Saturday, May 28, 2011

The problem with "illegal" intentions

The NLRB is trying to prevent Boeing from opening a new factory in South Carolina. It claims that Boeing is retaliating against unions at its plants in Seattle, Washington.

Much has been said about possible economic consequences if this action against Boeing is successful. Nobody, however, is commenting on an even more disturbing aspect of this development. Even the NLRB does not claim that Boeing’s action of building a factory in South Carolina is illegal. Its decision rests instead on its claim that Boeing’s motivation or intent for doing this was illegal.

Personal liberty is extremely insecure if government can make an otherwise legal action illegal because of our motive for taking it. Intent is subjective and cannot be physically observed. If officials can decide what our intent was, and punish us if they decide our intent was bad, there is no limit to how highhandedly government can treat us.

By its very nature law must be general rules of action laid down in advance. Actions can be observed by people who can testify, thus minimizing subjectivity. And with genuine laws people can protect themselves from punishment by avoiding prohibited actions.

Rules punishing bad intent are pseudolaws, not laws.

The latest NLRB action represents another step in a trend to make an actor’s intent the key to whether it has acted illegally. This process got its start when the National Labor Relations Act was enacted in the 1930s. Employers were still free to fire employees, but if their motive was to discourage unionization firing was an “unfair labor practice” and was illegal. This unfortunate development, however, affected only a small part of American society at the time.

The big upswing in outlawing intentions came when the Civil Rights Act of 1964 outlawed racial discrimination in employment. Employers were still free to hire and to fire, to promote and demote, but if their intent in a particular case was based on race, it became illegal. Few people noticed that discrimination is not an action, but a reason for, motive, or intent in acting. As such, it suffers from all of the problems already noted.

It was easy to overlook the fact that a fundamental legal principle was being trashed—this time on a very broad scale-- because the intent or purpose of the Civil Rights Act of 1964 was so clearly proper!

The idea that intent can determine legality has constitutional roots. Courts must determine whether the federal or state governments have jurisdiction to make various laws. The concept that the purpose of legislation can determine who has jurisdiction to enact it (and thus, whether it is constitutional or unconstitutional) offers a tempting analogy to make the legality of actions in general depend on their purpose.

But we jumped the rails in extending the use of purpose from mere determinations of governmental jurisdiction to decisions like today’s NLRB attack on Boeing. Things have now gone too far, and we need to step back.

This column has run in the Daily Telegram (Adrian, Michigan).

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