Is It Constitutional? Social Security

The idea of social security sounds nice, right? The government provides you with retirement funds once you reach a certain age. Social security is a popular federal government law, one that people on both the right and the left now want.

Is this not government’s job?

Ah, that’s the question, right… is it government’s job? is it government’s job to provide retirement funds to the elderly in the country, or provide unemployment benefits to the jobless?

This is why it is critically important that Americans have a clear answer to the first, foundational question…why do we need government in the first place?

What Is Social Security?

The Social Security Act (Act of August 14, 1935) [H. R. 7260]

“An act to provide for the general welfare by establishing a system of Federal old-age benefits, and by enabling the several States to make more adequate provision for aged persons, blind persons, dependent and crippled children, maternal and child welfare, public health, and the administration of their unemployment compensation laws; to establish a Social Security Board; to raise revenue; and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled…”

This is the introduction to the Social Security Act introduced in 1935, during a crisis.

Put simply, social security is mandatory contributions by American workers to the federal government via taxation of income. If you work, you are forced to contribute a portion of your income to a pool of government money that is then distributed to those eligible for the money. Eligibility depends on age, health, unemployment status and the like. We think of it this way: when you retire, if you have paid social security taxes, you will receive social security wages from the government. Just to be clear, this act also includes provisions for unemployment wages.

In 2020, 65 million Americans will receive over one trillion dollars in social security payouts. For more detailed information, go to this link.

What Does the Constitution Say?

So, the answer to this is rather simple. There is nothing in the Constitution’s enumerated Congressional powers that gives Congress the right or the ability to forcibly require Americans to save their own money for later payout. If you think about social security logically, and in the context of private property, social security is essentially government forcing Americans to save their own money by mandating that Americans must give a portion of their income to the federal government to save it for them.

It’s really as simple as that. Nowhere in the Constitution is Congress given the right to take your hard earned money and force you to save it. In fact, the Constitution is set up to prevent Congress from ever violating a person’s individual and private property, such as their own personal income…even if violating the private property could be justified by “the common good.”

What Do the Courts Say?

Social security, initially passed in 1935 did receive pushback. Many citizens and government officials questioned its constitutionality because there is no enumerated power to justify the power used by government in the Social Security Act. Others argued that the Social Security Act violated the Tenth Amendment, which as we’ve learned, is a redundant amendment restating that the Constitution gives limited and enumerated powers to the federal government, with the rest of those powers being left to the states.

The Supreme Court justified Congressional power and the Social Security Act multiple times through multiple cases and disputes, specifically: Helvering vs Davis (1937), Carmichael vs. Southern Coal & Coke Co. and Gulf States Paper, The Steward Machine Company. (If you want to learn more details about these cases, click here.) Each of these companies and individuals disputed the Social Security Act using the arguments I listed above, claiming the the act was unconstitutional and therefore invalid.

Remember, it’s always in a time of crisis that government power grows, usually because the people demand for more government. Read this article about emergency powers for a reminder.

The following quote from the Social Security Administration explains the justification from one of the prominent Justices on the Court during the debates surrounding the Social Security Act.

“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’.”

The courts used the “general welfare” clause—from the introduction of the Constitution—to support the unconstitutional behavior of Congress in the Social Security Act. The courts had to have something Constitutional to fall back on since there was little else they could find in the Constitution to support such extreme government growth.

This “general welfare” phrase is the most abused and taken out of context, usually to justify gross overstepping of federal power. The new Constitution and the new federal government were meant to be for the good of the people. This comes from John Locke who stated that laws ought to be designed for no other end, ultimately, but the good of the people. Naturally, the point of government, based on Locke’s theory and the theories of the American founders, is to protect the private property of the people and promote their good. It would be foolish to think otherwise.

This means that the “general welfare” phrase is not a phrase meant to define the powers of the federal government but rather to define the reasons for creating a stronger federal government confined by a Constitution with the goal of creating laws that are for the good of the people—-within the confines of the powers the Constitution stipulated.

I’ll let Madison explain his take on the “general welfare phrase” himself: “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents. With respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” For a more detailed analysis of the Preamble, please read The Constitution for Dummies: The Preamble.

How Has This Changed America?

Alas, the Social Security Act was passed and all attempts to declare it unconstitutional squelched. Today, social security is so ingrained in the fabric of our society and government, there really is no way out. And the ramifications of such government power have been broad and damaging. Allowing the government the power to provide financial support for the citizenry changed the citizenry’s ideological expectations of government. As Americans, we now expect government to provide for us—ironically by taking from us what we use to provide for ourselves.

Americans now also save 50% less than they did before social security. Academics argue about the direct causality of this change in saving (in other words, did the introduction of social security directly cause a decrease in American’s personal savings?) but there is certainly a correlation and a logical connection. If you want to read more for yourself about this, read Social Security and Private Saving or The Effect of Social Security on Saving.


Government loves power. This is because people love power and government is made up of people with power. Further, the courts have now essentially become the Constitution; therefore, what the courts say is now more powerful than what the Constitution itself says. And we the people know so little about the Constitution that we’ve been unable to keep the government and the courts accountable to the Constitution.

The American people are now slaves to the government because we are hooked on the government’s funds, as if we are unable to live, save or provide for ourselves without government payouts. This is what unconstitutional power does; it diminishes the people’s power while increasing government’s.

The following anonymous quote sums up social security quite beautifully: “The American Republic will endure until the day Congress discovers that it can bribe the public with the public’s money.”

The Liberty Belle

Leave a Reply

Scroll to Top