This is not a phenomenon unique to California. But it is all too common in California politicians' mindsets. That is, find an employer-enemy and craft specific legislation to harm them. In this case, the California Legislature just passed a bill to target Wal-Mart. Why? Because:
"Clearly, Wal-Mart in particular has been using its money and influence to try to influence local government decisions," said the bills' author, Sen. Richard Alarcon.
The state has an interest, he said, because "Wal-Mart is the most egregious offender when it comes to having employees use public assistance - in fact, training them to apply."
So, liberals set up a system where government can--and must--be lobbied by special interest groups. Then they complain that a group uses "its money and influence to try to influence local government decisions." I'm shocked, shocked, to find lobbying going on in government. So do they write a bill to reform lobbying? Do they craft a bill targeted at any and all employers that encourage their employees to use public assistance? No. This bill does not address the issue Sen. Alarcon raises. Thus, the author admits he designed the legislation to be punitive. He never even says Wal-Mart is violating the law in encouraging its employees to use the very assistance he votes for, nor does he say they've lobbied illegally. This is simply punishment for a group he doesn't like. Is that the right use of law?
Lets take a step back and look at how law can, and should, be used. Keep in mind James Madison's concern about "factions" in Federalist No. 10:
a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.
Madison did not think the system should award the favorites and punish others. Law is supposed to further the "permanent aggregate interests of the community" and not be "adverse to the rights of other citizens." Well how can that be done? The same way it is in everyday life, by agreement.
Think of a contract between two parties. They enter into a deal because it is beneficial for both sides. I want a new pair of shoes, a shoe seller wants $100. I decide that $100 is fair, we agree to a trade--the deal is done. Both sides are satisfied.
Now think of law as a large-scale contract, or deal. I don't want to be murdered, you don't want to be murdered. So we sign a contract not to murder each other. To be effective, we need to make the deal with everyone. But the transaction costs and enforcement costs of our making that deal with every citizen is outrageously high. I can't go around and get all 300,000,000 citizens to sign the contract. Enter the goverment. The government passes a law that we can't murder each other. Essentially, what has happened is that the government imposed a deal on us. But, and this is the critical point, it is a deal that benefits the interests of the community, not one group over another--and we'd all agree to it.
Now, Sen. Alarcon might argue that his "deal" benefits the community. But it is not a contract that everyone would sign if given the chance. The way to analyze if a law is fair, and I'd even argue constitutional, is to determine if you would enter into such a deal before you knew which party--which "faction"--you would be. This is an "ex ante" approach. In the case above, would you agree to Sen. Alarcon's deal BEFORE you knew if you were to be Wal-Mart or the local government body?
As some of our parenting scholars know, the best way to get your kids to perfectly cut pieces of cake is to do the following: Give one kid the knife and tell him that he gets to cut the cake into two pieces. But then tell him that his sister gets to choose the piece she wants to eat first. The result, perfectly even pieces of cake!! NASA scientists could not create pieces more evenly cut.
The same can be true for law. Put yourself on both sides of the deal, the law, before it is done. Does it seem reasonable? What if you are Wal-Mart in 2006 in California (Alarcon's law)? What if you are an African-American in the South in the 1950's (Jim Crow laws)? What if you are a beer drinker in the 1920's (Prohibition)? In these examples, one group got a terrible deal under the law and nothing in return. This is not how deals are done or how contracts are made. Nor should it be the way law works.
To avoid the factions Madison feared, we must not let the powerful--Senator Alarcon and his anti-Wal-Mart buddies--take out venegence on a disfavored minority under the color of law.
Thomas More
Excellent blog. Through some egregious oversight of the Church, I have never been canonized, but I am of like mind. ;^)
Cheers
The Musical Monk
Posted by: Hucbald | September 01, 2006 at 04:24 AM
Hucbald,
Thanks for the kind words on our blog. We hope you continue to enjoy it and join the discussion.
As for the Church's oversight, I cannot explain that--other than to offer a paraphrase of Monty Python:
"You're not dead yet!"
While this might offer you some temporal relief to your "non-canonization" situation, it doesn't solve the problem. If, however, you are dead and commenting from the grave, I'll be happy to send an email to the Vatican on your behalf!
As for the original Hucbald, I wonder, are you a fan of Arnulf of Soissons?
TM
P.S. It is not often that you get to mention Monty P. and Arnulf in the same post. Wonderful.
Posted by: Thomas More | September 01, 2006 at 07:37 AM