Wednesday, March 21, 2018

Is Welfare Constitutional? (Part I)

Is welfare constitutional? I do not believe so, but this is not easy to answer since past precedent make it difficult to do so. American history and tradition to help the poor and those who are unable to take care of themselves was done through charities and local religious groups. This remained the predominate method of dealing with poverty until the Great Depression and FDR’s New Deal in the 1930s and 1940s. FDR successfully used the general welfare clauses of the Constitution to have the Supreme Court rule that social security was Constitutional in Helvering v. Davis (1937). The General Welfare clauses in the constitution read as follows:

The Preamble: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Article I Section 8: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States”

The following are the definitions for General and Welfare:

“General. 1: involving or applicable to the whole. 2: involving, relating to, or applicable to every member of a class, kind or group.”

“Welfare. 1: the state of doing well, esp. in respect to good fortune, happiness, well-being or prosperity.”

Thus, General Welfare means that Congress can pass legislation to carry out its enumerated powers to promote the good of all persons. Interestingly, in section 8 it means that Congress can pass legislation to carry out its enumerated powers to promote the good for all states within the Union (notice it refers to the United States not individual people). This concurs with Hamilton’s view of the constitution in Federalist 81: “The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer.” Or Madison’s view in Federalist 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part; be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.” What does this mean? First, since Social Security is not an enumerated power, this type of program authority falls to the States via the Tenth Amendment. Secondly, General Welfare in the constitution does not apply to individuals but to the States.

Justice Story’s commentary in 1833 was used to uphold the Social Security law, but he even said that the federal government had no reason to meddle in “systems of education, the poor laws, or the road laws, of the states.” In other words, Social Security was unconstitutional in 1833 and obviously the FDR Court misinterpreted the meaning of “General Welfare”.

In many regards, Social Security is not considered welfare, but an insurance policy since Americans pay into the system. The same can be said of unemployment and Medicare. However, today, since most Americans are taking much more out of social security and Medicare than they ever put into the program (including interest), it is welfare because it is a taking.

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