Terry Jeffrey

"A majority of the members of the Senate Committee on Finance believed old-age insurance to be unconstitutional," said Witte, "and it is my belief that several voted for it in the expectation that it would be invalidated by the Supreme Court."

Why did the Railroad Retirement Act decision make people believe the Supreme Court would toss Social Security? Because it was a small-scale version of Social Security. It ordered all railroad workers into a compulsory government pension program funded by a payroll tax apportioned between them and their employers.

The Roosevelt administration argued that the Commerce Clause -- which gives Congress the power to "regulate commerce ... among the several states" -- gave the federal government the power to force railroad companies and workers to fund and participate in a federal retirement program.

The court slapped this down 6-3. Justice Owen J. Roberts -- the Anthony Kennedy of that era -- wrote the opinion. He was joined by Chief Justice Charles Evans Hughes, the other swing vote of that time.

Roberts clearly envisioned how the Railroad Retirement Act could open the door to a massive federal welfare state.

"If that question be answered in the affirmative, obviously there is no limit to the field of so-called regulation," wrote Roberts. "The catalogue of means and actions which might be imposed upon an employer in any business, tending to the satisfaction and comfort of his employees, seems endless. Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry."

Two years later, in 1937, the Social Security Act came before the same court. The Democrats and FDR had just won a massive election victory in November 1936. In his 1961 speech at the Social Security Administration, Thomas Eliot was asked: "Just what do you think caused the Supreme Court to reverse itself in its decision to declare the Act constitutional?"

"What happened in 1937 was that in February the president came out with a scheme to 'pack' the Court," said Eliot. "No one knows, and there is some dispute about it, but I think that probably it's fair to say that the Court was not unmindful of this attack."

"There were nine justices on the Supreme Court; one or two of them had to change their positions pretty fundamentally to thwart the threat of that number of nine being added to by six new justices appointed by the president," said Eliot. "The old saying about that particular change of front is that, 'A switch in time saved nine.'"

And significantly expanded the control the federal government has over the lives of individual Americans.


Terry Jeffrey

Terence P. Jeffrey is the editor-in-chief of CNSNews

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