BY THE SOCIAL SECURITY ACT OF AUGUST, 1933, FOLLOWING THE NATIONAL LABOR
RELATIONS ACT OF JUNE, THE REPRESENTATIVES OF THE PEOPLE IN CONGRESS STRIPPED
THEIR STATES ALMOST ENTIRELY OF POLICE AUTHORITY
It is difficult to tell which of the half score of
Socialistic acts of Congress of the Roosevelt Revolution was the most
far-reaching in its threat to the Republic. But the competition for evil lies
between the Fascist Tennessee Valley Authority of May 18, 1933, and the Social
Security Act of August 14, 1935.
When President Roosevelt signed A Bill to Alleviate the Hazards of Old Age,
Unemployment, Illness, and Dependency, to Establish a Social Insurance Board in
the Department of Labor, to Raise Revenue, and for Other Purposes, he made this
"If the Senate and House of Representatives in this long and arduous
session had done nothing more than pass this bill, the session would be
regarded as historic for all time."
Most complete abandonment of constitutional principle
It will certainly stand apart forever as a complete departure from the
Constitution as expounded by its writers, notably Madison, afterward President,
and James Wilson, later a Justice of the Supreme Court of the United States; by
President Monroe in a celebrated veto message of a bill for "public
improvements," the beginning of the most wasteful of all squanderings by
Congress of the money of the taxpayers; by President Jackson, who vetoed every
appropriation bill not clearly for national, as distinguished from
personal, welfare; by Presidents Tyler, Polk, Pierce, Grant, Arthur, and
The "hazards of old age, unemployment, illness and dependency" are
subjects (if of any government) for the police power of the States, which has
been defined as having to do with "the health, morals, safety, education,
and general well-being of the people."
"The Federal Constitution forms a happy combination in this
respect," wrote Madison in No. 10 of The Federalist; "the
great and aggregate interests being referred to the National, the local and
particular to the State legislatures."
No police power was granted by the people through the Constitution to
And "Congress is not empowered," wrote Chief Justice Marshall in
1824 (9 Wheaton 1), "to tax for those purposes which are in the exclusive
province of the States."
States cannot abdicate their police power
It was held by the Supreme Court (219 U. S. 270,282) as late as January,
1911, that the police power inhering in the States cannot be surrendered by
There is no stronger principle of American constitutional law than that
forbidding the delegation of power. For a decade and a half the Newspaper has
told us of powers granted by Congress to the President. It has no powers that
it can grant or give away. The reports by the Newspaper were constitutionally
nonsensical. Yet they affected the public mind, untaught in the Constitution,
to accept as valid the abdication — not the delegation or grant — of
powers by what came to be known as "a rubber-stamp Congress."
Abdication of constitutional duties by Congress
Congress permitted the President and his nonelected advisers to write bills,
as George III sent bills to Parliament against the American Colonies, and
Congress passed them. But that was abdication of power by Congress, not
delegation or grant.
So, too, the States cannot part with their powers or any portion of them.
Their power of police, especially, over the welfare of the people they cannot
surrender, as the decision of the Supreme Court just before cited shows.
Therefore, the rush of the States, like children in the street to whom a
handful of coins has been thrown, to enact compliant legislation in order to
get "gifts" of their own money from Washington under A Bill to
Alleviate the Hazards of Old Age, Unemployment, Illness, and Dependency, to
Establish a Social Insurance Board in the Department of Labor, to Raise
Revenue, and for Other Purposes, was an unconstitutional abdication by the
States of their obligations to the people. The liberties of the people were
On the police power resident in the States, Judge Cooley, recognized half a
century ago as the leading constitutionalist of his time, had this to say in
volume 2 of the 8th edition of Constitutional Limitations, page 1232:
"In the American constitutional system the power to establish the
ordinary regulations of police has been left to the individual States, and it
cannot be taken from them, either wholly or in part, and exercised under
legislation by Congress."
States and Congress join in unconstitutional action
Yet that is exactly what was brought to pass by a usurping Congress and
abdicating States when the scheme for social security through Washington was
On the same page Judge Cooley said further:
"Neither can the National Government, through any of its Departments,
or offices, assume any supervision of the police regulations of the
When, in September, 1787, the Constitutional Convention sent the new
Fundamental Law to the States for ratification, only one of them was opposed to
it from the start — or before the start. New York convoked a convention
headed by Governor Clinton which was three fourths against the proposed form of
government. Some able men in other States were not wholly satisfied with the
Constitution. The objections which they expressed in the ratifying conventions
resulted in a Bill of Bights in addition to the limitations on power amounting
to a Bill of Rights written in the original Instrument. Several delegates to
the Constitutional Convention went home without signing the new form of
Government. Alexander Hamilton was the only signer for New York.
Elbridge Gerry of Massachusetts, one of the ablest men in the Convention,
did not sign. Edmund Randolph of Virginia and George Mason of Virginia, the
author of The Virginia Bill of Rights, did not sign. Nor did William Houstoun
Most important of original objections to Constitution
The commonest and strongest objection was that the identity and sovereignty
of the States were not sufficiently guarded. It was this objection that brought
out the Tenth Amendment, to prevent Congress from invading the States.
In the convention in New York the point here under discussion was most
strongly urged, namely, that the General Welfare Clause gave to Congress powers
without limit. The States would eventually be swallowed by the central
Government, which properly could deal only with subjects strictly national and
Yet the Housing Act of 1937 declared the policy of Congress to be to provide
for the general welfare of the Nation by employing its funds and credit to
assist the States to relieve unemployment and to safeguard health, and for
other like purposes. In 1945 the Supreme Court, in an opinion by Justice
Roberts (none dissenting), held (323 U. S. 329) that legislation
Thus the objection which chiefly evoked the Bill of Rights, and especially
the Tenth Amendment, went for naught.
And in 1941 the Court, in an opinion by Chief Justice Stone (none
dissenting), held (312 U. S. 100) that under the Fair Labor Standards Act of
Congress of 1938 the Nation can exercise police power in the States! That
overruled a great decision (247 U. S. 251), rendered in 1918, that Congress is
prevented by the Tenth Amendment from regulating labor conditions in the
The first and most important grant of power
The very first grant of power is this:
"Congress shall have power to lay and collect Taxes, Duties, Imposts
and Excises to pay the Debts and provide for the common Defence and general
Welfare of the United States."
In the convention in New York it was argued that the power to tax and spend
for "the general Welfare of the United States" was a grant without
limitation at all. That was answered by James Madison, the reporter of the
Constitutional Convention, from whose notes day by day we get most of our
knowledge of the course of deliberations. In the history of governments and in
general fitness for his task he was second to no other man in the Convention.
Madison, along with Hamilton and Jay, was writing a series of 85 papers
explanatory of the Constitution and addressed "to the people of the State
of New York" to convince them that their objecting convention should
ratify the new form of government. Those papers became known as The
Federalist, the most brilliant work on our Constitution. They have been
translated into French, German, Spanish, and Portuguese.
Objections of States cleared away by Madison
Of the argument in New York, which was made in other States too, that power
in Congress for "the general Welfare" was authority to do its will
throughout the land, Madison wrote, evidently in anger:
"No stronger proof could be given of the distress under which these
writers labor for objections than their stooping to such a
By "stooping" Madison plainly meant that they knew better and were
unfair in their opposition to the General Welfare Clause of the Constitution.
Then he proceeded to explain the language under the established rules of
interpretation. Had no other enumeration of powers been made than for taxing
and spending, he said, then there might be some color to the objection that
Congress would be without restraint — though that would be an
"awkward way of describing an authority to legislate in all possible
"But what color can the objection have," he asked, "when the
specification of the objects alluded to by these general terms immediately
follows, and is not even separated by a longer pause than a semi-colon?"
Limitation on power of Congress to spend
That is, the grant of power to tax and spend for the "common Defence
and general Welfare" is followed in the same sentence by all the other
grants — to borrow money, to regulate commerce, and so on. The first grant
of all — to tax and spend — is inseparable in the context from all
the other grants.
The power to tax and spend was granted to effectuate all of the seventeen
succeeding paragraphs of clauses as well as the one in which it appears.
Madison met this question again in the very first Congress of the new
Government, in which he was a member of the House of Representatives, and where
he assembled and formulated twelve of the leading objections to the
Constitution that came in from the ratifying conventions in the States for
submission as amendments, ten of which were ratified and became known as the
Bill of Rights.
First appearance of the "Subsidy"
A bill was introduced by a member from New England to pay a bounty to cod
fishermen, to subsidize a private interest, as agriculture and many more
private interests have been subsidized by the "New Deal." He spoke at
length with great vigor against the bill. Stating that those who wrote the
Constitution and those who ratified it conceived it to be not an indefinite
Government, but a limited one, "tied down to the specified powers, which
explain and define the general terms," he added:
"If Congress can employ money indefinitely to the general welfare, and
are the sole and supreme judges of the general welfare, they may take the care
of religion into their own hands; they may appoint teachers in every State,
county and parish and pay them out of their public treasury; they may take into
their own hands the education of children, establishing in like manner schools
throughout the Union; they may assume the provision of the poor. . . . Were the
power of Congress to be established in the latitude contended for, it would
subvert the very foundations, and transmute the very nature of the limited
Government established by the people of America."
The consequences of the misapplication by Congress of the money of the
taxpayers — a scourge of mounting debt and cumulative deficits —
establish Madison as a major prophet.
Hamilton, as well as Madison, rejected the contention strongly urged against
the Constitution, that it left the National Government with unlimited power to
do its will, and in No. 83 of The Federalist he said (italics his):
"The plan of the Convention declares that the power of Congress, or, in
other words, of the National Legislature, shall extend to certain
enumerated cases. This specification of particulars evidently excluded all
pretension to a general legislative authority, because an affirmative grant of
special powers would be absurd, as well as useless, if a general authority was
Article I, Section 8 sets boundaries to constitutional power
There is no power in Congress beyond the boundaries of those eighteen
paragraphs of clauses.
Certainly James Madison and Alexander Hamilton should have known what the
purpose of the Constitutional Convention was. New York, by ratifying the new
form of government, accepted what they said. Other States doubtless ratified on
Abraham Baldwin of Georgia, a member of the Constitutional Convention, said
in Congress in 1798 that "to provide for the common Defence and general
Welfare" had "never been considered as a source of legislative power,
as it is only a member introduced to limit the other parts of the
sentence." That is, it limits the purposes for which Congress can
"lay and collect taxes" and exert its other granted powers.
The legal scholar of the Convention speaks
But there was another man in the Constitutional Convention, the ablest
lawyer, as Madison was the ablest historian — James Wilson, a scholar from
Edinburgh and from one of the Temples in London, who explained the taxing and
spending power in a course of lectures to what afterwards became the University
of Pennsylvania, as Madison had done. He said in part:
"The National Government was intended to promote the 'general Welfare.'
For this reason Congress have power to regulate commerce . . . and to promote
the progress of science and of useful arts by securing for a time to authors
and inventors an exclusive right to their compositions and discoveries."
In this way he proceeded from the Patent and Copyright Clause to explain all
the other clauses in section 8 granting power. He made it very clear that
Congress was to "provide for the common Defence and general Welfare"
by exerting the powers granted to it in the seventeen paragraphs following the
first, by which it was authorized "to lay and collect taxes."
Thus, three members of the Constitutional Convention have spoken on this
point — Madison, Baldwin, and Wilson — and none of them thought that
the General Welfare Clause, which has been construed as a limitation on the
activities of Congress rather than a grant of power, authorized the Legislative
Department to get into anything even remotely resembling a Quixotic adventure
"To Alleviate the Hazards of Old Age, Unemployment, Illness, and
Dependency, to Establish a Social Security Insurance Board in the Department of
Labor, to Raise Revenue, and for Other Purposes."
General Welfare brilliantly defined by Jefferson
Although Jefferson was in Paris while the Constitutional Convention was
sitting, he was in close communication with Madison and other delegates. He
knew the Constitution. In a profoundly able letter to Albert Gallatin in 1817
he discussed the General Welfare Clause on which the Social Security Act was
based (italics inserted):
"You will have learned that an act for internal improvement, after
passing both Houses, was negatived by the President. The act was founded,
avowedly, on the principle that the phrase in the Constitution which authorizes
Congress 'to lay taxes, to pay the debts and provide for the general welfare,'
was an extension of the powers specifically enumerated to
whatever would promote the general welfare; and this, you know, was the Federal
doctrine. Whereas our tenet ever was, and, indeed, it is almost the only
landmark which now divides the Federalists and the Republicans, that Congress
had not unlimited powers to provide for the general welfare, but was
restrained to those specifically enumerated; and that, as it was never
meant that they should provide for that welfare but by the exercise of the
enumerated powers, so it could not have meant that they should raise
money for purposes which the enumeration did not place under their
action; consequently, that the specification of powers is a
limitation on the purposes for which they may raise money.
"I think the passage and rejection of this bill a fortunate incident.
Every State will certainly concede the power; and this will be a national
confirmation of the grounds of appeal to them, and will settle forever the
meaning of this phrase, which, by a mere grammatical quibble, has countenanced
the General Government in a claim of universal power. For in the phrase
'to lay taxes, to pay the debts and provide for the general welfare,' it is a
mere question of syntax, whether the two last infinitives are governed by the
first, or are distinct and co-ordinate powers; a question unequivocally decided
by the exact definition of powers immediately following."
That early interpretation should have been conclusive
That exposition by Jefferson, applied to a practical case in legislation, is
perhaps the most illuminating that has been made.
Six years later, Jefferson returned to the subject (italics inserted):
"I have been blamed for saying that a prevalence of the doctrine of
consolidation would one day call for reformation or revolution. I answer by
asking if a single State of the Union would have agreed to the Constitution had
it given all powers to the General Government? If the whole opposition to it
did not proceed from the jealousy and fear of every State of being
subjected to the other States in matters merely its own? And if there is any
reason to believe the States more disposed now than then to acquiesce in this
general surrender of all their rights and powers to a consolidated government,
one and undivided?"
Jefferson's reasoning applied to present-day legislation
That is to say, it was inconceivable to Jefferson that the representatives
of the people in Congress could ever so far disregard our constitutional
history and purpose as to strip their States of local authority by abdicating
their police power through such acts as these:
| The Agricultural Adjustment Act
|| of May 12, 1933
| The Tennessee Valley Authority
|| of May 18, 1933
| The National Industrial Recovery Act
|| of June 16, 1933
| The Federal Surplus Commodities Corporation
|| of October, 1933
| The Bituminous Coal Act
|| of May, 1935
| The National Labor Relations Act
|| of July, 1935
| The Social Security Act
|| of August, 1935
Not a State would have ratified the Constitution, Jefferson declared, had it
thought such a "revolution" possible.
We have suffered a constitutional revolution without use of amendments in
accordance with Article V. That has come about through what Senator Thomas H.
Benton of Missouri used to call "latitudinarian construction." That
form of construction has been applied to the Commerce Clause and the General
Welfare Clause. No other clause in the Constitution, even with the gross
twisting which the ardent "progressists" employ, could be used by
them in the framing of a bill for flouting the Tenth Amendment, the great
bulwark of the States.
Did President Cleveland foresee present-day unconstitutionalism?
In 1888, President Cleveland, evidently noticing the tendency of
representatives of the States in the Congress of the Union to favor measures
for degrading their commonwealths, gave them in his fourth annual message this
lesson in constitutional law:
"The preservation of the partitions between the proper subjects of
Federal and local care and regulation is of such importance under the
Constitution, which is the law of our very existence, that no consideration of
expediency or sentiment should tempt us to enter upon doubtful ground.
"We have undertaken to discover and proclaim the richest blessings of a
free Government, with the Constitution as our guide. Let us follow the way it
points out — it will not mislead us."
In the next year President Cleveland vetoed a bill appropriating money from
the National Treasury for the purchase of seed wheat to relieve the farmers
in a drought-stricken area. In that message he defined the meaning of the
General Welfare Clause as Madison and the others hereinbefore quoted
interpreted it (italics inserted):
"Under the limited and delegated authority conferred by the
Constitution upon the General Government the statement of the purposes for
which money may be lawfully raised by taxation in any form declares also the
limits of the objects for which it may be expended. . . . This 'general
welfare of the United States,' as used in the Constitution, can only justify
appropriations for national objects and for purposes which have to do
with the prosperity, the growth, the honor, or the peace and dignity of the
What would Mr. Cleveland think could he know that the Federal Government now
subsidizes the farmer, pensions everybody, and plans to medicate and
hospitalize the whole population? And no amendment to the Constitution
authorized the change!
Supreme Court ignored history and learning on General Welfare
Notwithstanding all that members of the Constitutional Convention had
written in explanation of the General Welfare Clause, which they had drafted
with the care that marked every line of the Constitution, the Supreme Court of
the United States, on May 24, 1937, three months after the President had
attacked the Judiciary as inefficient and obstructive and asked Congress to
recast it to his liking, in an opinion (301 U. S. 548) by Justice Cardozo, with
dissents by Justices Sutherland, Van Devanter, McReynolds, and Butler, used
"It is too late today for the argument to be heard with tolerance that
in a crisis so extreme the use of the moneys of the Nation to relieve the
unemployed and their dependents is a use for any purpose narrower than the
pro-motion of the General Welfare."
That expressed the popular notion of the party in power, that a
"crisis," or an "emergency," or an "extraordinary
emergency," such as the President
was given to declaring as difficulties unfolded, and as Congress had declared
in the National Industrial Recovery Act and its companion pieces, confers on
Congress powers which the Constitution did not and which it therefore withheld.
The Constitution withheld more powers from Congress than it granted. Besides
that precaution, the Tenth Amendment was added to warn Congress not to
"grab" power in any circumstances whatsoever, especially against the
Two fundamental errors in decision of Supreme Court
In the opinion by Justice Cardozo it is assumed that because
Washington could give relief it had the power to do so. It points out
that for a given time Washington gave emergency relief to the amount of
$2,929,307,366, while the States expended only $689,291,802 and local
But official figures assembled by the United States News for June 18, 1938,
showed that for five years the people of the States had paid to the National
Government in taxes $20,411,847,208 and received in "benefits" from
their own money $18,267,527,000.
They gave to Washington more than 2 billion over what was returned to them.
Those figures are absolute disproof of the statement of the Court, that
"the fact developed quickly that the States were unable to give the
But even had the States been unable to give relief, that fact would not have
conferred power on Congress to take over police jurisdiction in the States,
which the Constitution had not granted.
Instead of the first American coup d'état, which was executed
by the Federal Emergency Relief Act of May 12, 1933, Congress should have
repealed the Income Tax Law and the Estate Tax Law, by which it had been
draining the States of their resources, and let the States, in close contact
with the needy, go ahead and perform their police duties of relief. It chose
Rapid spread of the evil of subsidies
"Federal aid" to States for relief, for schools, and for what you
will has grown worse and worse. In a report by the floor leader of the House of
Representatives on January 8,1950, to the Ways and Means Committee it was shown
that for the fiscal year ending June 30,1949, the people of the States paid in
Federal taxes $41,864,542,295, while they got back in "aid" from
their own money $5,551,054,046.
As Just before stated, for the five years ending June 30, 1938, the
States paid in Federal taxes $20,411,347,208, or less than one half of what
they paid in the last one year. That is what may be described as
"going some." The "grants in aid" for the five-year term
averaged 3 billion, 653 million, while for the last one year they were 5
billion, 551 million — and all unconstitutional.
Arkansas, Mississippi, and New Mexico are the only States that got back
anything near to half what they had paid.
The situation is fantastic, for it has often been shown in Congress that
there is not a State in the Union that is not in a stronger financial position
than the National Government. The States need no "aid" from
Washington — except for political purposes. That's what is going on,
reminding of the "bread and circuses" which the politicians provided
for the populace of sinking Rome.
Finally, on the decision in the Social Security case, it was based not only
on the erroneous assumption of the inability of the States to perform their
duties in giving relief, but also on what Justice Cardozo termed "a
cyclical depression." To be sure, permanent legislation is not justified
by a cyclical depression.
Constitutionality of Social Security Act not for Supreme Court
In the light of the reading of "general Welfare of the United
States" which was given by Madison and other members of the Constitutional
Convention, and by Jefferson, who was in constant communication with members
while the Convention was sitting, and by several Presidents, it was not for the
Executive Department, the Legislative Department, or the Judicial Department,
or all of them together, to give the words a different meaning.
As in 1895 the Supreme Court, refusing to strike out a limitation in the
Constitution on taxation, referred the proponents of the Income Tax Law of 1894
to the Ultimate Power, to the people as the only Constitution makers, to write
an amendment if they should deem that expedient, so in the Social Security case
the Supreme Court should have held the act of Congress unconstitutional and
referred the "planners" and their project to the people for
disposition. Then a proposal to let Congress "into a boundless field of
power no longer susceptible of any definition" would have brought the
answer from those who alone had it.
That course would have been what Justice Brandeis called "procedural
regularity," which he said must always be followed in resolving
Where authority over welfare resides
It is within the police power of the State to protect the farsighted, the
frugal, and the temperate from the tax burden of caring for the indifferent,
the unthrifty, the profligate, and the handicapped when they become unable to
care for themselves. It may require persons not voluntarily carrying insurance
in standard companies to do so, if they cannot show resources making insurance
unnecessary. And it can compel employers of such persons to make payroll
deductions for the payment of insurance premiums through the working years of
The United States has no constitutional interest in this subject.
This discussion may well be closed by a quotation from a sound decision of
the Supreme Court on January 6, 1936, holding the Agricultural Adjustment Act
unconstitutional as not authorized by the General Welfare Clause. Later, on May
24, 1937, the Court, as seen, sustained the Social Security Act as within the
General Welfare Clause — on two erroneous conceptions: (1) that the States
could not care for the people in need (which would not confer authority on
Congress), and (2) that "a cyclical depression" gave power to
Congress to take control forever.
An admirable view of history
In the Agricultural Adjustment case the Court, speaking through Justice
"Until recently no suggestion of the existence of any such power in the
Federal Government has been advanced. The expressions of the Framers of the
Constitution, the decisions of this Court interpreting that Instrument, and the
writings of great commentators will be searched in vain for any suggestion that
there exists in the Clause [General Welfare] under discussion, or elsewhere in
the Constitution, the authority whereby every provision and every fair
implication of that Instrument may be subverted, the independence of the
individual States obliterated, and the United States converted into a central
Government exercising uncontrolled police powers in every State of the Union,
superseding all local control or regulation of affairs or concerns of the
"Hamilton himself, the leading advocate of broad interpretation of the
power to tax and appropriate for the general welfare, never suggested that any
power granted by the Constitution could be used for the destruction of local
self-government in the States, Story countenances no such doctrine. It never
seems to have occurred to them, or to those who have agreed with them, that the
general welfare of the United States (which has aptly been termed "an
indestructible Union, composed of indestructible States") might be wrecked
by obliterating the constitutional members of the Union."
Justices Stone, Brandeis, and Cardozo dissented.
That decision shows the ground we have since abandoned, with Congress
"in a boundless field of power, no longer susceptible of any
1. While the Social Security Act gathers money from the
employer and the employee, it provides that money so collected shall go into
the funds of the United States and that bonds shall be issued against it. Of
course, it is the taxpayers who must eventually redeem such bonds.
2. The field of the President's authority is very limited.
It does not include the States, to say nothing of the external world. In No. 75
of The Federalist Madison pointed that out:
"The execution of the laws and the employment of the common strength,
either for this purpose or for the common defence, seems to comprise all the
functions of the Executive Magistrate."
3. A vigilant reporter for the United Press discovered that
the king of the Hoboes was visiting a friend in Pittsburgh and he interviewed
His Highness for the edification of the country. The King, who has made several
trips around the world, has concluded that modern travel is attended by too
many risks, and he has therefore concluded to become a lobbyist for
"Federal aid" to young men possessed by the urge to wander. He
believes that all such young men should have each year a vacation of two weeks
at the expense of the Government. "Then they could travel safely and in
style," he said.
Is that any more absurd than that the wealthy State of Kansas, which, up to
an act for pensions to its sons who served in World War I, had no debt at all,
should receive "Federal aid" in 1950 for the benefit of its needy in
the amount of $18,000,000? The supervisor of welfare reported that fact in
Kansas does not differ from the other states. Degeneracy is general. To them
the Constitution is a dead letter.
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