Interpreting the Law Undermines the Rule of Law

 In a tyrannical or totalitarian state, the law is whatever the person or persons in charge of enforcing the law decide it is. This leaves the people at the mercy of the leader, with no clear understanding of what is legal and no recourse against despotic acts. 

The strength of our system of government is that it is based upon the of rule of law. Consistency in enforcement and interpretation, along with avenues for redress of grievances provide safeguards against the whims of the ruling class. Deviation from following the law as written erodes the security that comes from the law. If the rights as outlined in the Constitution are defined by interpretation of the law, then those rights are only as secure as the interpretation itself. In other words, no right is protected - only 'suggested'. A change in interpretation leads to changes in what is protected and what is prohibited. 

Many seek to find guarantees of specific rights in the constitution, then fear that a different interpretation will take away that right. If the right is dependent upon an interpretation, then it is no right at all - it is a whim. If you desire a right, specify and codify it by amending the Constitution. Seeking to 'interpret' rights into the Constitution weakens the rights that are specifically guaranteed therein by leaving all to the whim of those who sit on the Supreme Court. 

[Addendum September 5, 2025:  My opinions have evolved greatly since I first wrote this, largely because I have studied the original Constitutional Convention and learned that there were strong arguments against including a Bill of Rights for fear that delineating specific rights would result in some arguing precisely as I did above - that rights not specifically defined are nonexistent. It is why I have written often about the risk that seeking pro-life justices to serve on the Supreme Court puts more than the right to abortion at risk, since doing so practically requires finding justices who have a narrow, rather than a broad, view of the rights guaranteed by our Constitution. As one who believes in individual liberty, I now find that view anathema to a free society.]

Neither Candidate Has an Ideal Plan for Social Security

Neither candidate has a perfect plan for Social Security.  Al Gore's ignores the problem and does nothing to solve the fact that current Social Security taxes will not cover the baby boomers when they retire.  His plan to pay down the debt, then pay for Social Security from the interest savings is a back-door maneuver to use funds from general revenues (in other words, money that comes from sources other than Social Security taxes) to pay for benefits.

George W. Bush’s plan to use part of the surplus we now enjoy from Social Security taxes would allow us to use the time between now and 2015, when Social Security starts running a deficit, to get a better return on the money paid into the system than is now the case.  In the long-run, this is probably the better of the two plans, though the period between 2025 and 2045 (when many of the boomers will be gone) could be dicey.

There is a third option, with some trade-offs that might, just might, make it possible to get something done.  Here it is:

1) Take Social Security “off budget”.  In other words, do not include Social Security surpluses or deficits in the total federal budget calculation.  This would clarify the actual budget picture and prevent politicians on both sides of the aisle from hiding the true picture of our financial situation from the American people.

2) Go through with Mr. Bush’s tax cut plan, but only in exchange for elimination of the income cap that will stop Social Security taxes at $80,000 in 2001.  Effectively, the wealthy would get a much smaller net tax cut, while company matching would help make up the difference in revenue.

3) Allow people the option to invest 2% of their Social Security taxes in approved investments.  While many shudder at the thought of government regulation, perhaps there could be some type of minimum certification for mutual funds or other risk-spreading investments that would make them eligible for Social Security investing.  The goal would be to set a standard (i.e. average return, volatility rating, fund size, etc.), then let fund managers strive to hit the standard, if they so choose.  This would minimize some risk, while still keeping the government out of direct approval of specific stocks or funds.

4) Cap the 2% private investment to the first $80,000 of income.  This would happen today under Mr. Bush’s proposal anyway, but with the elimination of the $80,000  cap everything paid on incomes over $80,000 would go into the Social Security trust fund.  This would extend the solvency of the fund for basic benefits.  A little actuarial work can determine the correct investment caps.

The primary goal of this plan is to assure that Social Security can stand on its own.  If it is unable to do that, we face a world of hurt under any scenario.  Yes, guaranteed benefits may need to be reduced and means-testing may be necessary, but if we can develop a generation of investors with significant personal nest eggs, those realities will not be as painful.

The argument has been made that the stock market is too volatile, too risky.  Yet since the inception of Social Security the Dow Jones Industrial average has generated a 7.3% average annual return.  The S&P 500 has done even better, sporting better than an 11% return annually.  For a worker making $40,000 a year, his investment in a fund tracking the Dow would be worth $250,000 after 45 years of earnings.  A dual income couple making $80,000 would have built a nest egg of nearly $500,000.  Portfolios of this size provide a great deal of security for seniors.

It must also be remembered, that if the stock market were to stagnate for years, it would be a reflection on the economy as a whole.  Traditional Social Security funding would not be able to support the system under such circumstances either.

At some point, we will have to move from a pay as you go system.  Given our current surpluses, now appears to the our best opportunity to do that.  Mr. Gore’s plan is really no plan at all.  His so-called “lockbox” is an illusion (the Atlanta Journal-Constitution, which endorsed him, calls it fraud.)  Mr. Bush’s plan, which is bold and worth pursuing, can be made to work with some actuarial work.  But the time to act is now.