Proof of an Activist Court under FDR (Part II)

Under FDR, the Court ruled in Helvering v. Davis that the government could enforce a social security and unemployment system. Obviously there is nothing in the Constitution about social security and unemployment, but the court ruled that it was a tax covered under the 16th amendment allowing the government the right to impose an income tax. However, the newly proposed Social Security Act was not an income tax, but a payroll tax. The tax dollars collected went into the Treasury and were not earmarked for social security of unemployment, but instead could be used as the government saw fit. In fact, in Fleming v. Nestor in 1960 the Court ruled that workers had no legal standing to collect social security and those benefits could be eliminated or cut entirely. So social security was just another way for the government to tax and create more revenue. When social security passed, the life expectancy was 63 and the age to collect social security was set at 65. Hence, social security was designed so that most people would not collect benefits. It was a scam and a present day Ponzi scheme. It was truly an innovative new way to tax Americans and was not at all investment insurance to protect citizens from another financial collapse. To further complicate matters, social security was enforced on all private sector citizens but not government workers. How could such a scheme be constitutional?

In Korematsu v. United States the Court ruled that FDR had the power to round up and place over 120 thousand Japanese Americans into internment camps (prisons). Thousands would die from dysentery due to terrible living conditions. And in the process of arresting Japanese Americans, all of their belongings were confiscated and never returned including, money, property, vehicles, furniture, jewelry, and so forth. Less than 80 years after the Civil War America was once again discriminating against an ethnicity and depriving them of the right to due process under the 14th amendment added to the Constitution just for cases like this.

What the Court practiced under FDR was neither “originalism” nor “judicial constraint”, it was judicial activism. After the death of FDR, Frankfurter and Black moved almost immediately into the roles they would be known for on the Supreme Court: Black would be and originalist and Frankfurter would follow judicial constraint and would be on the opposing sides of many major decisions. In West Virginia Board of Education v. Barnette in 1943, you could see the difference in Frankfurter and Black. In the case, it was ruled that Jehovah Witness students had a first amendment right to break a tradition of saluting the American Flag in schools. Black believed that the first eight amendments in the bill of rights was applicable to the states via the 14th amendment. Hence, Black was able to apply this philosophy to the 1st amendment to render a decision in the Barnette case. On the other hand, Frankfurter believed that the courts did not have to decide whether or not a law is good or bad, but merely determine if the law was reasonable. In his decent, he did not see anything unreasonable with people saluting the American Flag whereas Black felt people had freedom expression to salute the flag or not.

Black had a narrow view of the 4th amendment by claiming warrantless wiretapping was legal. He viewed conversations as different then tangible things obtained from searches and seizures. He also refused to read “privacy” into the constitution which is commonly done today. How can this same person who does read anything into the constitution such as to protect conversations and privacy make those same decisions in the FDR era?