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Miers and the Economy
Published on Thursday, October 6, 2005 by CommonDreams.org
Miers and the Economy
by Robert B. Reich
 

Social values aren’t the only ones at stake when it comes to Harriet Miers’ nomination to the Supreme Court. There are also economic values.

When Miers asserted last fall that the future of the American economy depends, among other things, on making the President's tax cuts permanent and getting rid of unnecessary regulations, she was setting forth a particular view of what’s best for America’s working people. You may agree or disagree, but before confirming Ms. Miers, the Senate needs to find out more.

The President says Miers will "strictly interpret" the Constitution. That tells us almost nothing. The Constitution can be strictly interpreted in all sorts of ways.

Before 1937, a majority of Justices, saying they were "strictly interpreting" the Constitution, struck down as unconstitutional laws setting minimum wages and maximum hours, and barring child labor.

The economic values of those justices favored private property over community standards of fair play. To them, due process of law was mostly about freedom to contract and liberty was the ability to accumulate personal wealth.

Then, early in 1937, one of those Justice switched sides (coincidentally, his last name was Roberts) and the Court’s new majority chose community over property. They said they were still strictly interpreting the Constitution. But suddenly due process was about making laws fairly, and liberty was about giving people opportunities to get ahead.

We no longer have a Great Depression to contend with, as we did then. But we’ve still got big questions of economic values. The U.S. economy has been growing at a healthy clip. But the typical household’s income has barely budged for years. Meanwhile, the number of poor Americans continues to grow. According to the Census Bureau, only the top 5 percent of households have been enjoying real economic gains. Almost all the economic growth has gone to the top.

This raises profound questions about American values. Not since the Gilded Age of the 1890s has this nation experienced anything like the inequality of income, wealth, and opportunity we’re now witnessing.

Should we try to reverse this trend? Does the Constitution require that we provide all our citizens with an equal opportunity to get ahead? Is the widening gap evidence we’re failing at this?

If you see our society as a group of individuals for whom government exists mainly to protect property, you’d probably answer these questions with a "no." If you see America as a national community whose citizens have responsibilities for the well-being of one another, you’d say "yes."

Once again, the nation faces a momentous choice between property and community. Are we the sum of individual goods or is there a common good?

And once again the Supreme Court will be helping America choose. If history is a guide, Ms. Miers’ economic values are as important for us to know as her social values.

Yet apart from random interviews like the one near the start of this column, we don’t know anything about her economic values. She wasn’t a judge, so she hasn’t left a paper trail of opinions. All we have to go on is contained in memos Miers wrote during the past six years she served in the White House.

But the President says he doesn’t want to share those. He says they’re private. He’s wrong. They became public the moment the President nominated her.

The President says Miers won’t change her mind when she gets on the Court. She won’t pull one of those switches that some Justices do – like the 1937 Justice Roberts. That makes it even more important for us, before she’s confirmed, to know her mind.

Robert B. Reich is University Professor and Maurice B. Hexter Professor of Social and Economic Policy at Brandeis University and at Brandeis’s Heller School of Social Policy and Management. He has served in three national administrations, most recently as secretary of labor under President Bill Clinton. He has authored numerous books and is co-founder and national editor of The American Prospect magazine. He is a weekly commentator on public radio's 'Marketplace.' 

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