The Constitutional Revolution of FDR

Lisa Murkowski, commenting on Social Security and other “safety net” programs:

That somehow or other these are unconstitutional because they’re not enumerated within the powers of the constitution, that somehow or other we should just be eliminating these, I think that is out of the mainstream.

I suspect she’s right. I haven’t seen any polls on this, but I’m guessing the vast majority of Americans believe that Social Security (SS) is constitutional and don’t want to see it eliminated.

This is unfortunate, as SS should have been ruled unconstitutional from the outset. The 10th Amendment reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

As a straight forward proposition, then, the creation of SS was unconstitutional, since nowhere in the Constitution is Congress empowered to create such a program. Unfortunately, politics sometimes trumps the rule of law, and this happened in a major way under FDR’s “constitutional revolution” of the 1930s.

SS was part of FDR’s New Deal, a series of programs designed to change and expand the role of the federal government in unprecedented ways. When the Supreme Court began to rule that the New Deal policies violated the 10th Amendment and were therefore unconstitutional, FDR responded aggressively. He pushed to expand the size of the Court so he could fill the new vacancies with justices he could control. FDR’s attempt to “pack the Court” ultimately failed, but it was enough to intimidate the existing justices into “discovering” new federal powers in Congress’ charge to “provide for the general welfare.”

Thus SS and other New Deal policies were suddenly deemed “constitutional” and the precedent was set to justify all manner of constitutional overreach. This has led directly to federal intrusions into education, health care, welfare, housing, and the many programs and policies that have crippled our economy and which should properly be left to the states.

Before continuing, it’s worth noting what some of our Founding Fathers had to say about the Constitution’s “general welfare” clause and the proper role of the federal government:

“To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.”
— Thomas Jefferson

“Charity is no part of the legislative duty of the government.”
— James Madison

“Our tenet ever was that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated, and that, as it was never meant that they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money. “
— Thomas Jefferson

“They [Congress] are not to do anything they please to provide for the general welfare…. [G]iving a distinct and independent power to do any act they please which may be good for the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they sole judges of the good or evil, it would be also a power to do whatever evil they please.”
— Thomas Jefferson

“If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one….”
— James Madison

“With respect to the two words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
— James Madison

“I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.”
— James Madison

“Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”
–Thomas Jefferson

“We must confine ourselves to the powers described in the Constitution, and the moment we pass it, we take an arbitrary stride towards a despotic Government.”
— James Jackson

“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.”
— James Madison

“Whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”
— Thomas Jefferson

“The legitimate powers of government extend to such acts only as are injurious to others.”
— Thomas Jefferson

“[T]he powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”
— James Madison

” The government of the United States is a definite government, confined to specified objects. It is not like state governments, whose powers are more general. Charity is no part of the legislative duty of the government.
— James Madison

It’s obvious that the “general welfare” clause has been abused to expand federal powers far beyond what was intended by the Framers. Unfortunately, we’re stuck with these missteps. They are so well established and relied upon that, for all practical purposes, they are the Constitution, despite the fact that they corrupt that sacred document.

Update: Here’s a short history of SS and how it came to be deemed “constitutional.”

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