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2. The Real Third Rail of American Politics
- University of Massachusetts Press
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0 2 The Real Third Rail of American Politics Michele Landis Dauber A surprising Confidence In 1962, Frances Perkins, Franklin Roosevelt’s secretary of labor, recalled the “Roots of Social Security” for an audience of Social Security Administration staff members. The Committee on Economic Security, which had broad agreement on most issues involved in drafting the Social Security Act, “broke out into a row because the legal problems were so terrible.” According to Perkins, the legal committee had deadlocked in the summer of 1934 over the crucial question of the constitutional basis for federal authority over unemployment and old age insurance. Then, as Perkins told the crowd, she paid a social call on Supreme Court Justice Harlan Fiske Stone’s wife. Justice Stone himself sat down to tea and asked how Perkins was getting on. She seized the opportunity and laid before him the problem that was occupying the committee: Well, you know, we are having big troubles, Mr. Justice, because we don’t know in this draft of the Economic Security Act, which we are working on— we are not quite sure, you know, what will be a wise method of establishing this law. It is a very difficult constitutional problem you know. We are guided by this, that, and the other case. [Justice Stone] looked around to see if anyone was listening. Then he put his hand up like this, confidentially, and he said, “The taxing power, my dear, the taxing power. You can do anything under the taxing power.”1 Perkins returned to work from her encounter with Justice Stone and firmly, although somewhat mysteriously, informed the committee that Social Security and unemployment compensation should be justified as an exercise of congressional power under the taxing and spending clause of the Constitution.2 According to Perkins and her chief legal advisor, Tom Eliot, the entire act was structured around Stone’s admonishment.3 the real third rail of american Politics Today, if Perkins’s tale is remembered at all it is as a confession of an overly cozy, if not flat-out improper, relation between the Supreme Court and the Roosevelt administration that in the end saved the infant welfare state from the Four Horsemen, the bloc of conservative justices who seemed set on blocking the New Deal. We can glean a more interesting insight , though, if we look past the tantalizing image of the whispering Justice Stone and listen to his advice: What was this power under which the federal government could “do anything,” and why was he so confident, in the summer of 1934, that the Supreme Court would ratify a scheme for which its advocates strained to find a constitutional basis? Justice Stone’s assurances of broad federal power should strike us as odd, coming as they did three years before 1937’s “switch in time” forestalled Roosevelt’s court-packing plan.4 It is axiomatic in contemporary legal historiography that before 1937, federal intervention in the economy was proscribed by a narrow interpretation of congressional power under the Constitution, especially during the late nineteenth and early twentieth centuries. In particular, it is commonly believed that prior to the New Deal, the development of a U.S. welfare state had been stunted by a strict “Madisonian” view of the power of Congress—under the very clause cited by Stone—to appropriate funds only in the service of a specific enumerated power rather than in the “general welfare.”5 In this view, apart from a few specifically defined categories such as Civil War pensions,6 welfare spending was outside the scope of federal authority and fell to states, local governments, and charities. Even worse, the taxing power had been the focus of particular anxiety during the Lochner era and had been treated by conservative commentators to a legendarily narrow interpretation in the form of the “public purpose doctrine.”7 To us, then, it may well appear that Justice Stone was pointing Perkins toward not a safe haven but a locked door. Four years before Perkins’s conversation with Justice Stone, during the summer of 1930, drought crept across the rural American South. Millions of families in an area spanning twenty-six states faced the coming winter literally barefoot and starving to death. In the bituminous coal fields of West Virginia and Kentucky, thousands of miners struck against the greedy brutality of the mine operators and were turned out of their homes with no means of survival. As fall wore on, the urban centers of the...