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.