A Stitch in Haste

I want to follow up quickly on my previous post regarding the "War on Wal-Mart" in order to make a slight cognitive leap.

The Wall Street Journal ($) has an editorial today on the lawsuits in Maryland and Suffolk County, New York, by a retailer trade association, challenging laws that single out Wal-Mart by requiring it and it alone to spend a minimum amount on health care benefits for its employees --

It's unfortunate that so many companies now feel compelled to go to court, although it's hard to see any alternative when politicians enact punitive laws designed expressly to make companies less profitable and competitive. The Suffolk County Legislature was warned in a public hearing that its mandate likely violated federal laws; it passed it anyway, 17-1. Maryland legislators appear to have written their law in a cagey attempt to evade Erisa rules. Supporters argue that since employers have a "choice" between providing the new benefits or paying the state a fine, the law is not really a health-care mandate. The courts may question how much of a "choice" that really is.

I of course agree completely with the Journal in this instance. I just find it astounding — and annoying — that this same editorial board has no compunction whatsoever opposing "activist courts" and praising "federalism" and "legislative supremacy" when it comes to gay marriage. Retailers get to sue, in defiance of "the will of the majority," for fair and equal treatment, but gays don't? How does that work? If the Journal is going to have a double-standard, then they could at least try to be a bit more subtle about it.

Judicial review is either a valid endeavor or it isn't. Courts are either "co-equal" or they're not. Federalism is either checked by the Fourteenth Amendment or it isn't. Unbridled majoritarianism is either an illegitimate political worldview or it isn't. Minorities either have fundamental rights that transcend the will of the majority or they don't. One believes in the system as a whole or one doesn't.

"Judicial activism for me but not for thee" is hardly a coherent (or, I might add, a conservative) political viewpoint. One would expect more from the Journal.