January 21, 2006


Robbing Wal-Mart (George Will, Jan 19, 2006, Townhall)

Organized labor, having mightily tried and miserably failed to unionize even one of Wal-Mart's 3,250 American stores, has turned to organizing state legislators. Maryland was a natural place to begin because it has lopsided Democratic majorities in both houses of its legislature.

Labor's allies include the "progressives'' who have made Wal-Mart the left's devil du jour. Wal-Mart's supposed sin is this: One way it holds down prices (when it enters a market, retail prices decline 5 percent to 8 percent; nationally, it saves consumers $16 billion annually) is by not being a welfare state. That is, by not offering higher wages and benefits than the labor market requires. Labor's other allies are Wal-Mart's unionized competitors, such as, in Maryland, Giant Food, a grocery chain. These allies are engaging in what economists call rent-seeking -- using government to impose disadvantages on competitors with whom they are competing and losing.

Wal-Mart's enemies say Maryland is justified in expropriating some of the company's revenues because the company's pay and medical benefits are insufficient to prevent some employees from being eligible for Medicaid. Well.

Eighty-six percent of Wal-Mart employees have health insurance, more than half through the company, which offers 18 plans, one with $11 monthly premiums and another with $3 co-payments. Wal-Mart employees are only slightly more likely to collect Medicaid than the average among the nation's large retailers, who hire many entry-level and part-time workers. In the last 12 months, Wal-Mart, the largest private employer in the nation and in 25 states, estimates it has paid its 1.3 million employees $4.7 billion in benefits. That sum is almost half as large as the company's profits, which last fiscal year were $10.3 billion -- just 3.6 percent -- on revenues of $285 billion. Wal-Mart earns just $6,000 per employee, one-third below the national average. Anyway, Wal-Mart's pay and benefits are sufficient to attract hordes of job applicants whenever it opens a new American store, which it does once every three days.

Maryland's new law is, The Washington Post says, "a legislative mugging masquerading as an act of benevolent social engineering.''

Anyone know why this shouldn't be considered a Bill of Attander?

Posted by Orrin Judd at January 21, 2006 12:04 PM

I would guess because WalMart's not a person and this is not a criminal statute. Plus, it's probably written as a statute of general application, even if it's designed just to grab WalMart.

Posted by: David Cohen at January 21, 2006 1:21 PM

The so-called "Progressives" are trying the same things here in the Upper Left Washington.

"benevolent social engineering."

That goes on the oxymoron list just after "Mexican environmentalist" and "important celebrity."

Posted by: Raoul Ortega at January 21, 2006 2:04 PM


I thought your position was that corporations don't have rights?

I think the law was written so as to target any company making such-and-such amount of money in the state of Maryland, so as to avoid mentioning Wal-Mart by name. You would probably know better than I if that is a common tactic for skirting the rules.

For the record, I think the law is asinine.

Posted by: Matt Murphy at January 21, 2006 2:20 PM

that's going to make maryland an attractive place for other businesses to setup in. typical socialist boondoggle that will end up costing the state far more than it ever brings in.

Posted by: toe at January 21, 2006 2:27 PM

Mr. Murphy makes one of my points. The other is, post-Kelo, it's hard to see how this kind of taking for public purpose is un-Constitutional according to our current USSC.


Frankly, so what? It was done for the benefit of certain economic and political factions, not the overall citizenry of Maryland. I suspect that the people who got this law passed will benefit quite well from it.

Posted by: Annoying Old Guy at January 21, 2006 2:51 PM

I just don't get this fascination with Kelo.

Posted by: David Cohen at January 21, 2006 3:05 PM

David, do you think the new SC with Alito replacing O'Connor will reverse Kelo?

Posted by: erp at January 21, 2006 3:16 PM

O'Connor dissented in Kelo.

Posted by: David Cohen at January 21, 2006 3:25 PM


They shouldn't have civil rights--they aren't people. But Bills of Attainder were classically those passed to effect just one person or group--shouldn't be hard to argue they're an affected group.

Posted by: oj at January 21, 2006 4:29 PM


Of course they can do it if they fairly compensate Wal-Mart for its costs--doesn't make any sense at all at that point.

Posted by: oj at January 21, 2006 4:31 PM

David - Kelo gives us the same property law as Communist China. Shouldn't we be obsessed?

oj - AOG has the right tack - it's an unconstitutional taking of Wal-Mart's property.

Posted by: pj at January 21, 2006 6:43 PM


It's only unconstitutional if you don't compensate them fairly.

Posted by: oj at January 21, 2006 7:23 PM

Just have Wal-Mart end their policy in Maryland of hiring older workers who've retired from previous jobs but want to remain active, in order to focus on younger workers who need less health care, and let the seniors direct their wrath at the state legislature for taking away their job opportunities.

Posted by: John at January 21, 2006 8:20 PM

pj: Our eminent domain law is rotten in many ways, but that's got nothing to do with Kelo. Kelo just confirmed what everyone thought the law to be. New London is hardly the first city with a redevelopment authority and Ms. Kelo's house is hardly the first nice house to be taken in a "blighted" area. Urban renewal and redevelopment authorities are bad ideas, and often corrupt, but that's been true since they first appeared. Springfield, MA, my home town, was mortally wounded by urban renewal four decades ago and is only now getting around to dying.

That people are up in arms over Kelo and never mention Midkiff is one of life's own mysteries. That they point to O'Connor's dissent, in which she clearly thinks that Midkiff is good law, as some libertarian masterwork is just perverse. As is so often the case, truth is to be found in Justice Thomas' dissent. Justice Thomas' doom is to be our modern Cassandra.

The other thing that baffles me about Kelo is the horror libertarians seem to feel because the land is being taken in order to be sold to a private party. Is state ownership really the dividing line between a permissible taking and an impermissible taking? We don't want the state to allow privately owned highways, or (gak) trains? It would be perfectly alright to turn Ms. Kelo's house into a marina or research park if only the state holds onto the title? And that's the libertarian position? Libertarians ain't what they used to be.

Posted by: David Cohen at January 21, 2006 9:15 PM


Thanks for the info -- I was always under the impression that a bill of attainder only referred to a specific individual.

So, the million-dollar question is this: Is it still a bill of attainder if it is obviously intended to affect only one party, even though said party is never mentioned by name?

Posted by: Matt Murphy at January 21, 2006 9:39 PM

Here's Madison in Federalist 44:

"Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and lessinformed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. The prohibition with respect to titles of nobility is copied from the articles of Confederation and needs no comment."

And US v. Brown seems helpful to Wal-Mart:


Posted by: oj at January 21, 2006 10:40 PM
The other thing that baffles me about Kelo is the horror libertarians seem to feel because the land is being taken in order to be sold to a private party. Is state ownership really the dividing line between a permissible taking and an impermissible taking?
No, not in the ilbertarian view. However, takings for private purposes are viewed very differently for two reasons.

If takings are limited to direct government purposes, then the amount of taking is also quite limited. There's just so much a government can do on its own. However, once you permit private to private, the trickle turns in to a flood and there are no longer any limits.

Additionally, if one is trying to defeat takings politically, the fact is that private to private takings are enormously more unpopular than government takings among the general citizenry. Therefore, if you are trying to taint all takings, this kind of taking makes a handy brush to tar the entire concept.

Posted by: Annoying Old Guy at January 21, 2006 10:41 PM


No limits? That would explain the flood of takings since, right? Governments aren't going to take enough from us in taxes to exercise their rather meager takings power much and they fear voters too much to use it much.

Posted by: oj at January 21, 2006 10:46 PM

But ... but ... but (he sputtered) why Kelo? Governments been doing this for 100 years. The train lines were built by, in part, government taking land and turning it over to the trainline -- or just giving the power of eminent domain itself ot the private party. The land for the World Trade Towers were taken by the state of New York in order to lease (in part) them to private companies. New London wasn't doing anything that 100 cities hadn't already done.

For G-d's sake, in Midkiff the legislature took property from one class it didn't like (landlords) and gave it to another class it liked better (tenants). Why? Cause it just didn't like concentration in land ownership, with half the land in the state owned by just 72 entities. Who owned the other half? Just 2 entities, the State of Hawaii and the United States.

Posted by: David Cohen at January 22, 2006 12:00 AM

My whole problem with Kelo is that it was not a blighted area. The city even admitted that it was not a blighted area.

If you are justified in taking for private corporations to build up a tax base and the property you are taking is not blighted, then I think you really need to rethink what you are doing. In the case of Kelo their reason for the taking, the Pfizer campus had already been built elsewhere. At that point their taking was to put up yuppie facilities in place of lower middle class, well cared for homes. That strikes me as not being a good use of the eminent domain laws. It has also opened the floodgates for communities all over the country to use eminent domain to upgrade their tax base without regard for the people whose homes they are taking. I would also very much doubt that the governments are paying a fair market value for the homes so that the people losing their homes will be able to purchase replacements. In particular in Connecticut with the high cost of homes and the fact that these people have lived there for so many years I would bet that New London won't compensate the owners to the degree that they will be able to purchase homes close enough that they can live without a major realignment in their lifestyles. I also read that the developers are staying away in droves because the publicity of Kelo is so bad that they fear they will not be able to get tenants or purchasers to buy the properties. That means that New London will have dispossessed the current owners and not get new owners so the city will be stuck with these properties and no taxes coming in. Serves them right IMNSHO.

Posted by: dick at January 22, 2006 12:33 AM

The city said that it was an economically distressed area and the Court deferred to that finding. The Court said, and this is clearly correct, that economic development was just as much a public purpose as a number of reasons for takings they had previously affirmed. The Kelo opinion, discussion these issues, is here. While I would be perfectly happy with the rule that the plaintiffs argued for in Kelo -- that economic development was not a good reason for a taking -- there was nothing new about the Court's decision. Moreover, let's not kid ourselves. The neighborhood is no great shakes. Here's the site. The Kelos live on East Street. The portion to be developed is east of the railroad tracks (it is, literally, on the wrong side of the tracks).

Posted by: David Cohen at January 22, 2006 12:51 AM

There's a city in OK that's Keloing a church.

Posted by: Sandy P at January 22, 2006 12:55 AM


Not a good use is not unconstitutional.

Posted by: oj at January 22, 2006 7:36 AM

On the bright side, no eminent domain, no highways.

Posted by: oj at January 22, 2006 7:37 AM

There is not much difference between this and minimum wage and Family & Medical Leave laws--except those are broad-based and this law is targeted at one entity. The Founders banned such laws because they understood the unfairness of the entire power of the state being brought to bear on one party. Yes, you may safely regard this as a Bill of Attainder.

The Constitution also mentions Attainder in connection with treason, banning 'Corruption of Blood'in those cases. We of course, have a phrase for 'Corruption of Blood'; we call it 'Affirmative Action'.

Similarly, the Takings Clause was designed to protect individuals from an overweening state. The problem with 'Kelo', aside from the small matter of being a Constitutional Amendment passed by just five people, is this; it turns the clause exactly on it's head.

It is no longer a limit on government, but a license for government. It becomes up to the individual to prove to the state that he is using his property in the most productive way in order to justify his continued ownership. That's a bunch of bolshevik.

The problem is not so much that it empowers corporations, but that it empowers governments first. Public Use is one thing; but "public purpose" is another thing. In fact, it's everything; Bad Hair-Day prevention is a "public purpose". There is no end to "public purposes".

And as Justice Thomas noted, if 'public use' is that fungible, then so is 'just compensation'.

Posted by: Noel at January 22, 2006 10:23 AM

Which makes it completely different.

Posted by: oj at January 22, 2006 11:08 AM
No limits? That would explain the flood of takings since, right?
And the lack of a flood of illegitimacy in the first few years after the introduction of the welfare state shows that there was no connection either, right? Because we all know that societies and governments instantly respond to changed incentives, so no instant response, no connection. Thank you for clearing that up.

In any event, my main point (with regard to Mr. Cohen) is that if even if you object to this kind of thing in general, it is good tactics to pick battles that are more likely to garner the support of outraged citizens.

Posted by: Annoying Old Guy at January 22, 2006 11:18 AM

Societies don't. Rapacious governments do. We don't have one.

Posted by: oj at January 22, 2006 11:25 AM