Social Security

Social Security and the Constitution

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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.

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  1. If you look at the Constitution as a whole, it is the federal government’s police power that is restricted. It can tax and spend to its hearts content sadly.

    1. And the worst part is, they’ve managed to do away even with the restrictions they had on police power.

    2. Actually, before the 16th amendment it really couldn’t. The income tax was a boon to spending.

      1. Good point. But the could have levied a national sales tax or a huge customs levy and funded social security before the 16th amendment. The income tax just made it easier.

        1. Whats the matter with you people? Can’t you just share once in a while?

          1. you share first. Disclose your last year’s tax statements showing how much you spent on charity.

            1. Please!? Are we a civilized country or not? Will we take care of those who need help or will we let them starve? Those are the questions we must ask ourselves…not how much I paid in taxes last year.

              1. I just want to understand this, sir. Every time a rug is micturated upon in this fair city, I have to compensate the owner?

                1. That rug really tied the room together.

              2. Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all.

              3. Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all.

                1. Yes, yes here comes Bastiat again! Do you guys ever raise your level of argument out of the 17th, and 18th centuries? Its the past! Things are different now! We need government to help the citizenry who are unable to fend for themselves in a world populated by capitalist wolves. You people have no compassion…ultimately you have no soul.

                  1. Fuck you.

                  2. A bit too stupid for even the actual Tony, but not obvious enough for a troll.

                    I’m confused. 🙁

                  3. Tony, you have become quite tedious.

          2. Damnit, I had a good answer to this, but it’s Troll Free Thursday.

            Tony isn’t quite as shrill or self-parodying (not counting his spoofs) as some of the others. Can I get a ruling here? Does he officially count as a troll?

            1. Excuse me, but who the f*ck are you?

              1. Since you’re usually thoughtful enough not to count as a “troll” I’ll indulge you.

                I used to be Jim, but then some statist asshats started commenting under that handle, so I changed mine last month. See a great example just today in the capital punishment thread, where there’s some bloodthirsty Jim ranting. I didn’t want to be associated with that.

            2. Tony is a spoof of a spoof that might have been a spoof in the first place. The real Tony, the self-hating gay guy from Tulsa (?), hasn’t been here in a very long time. Tony Prime disppeared around the same time as Chad, furthering my long-standing argument that they were always one-in-the-same.

              1. WTF? It took forever to submit then submitted twice. Damn you, arboreal rodents!

                1. That delayed double post was probably Tonys fault!

              2. You know there are those computer programs that can tell you if a certain piece of prose is written by the same person. It would be interesting to run it on the Reason trolls and see who is exactly who. Sort of troll forensics.

                1. I never was Chad, and about half the comments posted under my name are spoofs. I’m not about to correct anyone’s misapprehensions, though, because it’s mildly funny to watch people argue with obvious spoofs. (But here’s a clue: I would never refer to “souls” for any reason.)

            3. Tony is a spoof of a spoof that might have been a spoof in the first place. The real Tony, the self-hating gay guy from Tulsa (?), hasn’t been here in a very long time. Tony Prime disppeared around the same time as Chad, furthering my long-standing argument that they were always one-in-the-same.

              1. A lot of Tony is a spoof. But once in a while he seems oddly real. And I can see him and Chad being one and the same.

  2. Hold on a second. Two things:

    1) 10th amendement. Social Security was not specifically enumerated.
    2) Social Security does not provide for the “general welfare”. It provides for retirees at the expense of current workers.

    1. When the 10th Amendment says “powers”, they meant police powers. It didn’t mean the power to create programs and spend money. To believe that is to believe the 10th Amendment repealed the Necessary and Proper and General Welfare clauses, which it clearly didn’t.

      The meaning of “the general welfare” is a political question. No court is going to say that general welfare means only programs that benefit every single person in the country.

    2. “Social Security does not provide for the “general welfare”. It provides for retirees at the expense of current workers.”

      Indeed.

      It is physically impossible for the general welfare to be enhanced by providing specific welfare to some at the expense of others.

      It is merely a forced transfer payment.

      1. I don’t see why not. Many of those people getting the payments are someone’s parents. Without the money they’d be just as dependent on someone else.

        1. Or they could have, you know, saved during their working years and now not be dependent.

          1. And the penalty for not doing this (or not being able to adequately) is death? FREEEEEEEDOM!

            1. The default punishment for stupidity is death. Sometimes people get lucky.

  3. Speaking of the Constitution, Here’s a headline from the Daily Caller:

    “Romney leads exceptional New Hampshire poll with Huntsman in third, Perry in fourth”

    Romney 1st, Huntsman 3rd and Perry 4th. Gee, I wonder who came in second with 14%. Could it be a congressperson who respects the Constitution?

    FUCK YOU, tucker carlson.

    1. Really, if the purpose of a headline is to pack as much information into as few words as possible, that headline is perfect. I read it and immediately knew who came in second.

    2. At this point, there’s no way this is just media blindness. You have to actually try to avoid saying who came in second. Actively.

      But we already knew the media are a bunch of mendacious, controlling scum.

      1. I can’t shake the feeling that if you ever became Dictator for Life, you’d actually be one of the most bloodthirsty, monstrous human beings to have ever ruled over another man.

        Your kingdom would look like Unterland from Venture Bros.

        No logic behind it, it’s just this vibe I get. With Warty standing behind you and to the right, wearing a black suit of armor with an over-sized sword, never saying anything but eyes shifting constantly over the crowd and the faint tunes of extreme metal can be heard coming from the ipod built into the helmet.

        And crucified bodies stretching endlessly into the horizon…

        1. See, the thing is, is that I know I would eventually become that, as would we all, because power corrupts, and absolute power corrupts absolutely. Which is why I don’t want anyone to have any power at all.

          And my kingdom would look like Melnibone under the crueler emperors. I would employ Dr. Jest, and have the surgically altered slaves tortured to sing the one note they can speak, etc. You know the drill.

          1. Power corrupts and absolute power is kinda neat…

        2. The good side is that we’d be left alone. That and there would many a defenseless farm animal saved from the wrath of unspecified individuals.

        3. He’d put me in charge of ironic punishments. Nothing worse than a torturer with a sense of whimsy.

            1. Thin? Sinuous? Dammit, left out again. Harrumph.

    3. What an asshole. That is just unbelievable even by media standards.

    4. So is HIS name anathema in the newsroom? Is the mere printing of the name Ron Paul too scandalous to even think about?

      Now I kind of want Paul to win just to spite these self-important, self-appointed gatekeepers.

      1. It’s like Paul is Voldemort or something…

        1. DON’T SPEAK HIS NAME!!!!!

    5. Why did you mention Carlson? That piece was written by Alexis Levinson, and the title has since been fixed, although once again, you can see in the web address what the original headline was:

      Poll: Romney leads New Hampshire, trailed by Paul, Huntsman, and Perry, respectively

      1. It’s Carlson’s site.

      2. Also, go to the home page where it still reads:

        Candidates poll dance in New Hampshire – Romney leads exceptional New Hampshire poll with Huntsman in third, Perry in fourth

  4. So what’s the purpose of that list of 17 powers in Article I Section 8? Some 18th century version of brainstorming?

    1. I think the idea is there are different types of powers a government can weild and a spending and taxing power, which could in theory be used to regualte or what have you, is different than a general power to regulate.

      1. a spending and taxing power, which could in theory be used to regualte or what have you, is different than a general power to regulate.

        You’ve confused me now, MNG. If the power to spend and tax could be used to regulate, then how is it differnet than the power to regulate?

  5. Wuddya mean, this is the argument everybody uses : “Article I section 8 means the government can do whatever it wants to do. So much for enumerated power. woops”

  6. It’s amazing to me how little the people who ran federal government from 1776 – 1937 understood the Constitution and how much better people who were born generations later really grasped its intent.

    The Constitutional architecture is this. It is a federal government of United States with explicit powers. Should a state deem a legislative action not explicitly in the Constitution as unconstitutional, the remaining states could only compel that state to accept it if the Constitution is amended to do so.

    The founders didn’t need to limit the document from spending, which they may not have deemed in their interest to fund what was explicitly in the contract, because they ultimately had the ability to veto extensions of legislative scope.

  7. Somewhat offtopic, but: Is the constitution still relevant? We’ve shown over the last couple hundred years that we’re pretty good at getting around constitutional limits in many case. It seems to me that libertoids should focus on justifying their ideas on a consistent ideological framework rather than a document few understand correctly. Put another way – I cringe when I see someone using the constitution as an argument for a position, as if it was some sort of holy document, rather than, say, justifying those ideas based on pragmatism and reason. It’s not that the constitution isn’t a fine document, it’s just that I think we’d be better off talking about the principles behind the constitution rather than one implementation of those principles.

    Look, most folks probably don’t give a shit whether or not SS is constitutional. What would be more effective is explaining why SS provided by the federal government is a bad idea.

    1. It is certainly relevent. As long as it is there, there is a standard to which to return. If we didn’t have a Constitution, there would be no way to ever reverse any of this stuff. Things do change. Twenty years ago only kooks thought the second amendment meant something. Now it is the law of the land.

  8. James Madison said there was a “host of proofs” that this was not the intention.

    1. Some may say its an “appeal to authority” and they are damn right. But, when it comes to issues like this, Im siding with the guy who was the primary author.

      And if Madison is silent on the issue, I will listen to James Wilson.

  9. Is the constitution still relevant?

    Nahh! Ah had Turd Blossom check…it’s just a goddamn piece of paper.

  10. This clause enables Congress to Tax and levy income for the purpose of promoting general welfare. That said, couldn’t it be argued that social security only promotes the welfare of a minority of Americans? Shouldn’t it be said that social security is unconditional because it has negative macro-level affect on general welfare?

    1. You could argue that. But by that standard Congress could only pass programs that benefited every American equally, which is another way of saying the can’t pass anything. And the clause can’t mean that.

      1. national defense benefits everyone.

  11. He’s missing the point.

    The taxing power is, indeed, a grant of authority. However, the phrase “to provide for the General Welfare of the United States” is a limitation on that authority, not an independent grant of authority.

    Note the use of the word “to”. If the general welfare clause was an independent, stand-alone grant of authority, it wouldn’t be be in a dependent clause.

    So, yeah, the government has the power to tax us, but only to provide for the general welfare, not to provide for special benefits.

    If you regard this clause as ambiguous, then you go to the statemens of the drafters as to their intent. And they were very clear that the feds did not have the power to engage in “charitable” spending, i.e., Social Security, Medicare, Medicaid, etc.

    1. That is a better argument. But, it is pretty hard to think of anything that doesn’t disportionately benefit someone. For example no one would argue that the Federal Government doesn’t have the power to maintain and regulate the navigable waters of the United States. But building a canal or a harbor only benefits the place where the harbor or canal is built. How is that not charitable spending?

      1. You have to go to the understanding of “general welfare” at the time, John.

        As near as I can tell, the Founders intended “general welfare” to be the overall goal of the federal government (along with “common defense”), with the enumerated powers being the specific tools available to the government to strive for that goal.

        Federalist 41 is probably the best discussion of this, but I find it hard to follow.

        Regardless, the pure transfer of wealth from one person to another was not regarded as promoting the general welfare.

        1. I am not sure about that. They gave out pensions to war veterans didn’t they? I see what you are saying. And we don’t have Madison here to ask. So maybe at the time it did mean that. But, meanings can change over time. It didn’t mean that for very long. By that definition all the subsidies they gave the railroads are unconstitutional. I think the homestead act would be unconstitutional. We have nearly a two hundred year history of practice that says it doesn’t mean that.

          I am no fan of the living constitution. But at some point practice does go on so long that it becomes relevant in the interpretation. For that reason, I think it is pretty hard to say that the spending power is limited like this.

          1. They gave out pensions to war veterans didn’t they?

            Pensions aren’t charity/welfare. They are compensation for services rendered.

            By that definition all the subsidies they gave the railroads are unconstitutional.

            What subsidies were those?

            I think the homestead act would be unconstitutional.

            The homestead act did involve taxing and spending, as far as I know. Although it is an interesting question under what provision it was Constitutional.

            But at some point practice does go on so long that it becomes relevant in the interpretation.

            Perhaps. The great counterexample, of course, is the hundred year old traditional applications cast aside in the civil rights cases.

            1. What subsidies were those?

              The giant land giveaways and the government guarantees of loans for the Union Pacific and Central Pacific to build the transcontinental railroad. Go read the history of it sometime. It was corporate welfare at its worst.

              The homestead act did involve taxing and spending, as far as I know. Although it is an interesting question under what provision it was Constitutional.

              Hell yes it did. Where do you think the government got the land to give away in the homestead act? It bought it from France. They used tax money to buy land from France and then gave that land to people. Isn’t that welfare?

              Perhaps. The great counterexample, of course, is the hundred year old traditional applications cast aside in the civil rights cases.

              Not everything is civil rights. I don’t see how the board interpretation of a pretty damned vague clause rises to the level of obvious wrongness that segregation did.

              1. The land giveaways to railroads and homesteaders aren’t “taxing and spending.”

                Was the purchase of land Constitutional? It “promoted the general welfare of the United States” by expanding the territory of the United States, so I would say yes.

                Were the land giveaways to railroads and homesteaders Constitutional? They weren’t spending, so it wouldn’t have been done under that clause in any event.

                Loan guarantees? Sounds fishy, but I could argue that loans to promote common carriers promote the general welfare in a way that the straight transfer of wealth from one citizen to another do not.

                Not everything is civil rights.

                No, but those cases will forever stand for the principle that stare decisis is a guideline, not a mandate.

                1. RC how could they not be spending? Suppose obama got Congress to get Russia to sell us Siberia and then gave out the land to his cronies. That wouldn’t be a form or welfare? That wouldn’t be taxing and spending just because the people got land rather than money?

                2. I have recently come to think that the “General Welfare” clause applies to the general welfare of the republic, rather than the citizens. The Framers referred often to “the people”, so they knew they difference between the Gov’t and the People and made the appropriate reference when needed.

                  My thought is that the Govt has the power to act for the general welfare of maintaining/improving the republic. In this view, the Homestead Act and various incentives to the railroads (among others) can reasonably be argued to be in the best interests of the republic. I am not convinced that Social Security improves the general welfare of the Republic because in that case it can be argued that any Govt spending meets this test when clearly it doesn’t.

                  As far as land purchases by the Govt, most people point to the Louisiana Purchase. The was accomplished through a Treaty (as was the purchase of Alaska and, arguably, The Gadsden Purchase), and as such can be construed to be within the power of the Pres & the Senate.

  12. All within the state, nothing outside the state, nothing against the state.

  13. Reasonoids introduced to the Spending Clause. Holy shit, a lot of people will be rolling up their commemorative Founding Fathers banners this evening…

    1. Must you be a prick at all times? If you bothered to read the thread, which granted is asking a lot from you, you would see that there are not many people on here, sans RC Dean, who disagree with the reading SS is Constitutional. And RC makes a pretty reasoned argument.

      1. It’s still a short thread.

        And I don’t see how anyone can see that General Welfare is a plenary grant of power unless you also believe that enumeration was a brainstorming session, as Tulpa said above.

      2. John I’ve been posting here longer than you and it’s likely the majority view among people here that social security is unconstitutional. Hell, if you were not such a sloppy thinker (the google is liberal line from earlier today, backed up by the ‘evidence’ ‘thats why they have avoided anti-trust actions,’ which was immediately negated, was just the tip of said iceberg) you’d notice that a majority of posters here on this very thread seem to feel that way.

        1. 1. You haven’t been posting here longer than me. I have been posting here since at least 2002 sadly enough.

          2. You being your typical prick self. You have nothing to add to the debate and you just come on here to insult people. You are worse than Tony in that regard. At least he tries. What do you do? Scream Shirley Sherod?

          1. You’re a sloppy thinker and I point that out. I’m not the only one, just the most consistent. Now, run along and post something about Muslims bombing Norway, the exceptionless ESA, the anti-trust action free Google that is facing anti-trust action, or change your position on shirley sherrod within a weeks time…

            1. No MNG, all you do is point out to occasional pedantic point because that is all you have. You are just unpleasant to deal with. It is fun to go back and forth most of the people on here even if it does get nasty. But no you. You are just insufferable. I seem to get under your skin more than anyone and bring out your worst.

              1. I imagine someone as sloppy as you does find anyone who remembers and reminds folks of your constant sloppiness “insufferable.”

                But don’t take it personal and be so whiny all the time, you’re just typical of the sloppy assumption+assertion+conjecture that defines movement conservatism. I think you do everyone a service here by representing that typicality so exactly.

                1. No MNG, you are just boring. You occasionally make a pedantic point and hold it up like a war trophy for months. It is not becoming or interesting.

                  1. Why do you guys go at so often?

                    Both of you have been posting here longer than me, I can say that.

  14. Hasn’t this argument been around for a long time? Isn’t it known as the “general welfare” clause? Why does professor Ramsey decide he needs to coin a new term (“…what I’ll call the Spending Clause”) for this theory?

  15. 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.

    Oh, pish. This is weak.

    It would have been redundant to say that the government couldn’t spend money on something it didn’t have the power to do, or, conversely, to say that it did have the power to spend money on something it has the power to do.

    He’s arguing that, because the taxing clause doesn’t contain a completely pointless and redundant limitation, then there must be no limitation at all.

    Further, this begs the question of what was meant by drafting the spending clause the way it was, with a dependent clause that apparently lists the purposes for which spending must occur.

    And citing to Hamilton, without citing to Madison, is rather, err, convenient. Madison, in Federalist 41, is quite clear that the general welfare clause provides no additional authority beyond the enumerated powers. He’s also on record as saying “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.”

    1. Is there a difference between saying the government has the power to involve itself in certain areas and saying it has the power to spend in other areas?

      1. In Art. I section 8 there lists a bunch of powers and areas the feds can get involved in. They can coin money, they can grant copyrights, they can make regulations for the army the can make regulations for certain commerce. The power to levy taxes and spend it on things other than that is in the Spending Clause. Like the guy said, they knew how to limit it if they so wanted, but instead they explicitly took the broad language from the preamble as the only limits for that power.

        1. The power to levy taxes and spend it on things other than that is in the Spending Clause.

          You’re assuming the conclusion. Madison, among others, is pretty clear that the Taxing and Spending Clause (as its more properly known) did not give authority to spend money beyond the other enumerated powers.

          The argument is that listing a bunch of enumerated powers would be pointless if there was an unlimited grant of authority, e.g., “promoting the general welfare”.

          1. Madison is one guy who was involved in ratification dude. It’s neat to know what he thinks but people who think his notes are somehow authoritative are like someone thinking that Orin Hatch’s notes define any legislation passed while he was in the Senate.

            The text, for the reasons he gives, seems to argue against you. All you have then is “how does this square with the enumerated powers in Sec. 8?” And I’ve addressed that, you’re talking about different powers (powers to regulate, or grant priviliges, or set up offices, vs. the power to spend money). How these powers are distinct can be seen in the drinking age example I gave below.

            1. Do you think the enumerated powers are contrary to the general welfare of the United States?

    2. I think you are confusing the definition of “powers”. I think powers means authority. Isn’t it possible that Madison in Fed 41 is saying that you can’t use the clause to increase the feds authority to regulate and use its police power not that the feds can’t merely throw around money without regulating anyone?

  16. The difference between the feds having a power to regulate in an area and the power to spend in it can be seen with things like the 21 year old drinking laws they fostered on the states via their spending power. They could not regulate it straight out, that power is not in Art. I Sec. 8 or anywhere else, but they could spend money in that area.

    1. They could not regulate it straight out

      You sure about that? Under the current state of commerce clause interpretation, it’s hard to see how the courts could say they couldn’t regulate drinking.

  17. This brings up an interesting point that Orin Kerr made on Volokh the other day. Most of the mainstream theorists who oppose the mandate would agree that under the Spending Power the government could choose to address what it sees as a need to expand medical coverage by creating a huge government program a la Medicare. But it is because they tried to work through a private system that they left themselves open to a constitutional challenge, and that seems odd. Do libertarians find regulation of the private sector to be coequal in evil to just straight up nationalization?

  18. What a shitty argument. Try harder, Ramsey. It’s unconstitutional on its God-damned face, and making spurious assertions by reading noxious bullshit into constitutional text that aren’t there will not change that.

    This guy’s either a closet liberal, or a typical shithead neo-conservative.

    1. Well said!

  19. What on Earth makes this a conservative argument? Saying government can do anything it wants doesn’t sound very conservative to me.

    1. No its saying the government can spend money on anything it wants because he has broad spending powers granted to it in the Constitution. Governments do a lot more than spend money.

      1. What do they do that doesn’t require money, even if it is just to pay congressmen?

  20. ” It appears on its face to be a stand-alone power ? a textual point made by Alexander Hamilton soon after ratification.”

    It doesn’t matter what Alexander Hamilton said.

    The only things that counts is what James Madison said.

    And he said otherwise.

    1. On a semi-related note, maybe our ancestors shouldn’t have demolished the confederacy of states in 1789, eh? How ’bout them Articles of Confederation?

      1. If we had stuck with the AoC we all would have been speaking British by 1810.

  21. “Madison, among others, is pretty clear that the Taxing and Spending Clause (as its more properly known) did not give authority to spend money beyond the other enumerated powers.”

    Don’t tell the liberals and faux-conservatives. They won’t give a shit.

    1. To lay and collect Taxes . . . to . . . provide for . . . the general Welfare of the United States.”

      That is a broad ass clause. And further, by the strict reading of it that you advocate, you could go back probably to the Northwest Ordinance and find acts of Congress that were technically unconstitutional. The fact that no one has ever read it that strictly goes a long way towards establishing that it doesn’t mean what you claim it does.

      1. 1) The Northwest Ordinance was passed under the Articles of Confederation, just for the record.

        2) You can find unconstitutional acts perpetrated all throughout the history of this country under the constitution of 1789, from George Washington’s presidency to the times of the Mexican-American War to the precursor events of the War Between the States to World War I to the creation of the Federal Reserve to the New Deal, ad infinitum. I don’t give two shits about how, according to you, “nobody has ever read it that strictly”, and I find the assertion that because majorities don’t “read it that strictly” supposedly “goes a long way towards establishing that it doesn’t mean what you claim it does” hellishly laughable.

        1. The Constitution is not a holy book. It didn’t come down from God. It was written by people and it is the product of a political process. And the constitution belongs to the people and the political process. It is not entirely clear what it means. These points are very debatable. So how do you figure out what something means? Well, the people and the political process get a vote in that. If people of this country decide through the political process that a particular clause means X and that practice continues for decades or centuries and the interpretation isn’t completely out in left field, that is pretty strong evidence that it means that. And it is stronger evidence it means that than one or two ambiguous writings from the framers.

          You only find it hellishly laughable because you don’t know your ass from a hole in the ground about how actual law and statutory interpretation work.

          1. “The Constitution is not a holy book. It didn’t come down from God. It was written by people and it is the product of a political process.”

            1 – It was written by a collection of people that, technically, were constrained as to the content and nature of the document they were gradually authoring in absolutely no way whatsoever; the circumstances of the Constitution’s creation, that it was all a “product of a political process”, therefore, cannot possibly be construed to be a reason for its supposed fallibility. Put simply, that argument would be valid if it happened within the stringent, long-established confines of a permanent framework, meaning it couldn’t be anything a significant as a national document of supreme law anyway. They weren’t writing a fucking building code — they were writing THE FRAMEWORK-TO-BE ITSELF. Pull your head out of your ass. This argument is as old and tired as Nancy fucking Pelosi.

            2 – Nothing is a holy book, and nothing came down from God, so nothing is certain, so we should just read bullshit into everything because there’s a mathematical (however tiny) chance that it might be so. What a fucking awful attempt at an argument.

            “And the constitution belongs to the people and the political process.”

            The political process belongs to, and is subordinate to, the Constitution. Only the amendment process changes that, and the original text of what we’re discussing here hasn’t been amended. What the fuck are you smoking today?

            “It is not entirely clear what it means. These points are very debatable.”

            Yes, it is. No, they aren’t.

            “So how do you figure out what something means?”

            You read the fucking text.

            “Well, the people and the political process get a vote in that.”

            Only through the amendment process. Otherwise, no, they don’t.

            “If people of this country decide through the political process that a particular clause means X and that practice continues for decades or centuries and the interpretation isn’t completely out in left field, that is pretty strong evidence that it means that.”

            What political process, pal? I don’t recall the text ever being amended — do you? Otherwise, that’s not legitimately possible, and is not permissible.

            “And it is stronger evidence it means that than one or two ambiguous writings from the framers.”

            The consensus of a population of people means absolutely jack-fucking-shit next to the known intent and motivations of the creators of the very document which is the framework of our government, and the relation of our government to our society, and the supreme law that ultimately affects the very fabric of our civilization. Are you really going to argue this? Are you seriously arguing for democracy?

            “You only find it hellishly laughable because you don’t know your ass from a hole in the ground about how actual law and statutory interpretation work.”

            1 – Personal attacks? It’s your right, I guess.

            2 – More copious bullshit.

            1. “and that practice continues for decades or centuries”

              And that’s the most heinous crime you’ve committed in your argument, John — because it’s always/often happened, it’s right, or it’s so, or it’s the way it is, or it’s the way it should be. Jesus Christ.

            2. If you think any document is absolutely clear as to its meaning, you are nuts. There is a lot that goes into interpretation. Yes, Congress, the President, and ultimately the people get a vote as to what the Constitution means. It is supposed to work like that. You say it is clear. No it is not. Read the damned text. “General welfare” is an ambiguous term. It could mean a lot of things. And the writings of the founders are not that clear either.

              In the end all you are saying is that it means that because you think it does. Well that is nice pal. But that is hardly the final word on the subject.

              1. “If you think any document is absolutely clear as to its meaning, you are nuts. There is a lot that goes into interpretation. Yes, Congress, the President, and ultimately the people get a vote as to what the Constitution means. It is supposed to work like that.”

                No, they don’t, and no, it’s not. This is why it’s supreme law. If you want to change it, you amend it through the legitimate process and plainly lay out whatever you want to build into it. The rest I’ve already shared my take with you on.

                This isn’t going anywhere, evidently.

                1. You are begging the question. Sure it is the supreme law. But what do the words mean? How do we determine that? We determine that a lot of ways, though the courts primarily but also through the political process in the form of elections.

              2. Most of the enumerated powers would clearly fall under the general welfare clause if it were indeed an independent power grant. Why are they listed separately?

                Note also that, despite the fact that the phrase “provide for the common defence” is tossed in in much the same way as the general welfare clause, yet A1S8 still bothers specifying that Congress can commission a navy, purchase shipyards, and provide rules for calling forth the militia, make rules regarding captures on the high seas, etc. There is no way that, if the “provide for the common defence” line was enough to grant power to Congress, they would have to specify that Congress could also build a navy. That’s a pretty obvious and necessary thing for providing for the common defense, no?

            3. Man, I wish I had said that!

      2. There isn’t a period after “United States”. There is a semicolon. The entire section is one big run on sentence. Lending a tiny smidge of extra evidence that that entire rest of the Constitution wasn’t intended to be Null and Void because of a grant of unlimited power in Article 1 Section 8.

        Of course if you don’t already believe that, I doubt the punctuation is really going to change your mind. I’m just sayin.

        1. It doesn’t make the rest of the Constitution null and void. The feds are still strictly limited in their police and regulatory powers.

          1. Laughed out lout for real. That is some funny shit right there.

            Feds are strictly limited as long whatever they do provides for the general welfare? For Real?

            They don’t ever do anything that they don’t claim is for the the general welfare. And nowhere else in the constitution does it define “general welfare”, unless you accept our crackerty-ass-cracker reading where the actual specific powers that occur in the same sentence are what are meant specifically by the phrase of “general welfare”.

            Face it. You agree with MNG. According to the John-MNG reading of the constitution, the Federal Government can do whatever it wants, excepting specific prohibitions as carved out by the ammendments. And it’s all constitutional.

            1. No spend for the general welfare is still subject to the other limitations. If Congress can’t enact a national speed limit, it can’t use its spending power to do so. It couldn’t deny equal protection by giving white people and no one else a monthly stipend.

              Yeah, the clause the says “spend for the general welfare” means that they can spend a hell of a lot of money on a lot of different things. Sorry. The language says what it says. If I were writing it, I would have written it differently. But I didn’t write it. And I am not going to pretend it says something other than what it does and how it has been interpreted since day one.

              More importantly, it doesn’t say the government has to be huge. It just says it can be huge. If you don’t like a big government, do something about it in the political process. Stop whining and twisting the Constitution to change what you don’t like.

              1. —“spend for the general welfare”—

                Since you put quotes around it, I should tell you that that phrase never occurs in the Constitution.

              2. “it can’t use its spending power to do so”

                Isn’t the spending power exactly how we wound up with a de facto national speed limit and a de facto national drinking age?

            2. It’s just tragic that people honestly believe that shit. I never thought John was one of them.

              1. It says what it says. I wish it said something different. But it doesn’t. I am not going to bullshit myself into believing it says something it obviously doesn’t because I don’t like the result.

                1. It says what it says.

                  Weren’t you just going on about how we don’t understand the ambiguity of the general welfare clause?

                2. —“spend for the general welfare”—

                  See above.

                  1. Re:

                    —“I am not going to bullshit myself into believing it says something it obviously doesn’t”—

  22. Conservatives often mistake legality for morality, and get hissy fits when someone suggests legalizing narcotics. But libertarians, especially of the paleo variety, are no better. They mistake constitutionality for morality. They don’t like social security so they argue that it is unconstitutional. They don’t like the Federal Reserve so they argue that a central banking system is unconstitutional. They don’t like the income tax so they spawn off a conspiracy movement arguing that the 16th was never ratified.

    Face the facts folks, Social Security is constitutional. So is the Federal Reserve and the income tax. If you want to get rid of social security, fight it head on for its immorality, instead of trying to make an end run by claiming it’s illegal. That will get you nowhere in the court of public opinion.

    1. If you want to get rid of social security, fight it head on for its immorality, instead of trying to make an end run by claiming it’s illegal.

      Sure, I agree.

      Because SCOTUS has completely abrogated its role as a coequal branch of government charged with defending the entirety of the Constitution, and not just the currently fashionable bits. And because the vast majority of the citizenry has decided that it wants Big Daddy and Big Momma Government, not Constitutional government.

    2. False Dichotomy. There’s no reason you can’t simultaneously claim something is unconstitutional AND immoral, and work to get it repealed by non-judiciary means.

    3. “They mistake constitutionality for morality.”

      False. There are those like me who argue that a law cannot be moral unless it is constitutional, since the government must abide by its constitutional boundaries. I deny the reverse, however: I can name a ton of constitutional policies that would be (or are) immoral.

  23. Does it strike anyone as odd that a document concerned almost entirely with enumerating and liming power, would throw in an unlimited spending power?

    This isn’t the only use of the term “general welfare” in the Constitution, either. It also shows up in the preamble.

    The difference between the feds having a power to regulate in an area and the power to spend in it can be seen with things like the 21 year old drinking laws they fostered on the states via their spending power. They could not regulate it straight out, that power is not in Art. I Sec. 8 or anywhere else, but they could spend money in that area.

    An excellent example of why reading the Taxing and Spending Clause as giving an unlimited power to spend undermines, and is inconsistent with, a government of limited enumerated powers.

    1. It strikes me as odd. But that doesn’t make it impossible. Maybe they were more concerned with police powers than they were with spending powers. It is not unimaginable to think that they strictly limited the federal government’s ability to regulate and police but let it do what it wanted with regards to taxes and spending.

      1. Bullshit. I don’t even know why you’re pushing this crap.

      2. It strikes me as odd. But that doesn’t make it impossible.

        Not impossible. But, perhaps, in interpreting the document, it argues against a free-floating unlimited power, and in favor of a limited one?

        1. It isn’t an unlimited power. I think you could definitely make the argument that Congress shouldn’t be able to use the spending power as a way to coerce actions and get around the limits on its regulatory power. I think the decisions saying they could extort the states into the 21 year old drinking age were probably wrong. But, that doesn’t mean they can’t build shit and give away money.

          1. I think you could definitely make the argument that Congress shouldn’t be able to use the spending power as a way to coerce actions and get around the limits on its regulatory power.

            If the power to spend on “General Welfare” is a co-equal, stand-alone power, then I don’t think you really could make those arguments.

            The only relevant question would be whether the spending “promoted the General Welfare.”

            The argument that Congress can’t get around limits on the enumerated powers via the taxing and spending clause only comes up if you start with Madison’s interpretation, which is that the reference to general welfare does not create a separate enumerated power, but merely confirms that Congress can tax and spend to implement the enumerated powers.

            1. No spend for the general welfare is still subject to the other limitations. If Congress can’t enact a national speed limit, it can’t use its spending power to do so. It couldn’t deny equal protection by giving white people and no one else a monthly stipend.

              1. Tell me, how much did it cost to get your brain removed and replaced with rat droppings?

                Equal protection isn’t an enumerated powers issue, it’s a 14th amendment issue. Note that Congress is specifically empowered to provide for forcibly transporting escaped slaves back to their owners, but obviously can’t do so anymore in view of the 13th.

                And I don’t see why Congress can’t implement a national speed limit under the current state of commerce clause jurisprudence.

    2. It’s not odd — it’s (and Dean, I’m using this word with a very strict, definitive meaning in this instance, something I do infrequently) bullshit. It’s counter to everything written in the plain text of the document and the known intentions of its framers. Period.

      I want somebody to actually PROVE to me, to you, to us, right here and now, that it’s true. Lay it out. Because all I’ve seen so far are a bunch of speculative, contemplative ‘maybe, um um’ posts, banal recitations of retarded political perceptions, baseless and callous intimations, and a piece-of-shit argument by Mr. Ramsey that’s not even foundationally credible. Give me a fucking break, statists.

      1. Somebody wrote above that if something’s immoral, argue against it because it’s immoral without pursuing constitutional arguments. But it’s just a really, really great bonus if it’s both immoral AND unconstitutional, ain’t it?

      2. The proof is in the document. The clause doesn’t have any limitation. You don’t like and frankly I don’t either. But sometimes life is like that. That is what the damn thing says. You want it to say something different. And I wish it said that too. But it doesn’t say that. The spending clause, unlike the commerce clause, is a giant trap door that allows the federal government to get huge. That is the way it has been read since day one. If you don’t like that, have a seance and take it up with the framers or (gasp) amend the damn document.

        1. The clause doesn’t have any limitation.

          Then its a good thing that its not a grant of power, but a limitation on the authority to tax, isn’t it?

          1. To lay and collect Taxes . . . to . . . provide for . . . the general Welfare of the United States.” It doesn’t say “the general Welfare or carrying into Execution the foregoing powers?”

            It could have said that. And it didn’t. That is a real problem. I don’t see how you can read in a limitation that is not there.

            1. To lay and collect taxes to provide for the general welfare of the United States IN ITS EXECUTION OF THE LEGITIMATE POWERS GRANTED TO IT BY THE REMAINDER OF THE CONSTITUTION. As in the welfare of the apparatus, the entity, that carries out the enumerated powers. That’s it. LIMITATION.

              1. “IN ITS EXECUTION OF THE LEGITIMATE POWERS GRANTED TO IT BY THE REMAINDER OF THE CONSTITUTION.”

                That is nice but it doesn’t say that. You are just pretending it does because you like it that way.

                1. Yeah, except that’s what everything about the constitution, from what it says to the way it’s structured, shows it is. The capitalized text was an explanation, John. Let’s not pretend to be silly.

                  1. Yeah your explanation. And that is correct why? That is what you think it means. But that is hardly definitive. By the ordinary definition of the language, it doesn’t mean anything like that. You are reading that language into it because you don’t like the result.

                    1. “By the ordinary definition of the language, it doesn’t mean anything like that.”

                      We’re obviously not reading the same document here.

                      Maybe the Founders should have written a book on every word in the Constitution, and then books on every word in the every book about every word in the Constitution. That way, maybe it would have been harder to bullshit yourself into believing that.

                    2. Sorry General Welfare is a broad term. They didn’t say “only for these purposes listed in this document”. They said general welfare. And that pretty much can mean anything.

                    3. I’m convinced.

                      The Founders either:

                      (a) secretly wanted a government that wasn’t hemmed in by these petty “enumerated” powers, and found a way to sneak in a big-ass loophole, or

                      (b) were too incompetent to draft a document creating a government of limited, enumerated powers, and left a big-ass loophole right smack in the middle of it.

                    4. To be honest, I actually lean towards the latter alternative.

                      Why the fuck did the Founders have to use such ambiguous language? I realize English was different back then, but it couldn’t have been that hard to specify a bit more carefully that “general welfare” only qualifies these 17 powers. The fact that most people, even legal scholars, read it as “Yep, it says general welfare, therefore anything goes!”, says something about the clumsiness of the wording. It’s not all about the impotence of the paper, either (because God knows politicians will take everything and the kitchen sink unless it’s absolutely impossible) – the First and Second Amendments have fared surprisingly well to this day because they’re pretty explicit. Article 1 Section 8, on the other hand, has completely failed.

            2. 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.

  24. I wish you all would get beyond analyzing the text of the Constitution to determine what the feds should or should not be doing. The simple truth is that our government exercises exactly those powers that the people do not seek to deny it, regardless of what the Constitution says. If the people want Social Security, they get it. If the people want a standing army and an empire, they get it. If the people want to replace slums with shopping malls, they get it. If the people want to choke job creation with excessive regulation, they get it. All without any regard to what the Constitution has to say about these things.

    By couching arguments in Constitutional terms, you are ceding the moral high ground in the hopes that a piece of paper will better protect your freedom. Good luck with that: you can see where that’s gotten us so far, and it isn’t closer to liberty.

    1. Sure. Except moral arguments don’t mean shit to a civilization-full of useful idiots and statists — about as much, in fact, as constitutional arguments.

      1. The government belongs to the people. And they get the government they deserve and want. Shoving small government down an unwilling population’s throat via robed overlords inventing whatever law they think is for the best is no better than shoving liberaltopia down their throats via the same method.

        1. Shoving small government down an unwilling population’s throat via robed overlords inventing whatever law they think is for the best is no better than shoving liberaltopia down their throats via the same method.

          QFT.

          The only way things will change for the better is if we get the people to *want* less government. Using technicalities in the Constitution to achieve a temporary reduction in the scope of the federal government wastes precious resources that could be educating people on the evils (moral arguments) and inefficiencies (utilitarian arguments) of government.

          1. I agree. But will that actually happen/work?

            1. My contention is it’s the *only* approach that will possibly work. So we might as well concentrate on that, because this piecemeal “My piece of toilet paper says THIS!” shit is making this government totalitarian at an alarming pace.

        2. The government belongs to the people.

          I think you got who belongs to who switched around there, John.

      2. squarooticus makes a good point. Too often, I do the very same thing.

  25. Shoving small government down an unwilling population’s throat via robed overlords inventing whatever law they think is for the best is no better than shoving liberaltopia down their throats via the same method.

    Except, of course, that is exactly what the Constitution is for, you know – forcing people to live with a small government in spite of the temptations and desires to get a big strong one, just for a little while, because the right people will be in charge.

    Forcing people to be self-reliant is not at all on the same moral plane as forcing people to bow down to authority.

    1. It’s morally equivalent. Whether the authority is a vicious tyrant or the random luck of nature, the victim is still victimized.

      What’s superior to both is a democratically formed state that protects the interests of the people to whatever extent they deem necessary. It’s still tyranny even if it’s a piece of paper (or a particular cult’s bastardization of a piece of paper) trumping their will.

  26. Arguing about what the Founders would say about SS is pointless since life expectancy was like 35, and figuring out how to deal with a large population of elderly people would not have been a priority. The world has changed–the human species has changed–so to expect their government to work for us is silly.

    SS is one of the most successful government programs ever invented, and there’s nothing wrong with its funding scheme that can’t be fixed with minor adjustments. So complaints about it aren’t about it not working or being too expensive, they’re about you guys not being able to admit that a government transfer program actually works. Why you think the world MUST accord to your beliefs rather than the other way around is just strange, and something, I feel, you should work on. (Those very sophisticated beliefs amounting to the apelike grunt “government=bad.”)

    1. The question is not, and never was, whether the Founders would agree with SS or not. The question is whether it falls within the paradigm of accepted legislative procedure or not. There’s nothing prohibiting Congress from passing an amendment that allows the feds to tax and spend on pensions. Then it would be 100% constitutional and we wouldn’t be having this debate. (We could still argue about its morality and effectiveness, but not about its legality)

      BTW, a neocon could make the same argument about habeas corpus or the 4th Amendment as you do about SS. “Those musket-wielding, ruffle-wearing founders didn’t have to worry about Islamic suicide bombers or plane hijackers, so it’s pointless to argue whether they would agree with warrantless wiretapping or unlawful detention. Today is today, and we need to fight terror by today’s standards!”

      1. So a program that’s been around for 75 years isn’t constitutional just because you say so?

  27. Has anyone asked this follow-up question:

    What power does Congress have to spend *borrowed* money?

    There is this clause in Art. I, Sec. 8: “To borrow Money on the credit of the United States”

    There’s Amendment 14, sec. 4 – the validity of U.S. public debt not to be questioned.

    But where is the authority for Congress to *spend* the money it borrows?

    Even if the spending clause authorized Congress to spend *tax* money for unenumerated purposes, there is no general authorization to spend *borrowed* money – that has to come from the enumerated powers (eg, Congress can regulate interstate commerce, so it can spend borrowed money to enforce the regulations).

    It’s fair to say that a lot of government spending involves borrowed money – how to justify spending borrowed money on all the programs not mentioned in the Constitution?

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