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It was, is, and always will be unconstitutional. As the old saying originated: "The switch in time that saved nine" that destroyed most of our constitution. That may all be about to change with this court. We can hope...T
Mitt Romney may believe Social Security is constitutional, but he would have a hard time convincing some of the people who pushed the Social Security Act into law.
As I wrote in my book, "Control Freaks," some of the main players involved in creating Social Security believed it was unconstitutional -- and for good reason.
Yet, for them, not unlike many in today's Washington, the ultimate questions were not: Is this good for the long-term future of the country, and does Congress have authority to do it? They were: Will this serve our immediate political interests, and can we get away with it?
At Monday's Republican presidential debate, Romney attacked Texas Gov. Rick Perry for, as Romney put it, holding the view that "Social Security is unconstitutional."
It is important to note that neither Perry nor any other contemporary Republican leader is calling for the abolition of a program that has been in place for more than seven decades.
But was it founded on a sound constitutional basis? Is there anything to be learned from how it was forced through?
Thomas H. Eliot, a future Harvard Law professor, served as counsel for the Committee on Economic Security, the body that President Franklin Roosevelt created to draft the Social Security Act.
In 1961, 26 years after the bill was enacted, Eliot gave a speech at the Social Security Administration in which he said he was relieved he had never been called to testify about the constitutionality of the "old-age insurance" provision in the bill.
"The opponents rallied as soon as the bill was introduced," said Eliot. "Those opponents were spearheaded by the U.S. Chamber of Commerce and the National Association of Manufacturers. Counsel for the latter, John Gall, made effective and strong arguments against that phase of the bill (old-age insurance). He questioned the constitutionality of the bill.
"These arguments I found rather difficult to refute," said Eliot, "and I'm glad I wasn't really called upon to do so as a witness before the committees of Congress because I had very grave doubts at that time about the likelihood of the Court's upholding the old-age insurance section of the bill."
Edwin E. Witte was executive director of Roosevelt's Committee on Economic Security. In 1955, he gave a speech to commemorate the 20th anniversary of the Social Security. "And at all stages there hung over the Social Security bill uncertainty as to its constitutionality," Witte said. "These doubts were increased during the pendency of this bill in Congress by the decision of the Supreme Court holding the Railroad Retirement Act to be unconstitutional."
"A majority of the members of the Senate Committee on Finance believed old-age insurance to be unconstitutional," said Witte, "and it is my belief that several voted for it in the expectation that it would be invalidated by the Supreme Court."
Why did the Railroad Retirement Act decision make people believe the Supreme Court would toss Social Security? Because it was a small-scale version of Social Security. It ordered all railroad workers into a compulsory government pension program funded by a payroll tax apportioned between them and their employers.
The Roosevelt administration argued that the Commerce Clause -- which gives Congress the power to "regulate commerce ... among the several states" -- gave the federal government the power to force railroad companies and workers to fund and participate in a federal retirement program.
The court slapped this down 6-3. Justice Owen J. Roberts -- the Anthony Kennedy of that era -- wrote the opinion. He was joined by Chief Justice Charles Evans Hughes, the other swing vote of that time.
Roberts clearly envisioned how the Railroad Retirement Act could open the door to a massive federal welfare state.
"If that question be answered in the affirmative, obviously there is no limit to the field of so-called regulation," wrote Roberts. "The catalogue of means and actions which might be imposed upon an employer in any business, tending to the satisfaction and comfort of his employees, seems endless. Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry."
Two years later, in 1937, the Social Security Act came before the same court. The Democrats and FDR had just won a massive election victory in November 1936. In his 1961 speech at the Social Security Administration, Thomas Eliot was asked: "Just what do you think caused the Supreme Court to reverse itself in its decision to declare the Act constitutional?"
"What happened in 1937 was that in February the president came out with a scheme to 'pack' the Court," said Eliot. "No one knows, and there is some dispute about it, but I think that probably it's fair to say that the Court was not unmindful of this attack."
"There were nine justices on the Supreme Court; one or two of them had to change their positions pretty fundamentally to thwart the threat of that number of nine being added to by six new justices appointed by the president," said Eliot. "The old saying about that particular change of front is that, 'A switch in time saved nine.'"
And significantly expanded the control the federal government has over the lives of individual Americans.
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