I heard bits and pieces of an NPR story this morning about the founding Social Security but was left more confused then I started. Back then FDR and gange seemed to see the Constitution as a major obstacle to Social Security and other similar programs like Medicare. Why? If the government can tax our income anyways, what in the Constitution stops them from using that income to form any program they want?
There were a number of constitutional challenges to Social Security: that the tax on employers wasn’t a valid excise tax because it lacked uniformity, that it violated the Fifth Amendment by arbitrarily imposing taxes, and so on. The chief argument, however, was that it violated the Tenth Amendment stricture that powers not specifically granted to the federal government are reserved for the States or the people, and nothing in the Constitution specifially enumerates the federal government power to run a social insurance system. This article explains the arguments and the Supreme Court decisions on the constitutionality of Social Security very well.
Because there is nothing in the Constitution that gives the federal government authority to spend money on whatever it wants. The Constitution grants stricly enumerated powers to the federal government and leaves everything else to the states. Therefore, if the Constitution doesn’t authorize the government to do it, it can’t do it.
At least, that’s the way I read it. I know that others (including the Supreme Court) differ.
It depends on the construction you put on the Constitutional provisions. The conservative majority on the pre-1937 Supreme Court tended to feel that the majority of the economic “tinkering” that constituted the New Deal were unconstitutional extensions of Federal government power, despite the fact that the majority of Americans wanted them put in place and saw them as valid exercises of the Interstate Commerce and general welfare clauses. When Justice VanDeventer resigned and was replaced by Justice Black, and Justice Roberts and Chief Justice Hughes took a more moderate stance, the majority shifted to the “valid exercise” view.
(For an example of the perspective of the Four Horsemen, consider wage-and-hour legislation: they declared Federal regulation of minimum wages and maximum hours to be unconstitutional as invasion of State power, and then they declared State regulation of them to be unconstitutional as violating the constitutional guarantee of freedom of contract. In such a mindset, which has a lot to do with the current SDP arguments, you can imagine how such things as Social Security were viewed.)
Yet it seems these two are not presented equally in the Constitution. The first appears in the enumeration of specifc powers grated to Congress; the second is not a granted power, but simply part of the preamble.
Sorry, what’s an SDP argument again?
Substantive Due Process, on which those of us with a fondness for constitutional law can wax eloquent for weeks on end (literally) without resolving anything. But effectively it is the doctrine that says that the guarantee that “no person shall be deprived of life, liberty, or property without due process of law” not only guarantees that the government shall follow proper procedure (“procedural due process”) but shall not violate any right, enumerated or not, in doing so. As you might guess, it is subject to some arcane construction: the same guarantee is used in Lochner and Lawrence for ends that I suspect nobody, except possibly someone so doctrinaire a libertarian that Liberal would be chagrined, would support both outcomes.