“Bills of attainder, ex-post facto laws, and laws impairing the obligations of contracts are contrary to the first principles of the social compact, and to every principle of sound legislation… The sober people of America…have seen with regret and indignation that sudden changes and legislative interferences…become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.”
— James Madison, Federalist Number 44, 1788
Prior to the adoption of various amendments, The Constitution of the United States of America imposed very few restraints on the power of state legislatures, but one form of law was deemed so tyrannical and so unjust that the Constitution includes a specific prohibition on its use in Article I, Section 9, paragraph 3: “No bill of attainder or ex-post facto law will be passed.”
Banning bills of attainder was a protest against the practice of passing a law penalizing a certain person or entity. It says laws are required to be general in nature and then the courts determine guilt or innocence and the proper sentences.
When the Maryland legislature recently passed a law requiring that those who employ over 10,000 people in the state of Maryland must spend over 8 percent of their payroll (6 percent if they are non-profits) on health insurance or else contribute money to the state’s Medicaid program, it followed the form of a general law applicable to all. As a result, they may get away with it and not have it declared unconstitutional.
It was not merely a foolish or mistaken vote, but an evil and tyrannical one, because it was a bill of attainder in all but name.
There are four employers in the state of Maryland that employ over 10,000 people: Northrop-Grumman, Johns Hopkins University, Giant Food, and Wal-Mart. The other three already spend more than the required percentage of payroll on health insurance, so the law was intentionally written to affect Wal-Mart and only Wal-Mart. In effect, the Maryland legislature passed a law penalizing Wal-Mart and ordering it to change its behavior or pay a special tax.
The issue at hand has nothing to do with whether businesses ought to provide health insurance for their employees or even whether states ought to mandate such coverage. Hawaii has such a law, and if the Maryland legislature had passed a law requiring all employers to provide health insurance, it would be a legitimate public policy decision by the people’s elected representatives.
In passing a law targeting Wal-Mart and only Wal-Mart, the legislature fulfilled Madison’s exhortation that such laws “become jobs in the hands of enterprising and influential speculators” or, in other words, that enterprises will try to use the power of government to disadvantage their competitors.
Madison also correctly identified that such laws would be used as “snares to the more-industrious” and so Wal-Mart, precisely because it has been so successful at providing jobs, gets attacked. The Maryland legislature has no problems with less successful, less industrious companies that cannot provide any health insurance.
Wal-Mart has responded with unfortunate pieties, pointing out that everyone should have access to health insurance and offering statistics showing that it offers loads of health insurance plans and most workers are covered by health insurance. The executives in Bentonville need to realize that they are confronting a perfect storm: an alliance between a radical left that hates all big business with unions and competitors who just want to stop Wal-Mart.
Wal-Mart’s protestations of righteousness will fall on deaf ears. It should be attacking these legislators frontally as corrupt tools of its opponents and declaring the injustice of such laws designed to penalize one company and one company alone. This is not a law. It is a mugging, and anyone with a sense of justice has an obligation to oppose it.
And they will get a chance. There are similar laws pending in 30 states and, unfortunately, indications suggest many of Wal-Mart’s unionized competitors will actively lobby for their passage or, at least, passively acquiesce in the enactment of such laws.
This is not law; this is lawlessness. Everyone needs to rent a copy of A Man for All Seasons, in which Sir Thomas More reminds us all that in urging lawless solutions to our problems we will, ultimately, deprive ourselves of the benefit of law:
Margaret More: Father, that man’s bad.
Sir Thomas More: There’s no law against that.
William Roper: There is: God’s law.
Sir Thomas More: Then God can arrest him.
Margaret More: While you talk, he’s gone!
Sir Thomas More: Go he should, if he were the devil himself until he broke the law.
William Roper: So now you give the devil benefit of law!
Sir Thomas More: Yes, what would you do? Cut a road through the law to get after the devil?
William Roper: Yes. I’d cut down every law in England to do that.
Sir Thomas More: And when the last law was down, and the devil turned on you… where could you hide, Roper? This country is planted with laws from coast to coast… Man’s laws, not God’s, and if you cut them down…do you really think you could stand upright in the wind that would blow?
Wal-Mart’s competitors ought not to think themselves so beloved that acquiescing in the principle that it is a good idea for legislatures to beat up on individual companies will leave Wal-Mart’s competitors permanently unscathed. No American should think liberty is assured forever if they sit passively by and allow their government to act tyrannically. James Madison warned us.