The “General Welfare Clause” – Part 3

Posted on December 27, 2012 by Old Marine

The Destruction of the Constitution

In 1933, a constitutional revolution began, there were not shots fired, no people killed, but a revolution just the same, the Constitution was amended, without the procedures as established in Article V. This amending came about through what Senator Thomas H. Benton of Missouri used to call “latitudinarian construction”. This form of construction had been applied to the general Welfare Clause and eventually the Commerce Clause. [1]

There are no other clauses in the Constitution, that have been so twisted by the Progressives that has been used in framing bills that would flout the Tenth Amendment, the great bulwark of the States.

It was inconceivable to Jefferson, as well as the other founding Father, that the peoples’ elected representatives in Congress could and would disregard not only our constitutional history, but the true purpose of the Constitution[2], as they allowed the States they represented be stripped of local authority by stealing their governing power through acts such as:

The Agricultural Adjustment Act of May 12, 1933 (AAA)
The Tennessee Valley Authority of May 18, 1933 (TVA)
The National Industrial Recovery Act of June 16, 1933 (NIRA)
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 (SSA)

It may be next to impossible for anyone to say which of the above seven Socialist Acts passed by Congress during the Roosevelt Revolution was the most far reaching in its threat to the Republic and States Rights. Although, the competition for the most evil maybe between the Tennessee Valley Authority, and the Social Security Act.

The idea of the Tennessee Valley Authority, which may seem today to have been a great success in the development of a valley(s) which is not a function of the government or the unconstitutional power projects which ensued, originated in the minds of Socialists, Fascists and political adventures [3] far from the valleys of Tennessee and the seven other states which it now encompasses. It was not only it the largest “eminent domain” takeover in America history, was in reality a failure in government, tending to destroy free enterprise, property rights, and the liberty which the Constitution was designed to protect and promote.

Many may feel after reading the history of the, most may believed that the Social Security Act would stand alone as a complete departure from the meaning of the General Welfare Clause as Madison, Hamilton and the others had explained and what the founding Fathers meant.

In 1935, when FDR signed the bill to “Alleviate the Hazards of Old Age, Unemployment, Illness and Dependency”, which established a Social Insurance Board in the Department of Labor, to “raise revenue”, and others purposes, he commented, “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.“[4] Thus with this final act, FDR’s “New Deal” was put into place and the destruction of the Constitution began, this destruction totally ignored and changed the meaning of the “Common Defence and General Welfare Clause”. BUT this destruction would not come without a fight.

The first battle ended in a victory for those seeking to prevent the over reaching by FDR’s Progressive big government when the Supreme Court (SCOTUS) unanimously overturned the National Recovery Act, which was an attempt to make structural changes in the industrial sector of the economy and to alleviate unemployment with a public works program, the pivotal program of his “New Deal”.

Later, another challenge to FDR’s “New Deal” was brought before the SCOTUS and again the Court dealt a blow for freedom and a disappointment to FDR. In United States v. Butler, the Court ruled that the Agricultural Adjustment Act, as unconstitutional.

Justice Owen Roberts writing for the Court, “…a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government [and] powers not granted are prohibited. None to regulate agricultural production is given, and therefore legislation by Congress for that purpose is forbidden.” Justice Roberts continued, “ It does not help to declare that local conditions throughout the nation have created a situation of national concern: for this is to say that whenever there is widespread similarity of local conditions, Congress may ignore constitutional limits on its own power and usurp those reserved to the states. [Such reasoning] would become the instrument for total subversion of the governmental powers reserved to the individual states.” [5]

With the ruling of the Court on the AAA and Justice Roberts’ language, many people at the time, including FDR, felt that the Court might rule the SSA as unconstitutional. This lead to FDR’s attempt to “stack” the courts by proposing legislation granting the President new powers to add additional judges to all Federal Courts whenever there were sitting Judges age 70 or older WHO refused to retire. Although FDR’s attempt to “stack” the courts failed, the Court did create a bridge from Constitutionalism to FDR’s vision of the Progressive (Socialist) Promised Land.

This bridge consisted of the difference that that had developed between Madisonand Hamiltonover the interpretation of the “permission” granted to the federal government to levy taxes and spend money to “provide for the general welfare.” Hamilton wrote in Report on Manufactures, December 5, 1791, that “the only qualification of the generality of the Phrase (General Welfare Clause…OM) in question, which seems to be admissible, is this—That the object to which an appropriation of money is to be General and not local; its operation extending in fact, or by possibility, through out the Union, and not being confined to a particular spot.” This view would become known as the as the Implied Powers doctrine [C] and was in complete disagreement with Madison and Jefferson’s view that the federal government could only extend money for the purposes enumerated in the Constitution or the Strict Construction doctrine (The current view of today’s TEA Party movement…OM). These two different views of would eventually come to battle at the SCOTUS.

The Three Cases that Changed the Constitution

During the October 1936 term of the SCOTUS, three cases were heard. One challenged the old-age insurance program (Helvering v.Davis) and two challenged the unemployment compensation program of the Social Security Act. The Court would issue rulings on all three on the same day.

The first, Helvering v.Davisdirectly brought the disagreement between Implied Powers (Hamilton) and Strict Construction (Madison & Jefferson) into the Court.

The attorneys for Davis, minor stockholder in Edison Electric Illuminating Company objected to the employer contribution to the SSA, argued that the payroll tax was a new type of tax not listed in the Constitution’s tally of taxes, and therefore it was unconstitutional. During the argument, the attorneys introduced the definitions of “taxes” from dictionaries in 1788 to prove how earnest they were in the belief that powers not explicitly granted in 1789 could not be created in 1935.Davis’ lawyers were also of the view that providing for the general welfare of the aged was a power reserved to the states. The government, Commissioner of the IRS, Helvering, who had intervened on Edison’s behalf, argued that this was too inflexible an interpretation of the powers granted to Congress, and (loosely) that if the country could not expand the interpretation of the Constitution as it stood in 1789 progress would be impossible and it would still be 1789.

The other two cases, Steward Machine Company & Carmichael vs. Southern Coal & Coke Co. and Gulf States Paper, both dealt with the validity of unemployment compensation provisions of the SSA.

In the Stewart Machine Company, after paying its first unemployment tax installment ($46.14), they sued the government to recover the payment, claiming that the SSA was unconstitutional. The attorneys for Steward made the same as points as in theDaviscase about the meaning of the word “tax,” and argued in addition that the unemployment compensation program could not qualify as “providing for the general welfare.”

Carmichael vs. Southern Coal & Coke Co. and Gulf States Paper, also was a case which disputed the validity of the unemployment compensation program. In this case the companies challenged the state portion of the federal/state arrangement. Both companies were unwilling to pay their share of state unemployment compensation taxes and the two companies sued the state of Alabama, declaring that it was the Social Security Act, which they deemed unconstitutional, that gave Alabama its authority to tax them in this way and since they believed the Act to be invalid, they did not have to pay the tax. Alabama differed.

The Supreme Court Rules, Ignoring Madison, Jefferson and Former Presidents

The SCOTUS handed down its decision in the three cases on May 24, 1937 with Justice Cardozo writing for the majority opinion in the first two cases.

Although the SCOTUS ignored the words of Madison, Jefferson, Wilson and even Hamilton as well as a number of former presidents, the Court sided with Hamilton’s later interpretation (considering what Hamilton had written in the Federalist) of the general welfare clause, Judge Cardozo made clear the Court’s view on the scope of the government’s spending authority: “There have been statesman in our history who have stood for other views. . .We will not resurrect the contest. It is now settled by decision. The conception of the spending power advocated by Hamilton . . .has prevailed over that of Madison. . .” Arguing that the unemployment compensation program provided for the general welfare, Cardozo observed: “. . .there is need to remind ourselves of facts as to the problem of unemployment that are now matters of common knowledge. . .the roll of the unemployed, itself formidable enough, was only a partial roll of the destitute or needy. The fact developed quickly that the states were unable to give the requisite relief. The problem had become national in area and dimensions. There was need of help from the nation if the people were not to starve. 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 [other] than the promotion of the general welfare.

He then extended the same reasoning to the old-age insurance program: “The purge of nation-wide 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. . . But the ill is all one or at least 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.

With these cases decided, Justice Stone could then dispose of the third case in short order. “Together the two statutes now before us embody a cooperative legislative effort by state and national governments, for carrying out a public purpose common to both, which neither could fully achieve without the cooperation of the other. The Constitution does not prohibit such cooperation.” [6]

Thus with these three rulings the Constitution was amended, and as Justice Roberts said in the AAA: “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 States.

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.”

Since 1937 with the SCOTUS upholding that the SSA was Constitutional, the Federal Government has continued to usurp the States rights, duties and responsibilities, and the danger is steadily increasing.


Despite the intense controversy the court-packing plan provoked, and the divided loyalties it produced even among the President’s supporters, the legislation appeared headed for passage, when the Court itself made a sudden shift that took the wind out of the President’s sails. In March 1937, in a pivotal case, Justice Roberts unexpectedly changed his allegiance from the conservatives to the liberals, shifting the balance on the Court from 5-4 against to 5-4 in favor of most New Deal legislation. In the March case Justice Roberts voted to uphold a minimum wage law inWashingtonstate just like the one he had earlier found to be unconstitutional inNew Yorkstate. Two weeks later he voted to uphold the National Labor Relations Act, and in May he voted to uphold the Social Security Act. This sudden change in the Court’s center of gravity meant that the pressure on the New Deal’s supporters lessened and they felt free to oppose the President’s plan. This sudden switch by Justice Roberts was forever after referred to as “the switch in time that saved nine.” [7]

[1] Norton, Thomas James, Undermining the Constitution
A History of Lawless Government, the Devin – Adair Co, New York, New York, 1950. Chapter 12, Pg 193
[2] Ibid. Pg. 193
[3] Ibid. Pg. 181
[4] Ibid. Pg. 181
[5] Niskanen, William, “Spending legacy of a 60-year-old ruling,” Washington Times, Tuesday January 30, 1996, pg. A19
[6] Constitutionality of the Social Security Act: Opinions of the Supreme Court of the United States, U.S. Senate Document No. 74, 1937, pgs. 32, 8, 33, 48. A good summary of the issues in these cases, and their broader context, can be found in Lopez, Eduard A., “Constitutional Background to the Social Security Act of 1935,” Social Security Bulletin, January 1987/Vol. 50, No. 1, pgs. 5-11.
[7] The other “switch in time” happened on the morning of May 18, 1937 when President Roosevelt, who was breakfasting in bed, received a messenger with a letter of resignation from Justice Van Devanter. This gave the President the opportunity to appoint another liberal Justice, further strengthening his hand. And when it became clear following the Social Security Act rulings that the Court had indeed shifted course, support for the court-packing plan turned to opposition and ultimately the plan was defeated (cf. Leuchtenburg, op. cit., pgs. 143-144.).

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