Amendment 28

Following last week's suggestion, today I make a feeble first attempt to formulate an amendment to the Constitution, which simultaneously legalizes our current Social Security laws and reins in the federal government.

Proposed Amendment 28:


Section 1. In defining the powers of the Congress, the phrase 'general Welfare of the United States' in Article 1 Section 8 will be understood to grant no additional powers beyond those specifically enumerated either subsequently in Article 1 Section 8 or elsewhere in the Constitution. Instead, this phrase will be understood to prohibit the Congress from authorizing funds for purposes not benefitting all of the states.


Section 2. The Congress is authorized, but not required, to provide funds for the support of the aged.

Section 3. The Congress is authorized to promote the Progress of Science and useful Arts.

The second sentence of Section 1 returns 'general Welfare of the United States' to its original Madisonian meaning, and incidentally clarifies the unconstitutional nature of most earmarks. Last week I discussed the motivation for Section 2 of the amendment. Weaker, strictly political arguments might suggest changing 'the aged' to 'aged and the indigent' or 'aged and the infirm.' I added Section 3 in honor of the Tevatron and NASA. Such endeavors clearly do not lie in the domains of the individual states. I am sure the number of such (self serving) sections will grow rapidly if people seriously consider how much retrenchment of the federal government they truly desire. Ultimately, Article 1 Section 8 should probably be rewritten in its entirety. The primary goal of this exercise is to make constitutional those unconstitutional laws already enacted which neither party has the political will to repeal. Although this entrenches laws repugnant to most libertarians and many conservatives, the degradation of constitutional governance resulting from systematically ignoring constitutional violations (has been and) will be more detrimental to the long term health of our republic than any legitimization of the currently constituted welfare state.


I include below the text of Article 1 Section 8 for the convenience of the reader.

Article 1 Section 8:
The 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; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads ;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal , and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Constitutional Quick Sand and Social Security

The Tea Party has forcefully reminded the GOP of the constitutional limits on the powers of the federal government; the Republican majority in the House has responded with promises to adhere more closely to its oath of allegiance to the Constitution. On the other hand, the electorate largely favors many New Deal and Great Society social welfare programs whose constitutional bases are hotly contested (most often by people not running for office) . This places our newly empowered constitutional conservatives in a weak position. When conservatives oppose legislation which violates the Tenth Amendment's stricture:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,"
the left can always respond that the same argument would apply to Social Security and challenge its opponents either to repudiate Social Security (and the sea of baby boomer voters with low net retirement savings) or to abandon their constitutional principles. Social Security sits as a massive counter example to most claims of strict adherence to the Constitution.

The constitutional conservative has two principled responses to the Social Security challenge. He can repudiate Social Security and hope that this does not lead to decades of governance by Obama clones. A politically powerful, albeit less fiscally responsible alternative, is to propose a constitutional amendment that simultaneously narrowly legalizes (constitutionalizes?) Social Security while further clarifying the limits of federal power. I have no yet formulated what form such an amendment should take (and welcome suggestions). Certainly such an amendment should at most permit a social security plan and not mandate one. In debating such an amendment, we would necessarily revisit the rationale for such a program, and likely redesign it. If we grant, for the sake of discussion, the desirability of offering government pensions, we may perhaps justify removing them from state control by the simple observation that the freedom to move between states would lead a rational citizen to spend his productive years in a low tax state and then move to a high benefit (and presumably therefore higher tax) state upon retirement.

My proposed amendment does not imply that the current Social Security program is an intelligent use of our limited resources. I have saved for my retirement and do not understand why less comfortable workers should augment my income when I retire in a few decades. At the very least, I think we should have some means test for Social Security, even though that will introduce new issues of moral hazard.
Nonetheless, the integrity of our Constitution requires us to legitimize the status quo, as we are exceedingly unlikely to repeal Social Security in the current political and demographic climate. The current willful avoidance of the issue simply encourages further erosion of respect for the Constitution and its restrictions on federal power.

Politics and Party Purity

In one nonpartisan state race this year, my county GOP endorsed a Republican candidate with a criminal record. I fought against this choice and lost. All my arguments fell on deaf ears. My opponents on this issue (essentially everyone else in the county party) cited only the candidate's greater experience in his favor. I objected that endorsing this candidate would taint our recommendations in other races with stronger candidates. The race is now over. There is no evidence that our endorsement tainted our other recommendations. In a large field, the flawed Republican candidate edged out a Democratic candidate by a few thousand votes. If our county GOP had endorsed my preferred candidate, the Democrat probably would have won. I prefer a flawed Republican to a liberal Democrat; should I therefore be glad that I was unable to sway my colleagues? I am still unsure what lesson this experience teaches. Contending lessons include:
(i) My political intuition is much poorer than my colleagues.
(ii) When my colleagues say 'experience', they really mean 'electable.'
(iii) My colleagues' political sensibilities are much closer to the general electorate's than mine are.

I was not upset this election cycle to see the GOP risk losing a few races nationally by discarding some experienced candidates who were all but indistinguishable from liberal Democrats. I think the long term health of the party is better served when it represents strong principles rather than a desire for power. Unfortunately, the line between supporting party principles and pursuing self defeating ideological purity, is not well marked on any map. In my nonpartisan state race, my objections were to a character flaw rather than a disagreement over principles; hence, I doubt the GOP (and therefore the public) would have been better served by a liberal Democratic win. On the other hand, my Republican colleagues now tell me that the losing Democrat is not particularly liberal and may, in fact, have been better qualified for the nonpartisan position in question.

As politics moves from the national to the local level, issues and the meaning of party labels become much fuzzier.