Friday, March 11, 2005
On this day:

Federalist Friday - Social Security and the "General Welfare"

The first question that should be asked when considering any federal program is - is it constitutional? The same question should be asked of Social Security.

Social Security's constitutionality was originally defended based on the "general welfare clause" of the U.S. Constitution. The preamble of the Social Security Act states:
An act to provide for the general welfare by establishing a system of Federal old-age benefits, and by enabling the several States to make more adequate provision for aged persons, blind persons, dependent and crippled children, maternal and child welfare, public health, and the administration of their unemployment compensation laws; to establish a Social Security Board; to raise revenue; and for other purposes.
The question of what powers the general welfare clause confers on the federal government is one as old as the Constitution itself. The Anti-Federalists were concerned that its vague wording would be interpreted as an all-encompassing power for Congress to tax and spend virtually without restraint. James Madison answered them in Federalist No. 41 (emphasis added):

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the 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," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare." The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!

That all boils down to an assurance by Madison that the general welfare clause did not "amount to an unlimited commission to exercise every power which may be alleged to be necessary for the...general welfare," and that the clause was "explained and qualified" by the specific Section 8 powers enumerated afterwards. None of those enumerated powers delegate a power to create a social insurance program or an old-age pension program.

Nonetheless, the United States Supreme Court upheld the Social Security Act in Helvering v. Davis, Steward Maching Co. v. Davis, and Carmichael v. Southern Coal & Coke and Gulf States Paper. So, here we are.

(I should note that Alexander Hamilton had a more expansive view of the general welfare clause - the Court alluded to that fact in Helvering - but Hamilton didn't go out of his way to express that position in the Federalist Papers.)