Philip posted an astute comment re the similarities between social security & obamacare; and others posted valuable comments on social security.
Yes! Social security is unconstitutional as outside the scope of the legislative powers delegated to Congress. [See Discussion herein on Congress' Enumerated Powers.]
Even so, in the three "social security" cases of the 1930's, a majority of the judges on the supreme Court said (in effect) that Congress may use the "taxing clause" to promote it's conception of what would advance "the general welfare" (Art. I, Sec. 8, cl. 1), without reference to whether Congress' conception of what serves "the general welfare" is one of the enumerated powers. See, e.g., Helvering v. Davis (1937) and the other two ss cases cited therein.
But that was most manifestly NOT the original intent of the "general welfare clause"! In this paper, I prove the original intent of the "general welfare clause" by means of quotes from Madison & Hamilton in The Federalist Papers.
So! How did we get from the original intent of that clause to where we are now? Alas! (and this shows why we must never put our faith in other people), Alexander Hamilton laid the groundwork for the transformation. Yes, Hamilton, who wrote so brilliantly in The Federalist Papers of a federal government which was strictly limited to its enumerated powers, later argued a different position. In his Report on Manufactures (1791), written in his capacity as Secretary of the Treasury, he argued for instituting "pecuniary bounties": I.e., if we import widgets but desire to manufacture them here, the federal government should lay an import tariff on the imported widgets & then pay the proceeds of the tariff over to domestic manufactures of the widgets. Hamilton said this would encourage domestic manufacture & advance the "general welfare".
Hamilton said it was up to Congress to decide what served the "general welfare". He said,
The terms "general welfare" were doubtless intended to signify more than was expressed or imported in those which preceded; otherwise, numerous exigencies incident to the affairs of a nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union to appropriate its revenues should have been restricted within narrower limits than the "general welfare;" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.
It is, therefore, of necessity, left to the discretion of the National Legislature to pronounce upon the objects which concern the general welfare, and for which, under that description, an appropriation of money is requisite and proper.
Woe! But no one is perfect, no one is always consistent; and it is Hamilton's writings in The Federalist Papers which are authoritative on the genuine meaning of the Constitution. See minutes (and accompanying text) of the Board of Visitors of the University of Virginia of March 4, 1825, where Thomas Jefferson & James Madison show the high authoritative status of The Federalist Papers.
So Hamilton's later writings in his capacity as Secretary of Treasury are no more authoritative as to the genuine meaning of the Constitution than the incoherent ramblings of the current Secretary of the Treasury.
Anyway, it was Hamilton's unauthoritative writings in his Report on Manufactures of 1791 - as amplified by Justice Story in his equally unauthoritative Commentaries on the Constitution - which supreme Court judges used in the three social security cases of the 1930s to justify social security. They also expressly rejected the view laid out by Madison [and Hamilton] in The Federalist Papers. [See the last para on page 640 of the majority opinion in Helvering v. Davis.]
This unhappy story also shows what happens when we don't nip problems in the bud - why we must be eternally vigilant - and why we must never compromise on Principles.
Note: Hamilton's Report is online -here is the link:
http://www.constitution.org/ah/rpt_manufactures.pdf
It's a long document so use the "find" function for "pecuniary bounties" and "general welfare".
And Now, obamacare:
Constitutionally speaking, there is no material difference between social security, medicare, and obamacare. All are unconstitutional as outside the scope of the legislative powers granted to Congress by The Constitution.
However, the People love social security and medicare. They hate obamacare - perhaps because they understand that obamacare is The Reckoning: Social security & medicare are too expensive and are going bankrupt - obamacare provides the answer. It will kill off seniors by denying them medical care. That solves the fiscal problems with social security & medicare.
But! Since we have become a People who seek to live at others' expense and despise Truth, we don't want to deal with this issue honestly. If we dealt with it honestly, we would repeal or nullify obamacare; and we would (in an organized manner) gradually dismantle the social security & medicare programs. And yes, this could be done in a way which does not throw dependent grannies off the cliff.
But the People want to keep social security and medicare. So! The State Attorneys General have to come up with a legal argument which doesn't attack social security & medicare, but asserts that obamacare is unconstitutional. So their "argument" [and this is such a stupid & bad argument, I would never make it] is that never before has the federal government required us to buy a product [health insurance].
Why is that argument stupid & bad? Two reasons: (1) It's a lie. For many decades, the federal government has required us to buy social security insurance. Then it required us to buy medical insurance for when we reach 65 (medicare). Obamacare requires everyone (except, apparently, the Muslims who are exempt because buying insurance is against their "religion") to buy medical insurance for their medical care for now.
(2) Note the standard which they are asserting as the Test of Constitutionality: They are saying that what the government has required us to do in the past is the standard of constitutionality! They can't say the Constitution doesn't authorize Congress to require us to buy health insurance, because that would apply equally well to social security and medicare.
Tags: Alexander Hamilton, Report on Manufactures of 1791, general welfare clause, obamacare, social security
Permalink Reply by Mike Foil on So, basically, it seems that even Hamilton was a politician. When he was wanting something, from the people (i.e. the passage of the Constitution), he wrote how limited the government would be and restricted they would have to operate under the constitution; but, when it was passed and he was one of those in charge, his story changed to expanding the limited scope to a more "living document". How disappointing!
But, still, it shows that Hamilton respected the intelligence of the common people to understand the importance of getting a limited government.
Permalink Reply by Phillip J. Barker on Permalink Reply by Phillip J. Barker on Permalink Reply by Phillip J. Barker on 
Permalink Reply by Publius Huldah on Permalink Reply by Publius Huldah on Permalink Reply by Publius Huldah on Permalink Reply by Publius Huldah on I know Hamilton's mind fairly well, I think. When he wrote The Federalist Papers, he spoke passionately about the virtues of a limited civil government of enumerated powers, power from the people, etc. He believed it!
But he was a lawyer who actually practiced law. I know how litigation attorneys think. What we do is come up with arguments to justify the result we want for our client. If I were representing you in litigation, that is what I would do - that's how we win. Judges do that when they write opinions to justify the result they want. Hamilton wanted this Country to become a commercial power. So he wanted to encourage manufactures. The pecuniary bounties would certainly encourage the development of manufactures in this Country. So he constructed an argument to justify the result he wanted. I don't think he lied, or was cynical, or changed his basic political philosophy. He was just being a lawyer and constructing an argument to get the result he wanted for this country - to make us a rich commercial power.
But one can, of course, write in a manner which is free of any bias - that is what I do in my papers where I use The Federalist Papers to explain the objective - original & genuine - meaning of the Constitution.
But, if I represented you in litigation, I would use an altogether different approach.
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Permalink Reply by Phillip J. Barker on Permalink Reply by Phillip J. Barker on © 2013 Created by Judson Phillips.
