Texas Gov. Rick Perry put his foot, cowboy boot and all, in his mouth when he declared Social Security to be an unconstitutional Ponzi scheme. Unconstitutional? Social Security has been the law of the land since 1937. It was validated by several of the country’s finest legal minds. If there is ever a high court hall of fame it would include justices in the 7-2 majority who upheld the constitutionality of the Social Security Act of 1935. Among them were Charles Evans Hughes, Owen Roberts, Louis Brandeis, Benjamin Cardozo and Harlan Fiske Stone.
Justice Cardozo’s opinion for the court’s majority rested heavily on the authority of Congress, under the Constitution, to spend money “in aid of the general welfare.” The discretion to finance the general welfare, wrote Cardozo in the case before the court, “belongs to Congress.” Why not the states? “The problem [of old age assistance] is plainly national in area and dimension,” he declared. “Moreover, laws of the separate states cannot deal with it effectively…. Apart from the failure of resources, states and local governments are at times reluctant to increase so heavily the burden of taxation to be borne by their residents for fear of placing themselves in a position of economic disadvantage as compared with neighbors or competitors…A system of old age pensions has special dangers of its own, if put in force in one state and rejected in another. The existence of such a system is a bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose. Only a power that is national can serve the interests of all.”
Earlier in the ruling the court had declared, “The purge of nationwide calamity that began in 1929 has taught us many lessons….Spreading from state to state, unemployment is an ill not particular but general, which may be checked, if Congress so determines, by the resources of the Nation….The ill is … not greatly different, whether men are thrown out of work because there is no longer work to do or because the disabilities of age make them incapable of doing it. Rescue becomes necessary irrespective of the cause. The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey‘s end is near.”
And in language aimed at the Rick Perrys of their day, the court declared, “Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago, may be interwoven in our day with the well-being of the Nation. What is critical or urgent changes with the times.”
That in a nutshell is why Congress enacted the system of old-age assistance known as Social Security and why the Supreme Court concluded it to be constitutional. All of which seems to be anathema, if not news, to Rick Perry.
During a recent interview with Andrew Romano of Newsweek he declared: “I don’t think our founding fathers when they were putting the term ‘general welfare’ in there were thinking about a federally operated program of pensions nor a federally operated program of health care. What they clearly said was that those were issues that the states need to address. I stand very clear on that. From my perspective, the states could substantially better operate those programs if that’s what those states decided to do.
Q: “So in your view those things fall outside of general welfare. But what falls inside it? What did the Founders mean by ‘general welfare?’
Perry: “I don’t know if I’m going to sit here and parse down to what the Founding Fathers thought general welfare meant.”
Q: “But you just said you thought they didn’t mean by general welfare. So isn’t it fair to ask what they did mean? It’s in the Constitution.”
By not responding, Perry’s foot at least wedged no deeper in his throat. His talk about unconstitutionality shows him to be blissfully unaware that his objections to Social Security were addressed squarely by the high court decades ago and answered effectively.