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Social Security and the Constitution in Exile

A phrase we're likely to hear more of, especially as we head into a Supreme Court nomination fight, is "The Constitution in Exile." This catch-phrase comes from a previous Supreme Court nominee, the original right-wing pothead, Douglas Ginsburg writing in 1995, and refers to to the idea that the "true Constitution" is found in decisions such as Lochner v. New York, invalidating wage and hour regulations, and the decisions that invalidated the early New Deal, before the dramatic 1937 switch on the court that began to uphold some of FDR's legislation. With that switch, these scholars and jurists now argue, the true constitution was "exiled," and must now be restored.

Jeffrey Jamison, writing on the blog of the American Constitution Society, has a good summary of the Constitution in Exile argument as it has evolved, and particularly hints that certain recent and potential judicial nominees may be adherents of the "Constitution in Exile" theory. Janice Rogers Brown, for example, has referred contemptuously to "The Revolution of 1937."

I won't try to say much about this, since I'm no constitutional scholar. I did, however, recently read G. Edward White's The Constitution and the New Deal
, which made the argument that the shift in 1937 was not as dramatic as it has generally been thought to be, and that it is wrong to characterize it as a shift toward liberalism.

But a point that I have not seen discussed is the connection between the Constitution in Exile and Social Security. It is simply this: the case that marks "the Revolution of 1937" was the case upholding the Social Security Act, in Steward Machine Company v. Davis.

I noticed today on the wonderful History News Network site a short article about the arguments that Robert Jackson, later to be a distinguished Justice himself, made before the Court in Steward as Assistant Attorney General. They make the case for Social Security as well as it needs to be made today.

I hope that when the next Supreme Court nomination finally occurs, the debate will not focus almost exclusively on the Court's position on social issues such as Roe, Griswold, gay marriage and sodomy, affirmative action, etc. The economic role of the federal government is now deeply in question, and the Constitution in Exile judges, just like the Social Security privatizers, want to roll back the clock a lot futher than 1973 or 1961.

Posted by Mark Schmitt on February 22, 2005 | Permalink


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» The "Constitution in Exile" and Social Security from ACSBlog: The Blog of the American Constitution Society
Following up on ACSBlog Editor Jeff Jamison's The Return of the Constitution in Exile?, Mark Schmitt of the Open Society Institute discusses the historical role Social Security played in reaching our modern understanding of the Constitution. "[A] point... [Read More]

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Decembrist: On this, see the Bruce Ackerman piece in the 2/17 London Review of Books. A good primer on the what may be coming.

Posted by: Rwells | Feb 25, 2005 12:26:11 AM

Maybe the current junta is doubly upset at social security because, not only was it initiated by that well known socialist, FDR, but the opinion upholding it was written by that damn liberal Jew, Cardoza.

I'm sure there are more shallow reasons for policy decisions in this administration.

Posted by: matt | Feb 25, 2005 1:39:43 PM

This administration and its wealthy supporters want to return to the guilded age. Back then people succeded or failed by their own resources and luck but large corporations got 'welfare' such as the Railroad Land Grants.

To expand the point a little, advocates of lazie
fare capatilism are usually those who think that they will benefit from it by applying it to everyone but themselves.

Posted by: argus | Feb 26, 2005 10:42:38 AM

I read about the history of jurisprudence in America pretty frequently when I happen to have some spare time, and I'd certainly say that money has a big influence on jurisprudence.

I don't think that's quite accurate to call Cardozo a liberal. I think some things he did were more incidentally liberal than intentionally liberal.

But, on point, here's something that people seem to be kicking around that looks at the same issue, but from a broader perspective. .I haven't had time to look at the whole thing yet, but it looks interesting.

Posted by: Swan | Feb 26, 2005 7:30:27 PM

It is important to note in discussions of Social Security that there never was any supposed "Constitution in Exile" with respect to the taxing and spending power of Congress. That is, whatever dubious legitimacy such arguments might have with respect to other constitutional provisions, they have none at all in this regard. The General Welfare power of Congress (now called the Spending Clause) was essentially never subject to judicial review, and the Court has never held, even during the darkest days of what law professors call "The Lochner Era" that Congress has ever exceeded its power to appropriate in the general welfare. Thus, Social Security has no relation to the Constitution in Exile. That is one of the primary reasons the old age and unemployment provisions of the Social Security Act survived Supreme Court review, the former by a 7-2 vote. For readers who are interested, see my article on this subject (forthcoming in Law & History Review) The Sympathetic State at http://www.press.uillinois.edu/journals/lhr/toc.php

Posted by: Michele Landis Dauber | Mar 4, 2005 1:37:38 AM

I have added a page on the topic of “The Constitution in Exile” at http://www.constitution.org/cons/exile/exile.htm . I also have a blog at http://constitutionalism.blogspot.com that you may enjoy visiting. Comments are welcome.

Posted by: Jon Roland | Sep 5, 2005 2:01:13 AM

The Price of Social Security—Blood, Death, and Tears.

It is brittle, faded, and dark from age. Once laminated for preservation, after years of wallet wear, the plastic is brittle and flaked away. My father carried the document with him for 50 years until he died—it was that cherished. It was his original social security card, one of the first issued after the Social Security Act was signed into law.
My mother had sent for a new card to replace the washed out original. Pap refused to carry it and filed it away. I once asked him why. “We worked hard for this card,” he replied. “The price paid for it was blood, death, and tears.” He then explained to me what life was like for the worker when there was no “official” union, labor laws, or social security. The workers were at the mercy of the company. They had to work long hours under unsafe conditions. If they didn’t have a relative to move in with when they grew old they worked until they dropped dead on the job or starved.
Pap was a union organizer for the United Mineworkers of America. He started his career by finding relief for striking miners and their families during the 1927 strike in the Western Pennsylvania coalfields. The strike involved almost 200 thousand miners. Tired of being coal company slaves, they refused to work. The walkout lasted approximately 15 months. State Coal and Iron Police brought into the area to evict the families from their homes, imposed unconstitutional restrictions, seized their property, and put them out of their homes. It was a time of brutal beatings, rape, and murder. The story is documented in the book, Miner Injustice the Ragman’s War by R. S. Sukle.
The horrid conditions in the coalfields prompted a Federal investigation that resulted in the draft of the National Industrial Recovery Act. Proposed to congress in 1928 it failed. By fall the strike had ended and the union was in shambles. The miners went back to work for whatever wages were offered. Times were hard. Deductions from the workers meager wages barely covered rent and tools let alone food.
The NIRA did not pass until after Franklin Roosevelt took office in 1933. It became the centerpiece of his “New Deal.” Before the ink was dry on the new recovery act, members of the UMWA started to organize the mines. Although unions were now legal, the coal companies did everything within their power to stop the movement. It was a dangerous time for union organizers and many lost their lives. The steel, coal, and rail industry even attacked the National Industrial Recovery Act through the court system. In 1935 the NIRA was declared unconstitutional by the Supreme Court.
In a counter move the National Labor Relations Act (Wagner Act) was enacted by Congress that same year. The Wagner Act guaranteed workers the right to join unions without fear of management reprisal. It created the National Labor Relations Board (NLRB) to enforce this right and prohibit employers from committing unfair labor practices that might discourage organizing or prevent workers from negotiating a union contract.
In 1933 soon after he was elected, President Roosevelt appointed Frances Perkins as Secretary of Labor, the first woman in American history to hold a Cabinet post. She moved to Washington, “to serve God, FDR, and the common workingmen.”
Labor now had a sympathetic ear in a high office. Supporters of old age insurance, many like my father, expanded their efforts into organizing a grass roots letter writing campaign. Thousands of letters poured into the President’s office pleading for help. Union activists also collected signatures on petitions that supported the Old Age Revolving Pension Plan as proposed by Francis Townsend.
On June 29, 1934, Roosevelt established the Committee on Economic Security and gave it responsibility for designing social security for the United States. The resulting Social Security Act, revised by both the Congress and the Senate, was signed into Law on August 14, 1935.
The newly enacted Social Security Act faced two challenges. The first was the 1936 Presidential election. Republican candidate Alf Landon, advocated repealing the Social Security Act. The Hearst newspaper chain attacked the law with front-page articles based on gross distortions. The second challenge came from the Supreme Court. Resolute to restrain the biased Court packed by his predecessors, Roosevelt requested that Congress enact a bill that would empower him to appoint one additional Justice for every one who turned 70 and did not retire, for a maximum of six, thus enlarging the Supreme Court from nine Justices to up to fifteen.
With a Court docket that included, in addition to the Social Security Act, the popular pro-labor Wagner Act, the Court had a thorny dilemma. Most of the Justices, loyal still to industrialist interests, were opposed. On the other hand, if they voided them, Congress would most likely enact Roosevelt’s Court packing proposal. After weighing the options, the Court decided to uphold both the Social Security Act and the Wagner Act.
The gains in fair labor laws and social security were hard won. The leaders in labor and government have their place in history, but their triumphs would not have been possible without the efforts of the common working man. Today we enjoy the benefits of their labors. They and their families paid the ultimate price of human suffering and sacrifice—“blood and tears,” to quote my father. No wonder he was so proud of that yellowed dog-eared card.

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