Magazine May 17, 2010, Issue

The Lawless Welfare State

It is unconstitutional, but the remedy will come from the people

Is the welfare state unconstitutional? On a proper understanding of the limited government created by our Constitution, the answer is yes. Does it follow that in opposing the present scope and future expansion of the welfare state, conservatives should turn to the courts for enforcement of the Constitution’s principles? Not necessarily. There are some constitutional norms that do not properly fall within the purview of the judiciary, but instead fall to us citizens to defend through the power of election. And this may be such a case.

The Declaration of Independence — the “father of all moral principle” in our politics, as Lincoln called it — defines the purpose of government in distinctly limited terms: “To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” The rights in question are the natural ones to life, liberty, and the pursuit of happiness. That the Declaration speaks of the pursuit of happiness rather than happiness itself as a right is an important indication of the Founders’ commitment to limited government. A government that is responsible for sustaining the conditions in which we can pursue happiness is a limited one. But it is difficult to say what the limits are on a government that is responsible for our happiness itself. To quote Lincoln again, the proper object of government is “to lift artificial weights from all shoulders; to clear the paths of laudable pursuit for all; to afford all an unfettered start and a fair chance in the race of life.” The “welfare state” means more. It means that government takes the “well-being” of each of us as its responsibility, not merely in regulating our relations with each other or in encouraging enterprise, but in redistributing the wealth of the country from some to others.

The redistributionist impulse of the Left has always gone against the grain of American individualism and the tradition of limited government. This is why Franklin Roosevelt had to sell Social Security in 1935 as a scheme of “social insurance” that would become “self-supporting” — albeit compulsory. The myth was that after an initial period of paying the first pensioners, we would take out only what we “contribute.” But the permanent fact of the system was the transfer of Peter’s money to Paul.

Whence comes the supposed constitutional authority to redistribute wealth in the name of “welfare” or “security”? The usual answer is the “general welfare” clause of the Constitution, in which Congress is granted power to use our tax dollars for the “general welfare of the United States.” From early in our history there were arguments about what sort of spending was truly for the general welfare. Treasury Secretary Alexander Hamilton, for instance, argued in 1791 that bounties paid to innovative new manufacturing concerns would qualify as spending for the general welfare. But Hamilton understood that the appropriations had to meet a standard of “extending . . . throughout the Union, and not being confined to a particular spot.” And for decades, Congress and various presidential administrations went back and forth on whether various “internal improvements” really constituted spending on the general welfare. Was this or that turnpike, canal, or harbor-dredging really of material benefit to the nation as a whole? Or was it just local pork barrel?

#page#One thing seemed certain: The arguments about what did and did not constitute spending on the general welfare — a full-on constitutional debate — took place in the Congress and the executive branch. As Hamilton noted, the question of the general welfare embraced “a vast variety of particulars, which are susceptible neither of specification nor of definition” beforehand, and therefore, he concluded, the matter was “of necessity left to the discretion” of Congress. Not until a century or more after the adoption of the Constitution did the question whether spending was for the general welfare come before the Supreme Court, and when it did (e.g., on railroad subsidies), the Court simply deferred to Congress.

The New Deal brought the issue back to life, but only to sputter for a moment. The blitz of tax-and-spend legislation in the 1930s prompted legal challenges claiming that Congress was reaching well beyond the general welfare. But in 1936, the Supreme Court endorsed the practice of deference to Congress, holding that judicial intervention would be appropriate only where there was “a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress.”

That would be a very hard test for Congress to fail. The following year, the Court decided two challenges to the Social Security Act, and gave them the back of its hand. First it upheld the new system of federal unemployment compensation. “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 promotion of the general welfare,” said Justice Benjamin Cardozo. Then it dealt with the “old-age pensions” in the act. Cardozo again: “The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.” And this was not the case here, he said: “Congress did not improvise a judgment when it found that the award of old age benefits would be conducive to the general welfare.” Why, there were reports galore from executive-branch inquiries and congressional hearings, all showing the plight of the poor elderly! And that was that.

What a great distance had been traveled from the early days of the Republic, when debates over the general welfare involved appropriations for spending on things, and whether those things were of significant value to the nation as a whole or only to a part. For the welfare state instead involves direct spending on people — and not in return for some service to the nation, as in the case of, say, veterans’ pensions. It is not desert, or compensation, that prompts the spending, but a means-tested need, or a mere entitlement — reaching the age that entitles one to Medicare, for instance — that suffices. This was the thinking at the heart of Franklin Roosevelt’s “Second Bill of Rights,” which pushed aside the negative rights of the Declaration and the Constitution to make room for a new set of positive rights — not, that is, rights against government, or even rights to have government clear obstacles from the path of individual enterprise, but rights to have a share of the material plenty that one’s fellow citizens have poured into the federal treasury. The question whether this new form of rights could coexist with the old, or would simply vanquish it instead, has plagued American politics ever since the New Deal.

#page#In its direct employment of transfer payments, the welfare state implicates another constitutional principle as well. At the heart of the Due Process clause of the Fifth Amendment (and the Fourteenth) is a basic rule-of-law principle: that we are to be governed only by laws, prospective in character, general in application, and concerning themselves with our conduct. Commands in the outward form of law that are retrospective in character, or apply only to particular persons, or concern themselves with who we are rather than what we have done or not done, are properly understood not as true laws but as decrees. The bill of attainder is the classic example: a “law” that simply identifies a victim of the state.

As Daniel Webster put it in an 1818 argument before the Supreme Court that was frequently quoted in the 19th century, “acts of confiscation, . . . acts directly transferring one man’s estate to another, legislative judgments, decrees and forfeitures” are not really the law of the land even though they issue from the legislature. And Webster was only summarizing what was then a received understanding. In 1798, Justice Samuel Chase had said that “a law that takes property from A. and gives it to B.” is “contrary to the great first principles of the social compact,” and thus we cannot really respect it as a law at all.

Of course, Chase and Webster understood perfectly well that the law can legitimately result in the transfer of A’s property to B. But this happens as the conclusion of an adjudication of some issue between them — such as tort or breach of contract. The transfer may be in cash or in particular belongings, by order of a court in accord with general rules of law. But a legislative decree that A’s property now belongs to B constitutes a failure of the general, impersonal rule of law; it takes a shortcut through the law, governing the particular case without a fair adjudication of any wrong on A’s part or injury on B’s part. This is virtually the definition of “arbitrary” — unexpected, unprincipled, and untested by any accepted rule of general application. It is also a legislative invasion of the judicial function of settling disputes between individuals under the rule of general laws.

But what is the transfer-payment bureaucracy of the welfare state if not a great Rube Goldberg machine for the accomplishment of such expropriations from A for B’s benefit, multiplied by many millions on a daily basis? What makes the welfare state such a large-scale engine of expropriation and transfer is that it does not rely on the traditional mode of the decree, moving property from some named individuals to others, or even from one named class to another. Instead it obeys the forms of law, relying on the power to tax from one and appropriate to the other. This enables a vast increase in the numbers of people deprived of their wealth, and of those provided with the wealth so obtained, now called welfare benefits. Yet while the arrangement has the outward form of law, the fact that tax dollars are spent directly on persons (again, with no consideration of value in return, or of past service now rewarded) rather than things, means that the substance of lawfulness is hollowed out by the welfare state. In effect, the state becomes a money launderer. What due process would not permit it to do on a case-by-case basis — decreeing that A’s money shall be directly shifted to B’s pocket — it does instead by gathering tax dollars into the treasury from A and then disbursing them to B, often in the undisguised indecency of a single statute accomplishing both steps, as in Social Security.

#page#In the 1937 case on Social Security’s old-age pensions (Helvering v. Davis), Justice Cardozo waved off the obvious wealth-transfer scheme, in which one title of the act imposed a tax and another spent the revenues on pensions. He pointed out “that the tax moneys are not earmarked, and that Congress is at liberty to spend them as it will.” It was mere coincidence that the pension provisions of the act describe the other side of a complete transaction, and that “the two titles dovetail in such a way” as to present the appearance of a single scheme to redistribute wealth.

Yet the proper remedy may not be judicial. The taxing power of Congress is large and fairly comprehensive, and the taxes in themselves cannot properly be voided on constitutional grounds simply because of the way the funds in the Treasury are subsequently appropriated — any more than my legal earnings can be declared illegal because of choices I make in how to spend my money, even if my sole motivation in working to earn my income is to spend it illicitly. When the welfare state takes from Peter to pay Paul, “everyone knows” that the two actions are linked — but what “everyone knows” is not sufficient to establish a case on which a court can act under the Constitution. Unfortunately, the money laundering of the welfare state effectively avoids the due-process problem of transferring property from A to B.

So we fall back on the question of the proper limits of the “general welfare” clause. But if there is one thing that would be worse than trusting Congress to judge for itself which expenditures are for the general welfare, it is trusting the Supreme Court instead. The judgments required appear to be emphatically political ones — matters of discretion and prudence regarding the purposes that a limited government may rightfully pursue, rather than questions of particular individual rights, injuries, and remedies that courts can readily adjudicate under neutral principles. This is not to say that real constitutional principles are not at stake. They are. But the Constitution contains some principles properly confided to judges, and others properly confided to elected officials and the voters to whom they answer. Here we seem to have the latter.

As James Madison said in The Federalist, the Constitution’s meaning would have to be “liquidated and ascertained by a series of particular discussions and adjudications.” This would be the work of all the branches of government, and of the people themselves. What cannot be adjudicated must be discussed — in the two houses of Congress, in the executive branch, on the hustings, and at the kitchen table — for the Constitution belongs to us, not the judges.

With Obamacare now the law of the land, a massive expansion of the welfare state is upon us. We who know it for what it is — an unconstitutional excrescence on our tradition of limited government — are understandably impelled to try every avenue of redress, judicial as well as political. But we should beware of having too much faith in judges. And we should never confuse what judges will tolerate — for good reasons as well as bad ones — with what the Constitution requires us to accept as legitimate.

–Mr. Franck is professor and chairman of political science at Radford University, and a blogger at National Review Onlines Bench Memos.

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