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09/26/2011

More on Originalism and Social Security
Michael Ramsey

Reader Peter Zavodnyik writes to dispute my originalist defense of Social Security:

[I]t seems to me that there is little if any evidence that the broad (Hamiltonian) view of the general welfare clause was disseminated widely at the time of ratification (it was mentioned mostly in private correspondence).  The states ratified the Constitution on the understanding that the powers of the federal government were limited to the powers listed in Article I, Section 8 and I've seen no evidence indicating they viewed the general welfare clause as a substantive power.  I note that Madison offered a narrow view of the clause DURING ratification in one of the articles in The Federalist.
 
As David Currie demonstrated, the broad view of the general welfare clause was dismissed in Congress almost as soon as Hamilton offered it in his Report on Manufactures and it was viewed dismissively in Congress throughout the antebellum period.  Even William Seward and Henry Clay thought it ridiculous.  Until the end of the nineteenth century, Congress relied on land sale revenues when providing grants to the states (on the theory that land sale revenues were not subject to the limits of Article I, Section 8).  As late as the 1920's, when Congress enacted a law providing for the purchase of crops in a futile attempt to increase crop prices (and farm income), the statute itself cited the commerce power.  While there were a handful of appropriations from the 1870's to the 1920's appropriating general revenues (and not land sale receipts) to aid victims of crop failures or floods, the constitutionality of these measures received little of any discussion in Congress, in part because they were so small. 
 
I suppose time itself had rendered the question of Social Security's constitutionality moot, but the fact remains that from an originalist perspective, that law does not come anywhere near falling within the confines of the Constitution for the simple reason that the federal government was not understood as having a broad spending power by the states when they consented to its formation.

That's very well put.   I still stick with what seems to me to be the plain meaning of the text, but as I said in the initial post it may end up turning on how one weighs text against other evidence.

By the way, Zavodnyik knows what he's talking about: he's the author of The Age of Strict Construction: A History of the Growth of Federal Power, 1789-1861 (Catholic University of America Press, 2007), and The Rise of the Federal Colossus: The Growth of Federal Power from Lincoln to F.D.R. (ABC-CLIO/Praeger Books, 2011).

Damon Root at Reason.com liked my argument enough to link to it (thanks!), but he sounds a bit skeptical.

I don't think Mike Rappaport agrees with me either.