Social Security: Supreme Court Denies the Fifth Amendment.

If I had to fix the country I would write the Constitution, as is, with all the Amendments. The Constitution is an amazing piece of legislation. The problem is that it has been diluted and reinterpreted to suit the current political flavor. The common assumption that the Supreme Court protects the Constitution is misplaced. Neither the Bill of Rights nor subsequent Amendments define the role of the Supreme Court as interpreting the Constitution. Despite this, the Supreme Court is about to change how we live and how we retire. Yes the Supreme Court will decide our fate especially in terms of how we benefit from our investment in Social Security.

Because there is no $2.7 Trillion "trust fund,” Social Security benefits have already started coming out of general funds. It will become untenable to continue to do so.  And—as with the fate of the Affordable Care Act—the Supreme Court will make the final judgment.  And we have a portent of how they will decide.

Already the Supreme Court has provided Congress with two views of what Social Security is: It can be either a social program or it can be an insurance program.  And although these are mutually exclusive interpretations, the Supreme Curt made both judgments.

In 1960 the Supreme Court decided that Social Security is a social program. It denial benefits to a Bulgarian immigrant Ephram (Fedya) Nestor who came to the United States in 1913 until he was deported in 1965 because he lied on his citizenship application by not admitting that he was a member of the communist party at the time. Despite his continued contribution to Social Security for 19 years—since its inception in 1935--and despite that he was already receiving benefits he was deported and denied Social Security benefits. But his deportation, and subsequent denial of benefits, went beyond the 1954 deportation law. The fact that his second wife Barbara Nestor (nee Herman)—also a Bulgarian immigrant—was denied social security indicates that Social Security benefit payments are up to the whim of the state. The Supreme Court established the principle that entitlement to Social Security benefits is not a contractual right. Yale law professor Charles Reich famous 1964 article "The New Property"—in which he called Nestor "the most important of all judicial decisions concerning government largess"—urged courts to provide social security benefits the same protections as other property.  

In the Nestor case the Supreme Court argued that Social Security was not insurance, and that "earned" social insurance benefits were neither "property" nor contractual right, a major pronouncement that has never been overturned—then came the story of an Amish farmer, Edwin D. Lee, and the Supreme Court flip-flopped. In 1982 the Supreme Court argued that Social Security is in fact an insurance program and not a social program. 

Lee, who lived near New Wilmington, Pennsylvania, failed to withhold social security taxes from his employees or to pay the employer's share of such taxes because he believed that payment of the taxes and receipt of benefits would violate the Amish faith: "But if any provide not for his own, and specially for those of his own house, he hath denied the faith, and is worse than an infidel.” Timothy 5:8.  Edwin Lee and the Amish do not object to paying taxes except for the Social Security and unemployment taxes. They protest these taxes, formally, on the grounds that they represent forms of insurance, which their religion prohibits.

Lee sued in Federal District Court for a refund, claiming that imposition of the taxes violated his First Amendment free exercise of religion rights and those of his employees. In passing this judgment, Chief Justice Burger argued that it “… is unconstitutional as applied to persons who object on religious grounds to receipt of public insurance benefits and to payment of taxes to support public insurance funds.” Clearly arguing that Social Security is an insurance program. A similar claim by a member of Sai Baba was denied exemption because although opposed to insurance on religious grounds, the faith did not provide for its members.

These two cases are important because they hold two divergent and exclusive interpretations of the law at the same time.  Although there have been many other cases, the fact that these two judgments have not been reconciled has to be intentional. It allows Supreme Court to interpret the law to benefit the type of Congress that we have. When Social Security benefits can no longer be paid from the general fund, then there will be judgments on who and how much will benefit. Whatever the outcome, the Supreme Court has already decided that our benefits are not entitled nor guaranteed. We have to continuously make Congress accountable for the “trust fund” that we lost “trust” in and which has no ”funds.” The Fifth Amendment ends: “nor shall private property be taken for public use, without just compensation." All we need now is for the Constitution to be honored. 

© USA Copyrighted 2014 Mario D. Garrett

Hiding from the Pain: Robin Williams's Autopsy

Robin Williams’s death on August 11 2014 generated a lot of interest because there were so many cues. Or cues that we strongly believe we need in order to be able to explain his suicide as “rational”. We are now learning that depression, anxiety, and Parkinson’s disease weren’t the only issues plaguing Robin Williams in the months before his death. According to a new autopsy and toxicology report his brain also showed signs of dementia. We have now “explained” the suicide as a biological fate accompli. Biological determinism. Dementia and Parkinson’s at the same time. What better reason to commit suicide.

But this is rubbish.

What neurologists think as the disease in the brain—the neuropathology—which in Alzheimer’s are the plaques and tangles—has never been validated. We see a lot of plaques and tangles in the brains of dementia or Alzheimer’s patients after they die. But there is not one study that shows that the plaques and the tangles CAUSE the disease. The same as a scab over a wound. The scab is an indication of a trauma, but it is not the trauma itself.

If we did an autopsy of you today it is very likely that you have some of the signs of dementia. In fact most older adults have these plaques and tangles. So much so that just under one in three of  older adults have as much disease as those with dementia but without expressing the disease. And it is not just older adults who have these neuronal damage. A study on young victims between the ages of 26 and 30 reported that more than one in five already had early stages of the disease.

What is stranger still is the observation that there are people with dementia who do not have the disease in their brain. There is a famous long-term study conducted by David Snowdon looking at nuns. Snowdon was one of the first to report such cases. There are inconsistencies in how we are trying—but failing—to define the cause of Alzheimer’s disease and dementia in general.

Diseases of the brain are not all that distinct. Although we have given names to specific diseases these are not as distinct in real life as neurologist would like them to be. We talk about Lewy Bodies dementia as though it is distinct from Alzheimer’s, but in fact they are on a sliding scale…more likely to look like Alzheimer’s or Lewy Bodies. There is also the vogue to call all types of dementia “Alzheimer’s”. Even Alois Alzheimer himself, more than 100 years ago, was confused by the distinction. And we remain confused today. Most of brain diseases share similar neurological deficits. Whether these are the cause or an expression of an underlying disease has not been determined.

With Robin Williams’s death we have to stop looking for simple answers. There is no greater answer to be found in biology. Our biological body is a balance—it is not a digital machine. As with cancer—and we all have cancer—it is how the body manages to keep it in balance. It is not whether there is a disease, but how we control and keep it in check. Evidence of dementia is no evidence. It is after-the-fact excuses to rationalize an individual’s pain and suffering as legitimate without understanding the pain and suffering.

© USA Copyrighted 2014 Mario D. Garrett