is no doubt true that we would have a weaker national government and a more decentralized federalist system under a limited view of the spending clause.  That does not mean, though, that this must have been what the founding generation chose.  We know what they chose principally from the text and from widely shared assumptions and understandings of the time.  But the choice of a relatively weaker versus a relatively stronger national government was contested at the time (note Hamilton and Madison’s disagreement).  There’s no reason to assume that the text must take Madison’s view in the face of a plain meaning that appears not to.  Madison, after all, was at that point not a disinterested observer – he was a politician with a decided point of view.

In sum, the Constitution’s text does not on its face tie Congress’ spending power to Congress’ subsequently enumerated powers, and the reasons offered for departing from the text are not compelling.  To be sure, there are sophisticated originalist scholars who disagree with this view, but that is likely because their version of originalism is less text-driven than mine.  Thus the originalist case for Social Security seems (sadly, perhaps, as I’m no great fan of that program or of substantively unlimited federal spending) quite well-founded.

*  *  *

At the end of his post, McCarthy poses a series of excellent questions for Romney to answer.  (I can see McCarthy would have a fine future as a law professor).  Here are my answers:

Do you think Social Security is constitutional? 

Yes, for the reasons stated above, and because that question was decided by the Supreme Court in Helvering v. Davis in 1937; even a very weak view of precedent would indicate adherence to a decision that has a plausible basis in the text, is deeply entrenched and has not been widely questioned for much of its history, and which has induced substantial reliance by many people and institutions.  Further, on a close question judicial restraint would suggest upholding the decision of the political branches.

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

Yes, for the reasons stated above.  The dominant strand of contemporary originalist theory emphasizes the central role of the text.  The Spending Clause's text does not link the power it grants to the powers granted elsewhere in the document.  Founding-era evidence is at best mixed (Madison had a limited view, but Hamilton did not).

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

Yes.  Although the question implies that Madison is in impeccable indicator of original meaning, his post-ratification views sometimes had flaws.  Often when he disagreed with Hamilton, Hamilton seemed on stronger ground – examples include Madison’s view in the Pacificus/Helvidius debates that the President could not issue a neutrality proclamation, and Madison’s view (rejected by Marshall in McCulloch v. Maryland) that Congress could not charter a national bank.  For whatever reason – perhaps it was Jefferson's influence – Madison began to adopt especially narrow views of federal power.  Another way to put it is that the Supreme Court’s view is consistent with Hamilton’s view, which should be comfort to originalists.

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?

I wouldn’t endorse all of the evolving Constitution language in Helvering v. Davis, but that language isn't necessary to the result.  The result can be reached on purely originalist grounds.

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?

Yes, if that could be accomplished through spending alone (I’m not sure it could be).  This is a distinct question from whether the recently enacted health care law is constitutional, because that law does not proceed via spending alone.

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

The power is to spend money to provide for the general welfare (not to do anything that promotes the general welfare).  And a practical limit is that Congress must get the money from somewhere.  (This was a more significant limit before the Sixteenth Amendment).