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Sen. Mike Lee: All Entitlement Spending Is Unconstitutional

By Ian Millhiser  

"Sen. Mike Lee: All Entitlement Spending Is Unconstitutional"

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Sen. Mike Lee (R-UT) has left no doubt that he cannot tell the United States Constitution from a buzzsaw designed to reduce America’s safety net into sawdust. Long before he became a lawmaker, he was on record claiming that Social Security and Medicare are unconstitutional.

Speaking on a panel at the Conservative Political Action Conference yesterday, Lee admitted to the full implications of his backwards view of our founding document. All spending on national programs intended to secure Americans’ retirement or provide for their health are unconstitutional:

QUESTION: What programs that we now call entitlement spending are part of the enumerated powers of Article I, Section 8 [of the Constitution]?

LEE: There are those that will tell you that those are based on the Spending Clause, in, uh, clause one of Article I, Section 8. That was the justification advanced at the time these programs were created. And it rested on an expansive interpretation provided by the Supreme Court saying, in essence, Congress can spend anything it wants, as long as it has tax revenues coming in, or, as it turns out, even if it doesn’t. It can spend it on whatever it wants.

This can’t be reconciled with the original understanding of the clause. If you go back to founding era documents, to discussions around state ratification debates — the Federalist Papers — they understood the Spending Clause as being there to spend money on those powers that were duly enumerated. . . . If these kinds of programs, ah, were to come forward and we were really following the original understanding of the Constitution, we’d say let’s do these at the state level, and the local level. Never at the federal level.

Watch it:

Lee’s odd reading of the Constitution cannot be squared with the text of the document itself. Had Lee actually bothered to read the founding document, he’d know that the United States may “collect taxes . . . to pay the debts and provide for the common defense and general welfare of the United States.” Medicare, Social Security and other such safety net programs clearly provide for the nation’s “general welfare” and thus are unambiguously constitutional if you take the text of the document seriously.

Moreover, Lee’s description of early constitutional history is misleading at best. The reality is that there were two very distinct camps regarding how the Constitution should be interpreted in the early days of the Republic. James Madison led one camp, which believed that America should read the Constitution much more narrowly than its text suggests — although, to Madison’s great credit, he openly admitted that his preferred reading of the Constitution is inconsistent with its “literal” meaning.

Alexander Hamilton led a different faction which rejected the idea that the Constitution creates restrictions that don’t exist in its text, and the Supreme Court unanimously adopted Hamilton’s view in the very first Supreme Court decision to consider the question. More recently, conservative Justice Antonin Scalia laughed openly at the suggestion that this debate should be reopened, stating that “of course it’s not” the proper role of judges to second guess how Congress decides to spend money.

In other words, Lee’s position doesn’t just place him at the lunatic fringe of constitutional thinkers, it also puts him at the lunatic fringe of conservative constitutional thinkers.

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