Social Security and the Constitution

Here's a conservative legal argument about Social Security that you probably will not hear tonight at the Republican presidential primary debate. At The Originalism Blog, University of San Diego law professor Michael Ramsey argues that Social Security is perfectly compatible with the original public meaning of the U.S. Constitution. Ramsey admits that he's "no great fan of that program or of substantively unlimited federal spending," but nonetheless concludes that the Constitution does not forbid it. Here's part of his case:

Congress' power to enact Social Security arises from the first clause of Article I, Section 8 (…what I'll call the Spending Clause).  By that clause, Congress has power "To lay and collect Taxes . . . to . . . provide for . . . the general Welfare of the United States."

Nothing in that phrasing purports to limit the purposes of the spending to the powers listed in the rest of Article I, Section 8 (or elsewhere in the Constitution).  It appears on its face to be a stand-alone power – a textual point made by Alexander Hamilton soon after ratification.  If the framers had wanted to limit the clause's scope to subsequently listed powers, they knew how to do it.  Article I, Section 1 describes Congress as having "all legislative Powers herein granted" and Article I, Section 8's necessary-and-proper clause gives Congress power to make regulations "for carrying into Execution the foregoing powers…"  So when the drafters wanted to make limiting cross-references, they made them expressly.  Correspondingly, the Spending Clause could have said that Congress has power to collect taxes "to carry into execution the powers herein granted."  The fact that the spending clause is not drafted this way is good evidence that this is not what was intended.

Read the whole thing here.