Means relate to ends
A State is a nexus of powers. That is, a State is an organization characterized by its power relations among various entities: citizens or subjects, rulers, interest groups, foreign persons, foreign States, international bodies, local and state governments, etc.
The distinctive power relations or features of a given State that set it apart from other States depend on its ends. The chosen ends link back to and influence the State’s particular set of observable power relations. For example, if a State chooses to make war, it requires a means to do so. Then it seeks certain power relations. It might seek a secure tax base, or control over a fiat currency, or an ability to conscript its citizens, or an ability to suppress dissenting speech.
One can also argue that a State chooses means of power and then justifies them using ends. That argument really says that power is chosen by the State for its own sake. That argument is not pursued here.
Eminent domain example
The recent eminent domain decision of the U.S. Supreme Court provides a good example of how the means of power are shaped to conform to the chosen ends. This decision shows that an end has been chosen, declared, or reaffirmed by the State (or at least one organ within the State.) The term "reaffirmed" applies, since this end is "a traditional and long-accepted function of government" according to Justice Stevens. The end is "economic development," also stated as jobs creation or tax revenue enhancement.
Once such an end as economic development is recognized as being part and parcel of "public use," then it is logical to expect the State to adopt a means of power to achieve that end. The means chosen in this case is that the State has the final decision rights on who shall own a piece of property.
Prior to the Court’s ruling, two processes for transfer of private property existed. First, the State could seize private property through its eminent domain power. This power relation was a means to the end of using that property for a public use. Second, a private buyer could use a private bidding process or negotiation to buy another person’s private property. In other words, individuals used a private market to transfer private property without State involvement. There is now a third process. A private party may obtain another’s property through the State’s eminent domain power if the economic development end is fulfilled.
The scope of the State’s decision rights over private property has thus been enhanced. Paul Craig Roberts is correct to say that the demand for takings will be greater. The market for private property has been altered drastically because private decision rights over disposition of private property are now infringed by the ability of others to take the property under circumstances that were previously not recognized or enforced by the State’s power. As Roberts noted, there is now "another avenue of payoffs to public officials." There is also an incentive to exploit that avenue that did not previously exist. Hence the number of takings can be expected to rise for that reason too.
The main point is that the end chosen by the State ties back to particular means that involve power relations. The projects of a State are what it expends taxpayer or citizen resources on. These are means selected to achieve some ends. These projects include items like war, trade pacts, alliances, treaties, domestic programs, etc. The ends of the State drive the means.
Notice that some projects of the State bring a return to the State. For example, the State may deliver an agricultural support program. The return might be campaign contributions and votes. Costs might include contributions lost and votes lost among those who do not like the measure.
If economic development is a State aim, as Justice Stevens says, does that imply that any and all means are acceptable to achieve that end? For the U.S.S.R., the answer was basically "yes." For the U.S., it will be found that various ends sometimes come into conflict. The Constitution can cause this to happen. For example, if the U.S. were to assign individuals to particular jobs, that means would conflict with the end of protecting individual rights to liberty. It would conflict with the 13th Amendment outlawing slavery.
However, the U.S. nationalized the railroad industry during World War I. It has conscripted individuals despite the 13th Amendment. The U.S. has set wages, prices, rents and hours worked. It has created safety and innumerable other regulations. The U.S. subsidizes all sorts of research, industries, and programs in the name of economic development. In most of these cases, the conflict of Constitutional rights with the end of economic development has been settled in favor of development. Given the fact that all these uses of power actually undermine economic development, the real end of these projects is probably the return to the rulers (in money and votes) that is achieved by providing taxpayer resources to special interest groups.
There are very many instances of the end-means linkage, where the means chosen is always a power relation.
If the State makes its end an educated child, then it will use means such as the "no child left behind" policies or laws dictating the number of years of education of each child.
If the end of free trade is thought to be a State prerogative, then it will use treaties and agreements as its means, and these will impose measures on the citizens.
If the end is equality, then the means chosen might be wealth redistribution, progressive income taxes, subsidies, etc.
If the end chosen is an end to drug use, then the means chosen will invariably involve the use of power to extract and expend resources. Drug users will find their rights entirely abrogated. They will be imprisoned in many instances. The means will be found acceptable if the end is accepted.
If the end is economic development, then one cannot easily condemn the State’s taking over some company or industry. In fact, the British nationalized many companies.
If the end is "lebensraum," then a variety of expansionist means can be advocated.
If the end is purification of the Aryan race, then genocide of non-Aryans can be advocated.
Evaluating ends and means
Where do the State’s ends come from? They come from all sorts of sources, from the people, from specific interest groups domestic and foreign, from opinion makers and molders, and from the State’s leaders and rulers. The ends may be listed in a Constitution or similar documents. However, no matter where they come from, the rulers choose them and implement them through means of power.
A State is unlike an individual. For us, the end can never justify an improperly chosen means. We cannot rob to further the education of a child. For a State, the ends often seem to or are thought to justify the means. At least there are many who are busy trying to show that the State’s ends justify its means.
In evaluating the State’s ends, I tend to use two criteria: justice and furtherance of life, and I view the State’s ends as wrong on both counts. I argue that the State does wrong things ethically by limiting individual life, liberty and the pursuit of happiness; and it doesn’t even achieve, indeed cannot achieve by its very nature, the good ends that it seeks to achieve. Furthermore, its incentive structure is such that its destructive acts multiply.
As the examples illustrate, the enormous losses of liberty that arise when the State uses its powers flow from acceptance of improper ends. The powerful means that are used are often supported by many citizens who view the ends as proper. The educational challenge facing libertarians is to persuade people that most of the State’s ends are wrong ethically and counter-productive in practice.
However, many students of politics evaluate the State in terms of whether or not it is a legitimate arrangement. Although this social contract approach can become more hypothetical and complicated, even unrealistic, it is popular and does tie back to justice, so I will discuss it a bit.
A State is legitimate (or legal) in the contractarian view if there is a consensus to support its ends (and thus the means chosen.) Contractarians differ on the nature of the supposed consensual agreement.
I dislike this approach for several reasons. First, legal justification based on what people regard as good for them or what they assent to is not equivalent to ethical or moral justification. The majority may think that it is both good and legal to eradicate poverty by State programs, but that does not make it good or right. Second, who is to identify this consensus? It apparently must be left up to the rulers, but they have an incentive to abuse such a power. Third, what persons are the rulers supposed to listen to? Different people have different opinions from time to time. Many are silent. Fourth, there is no rule of aggregation over preferences. This leaves it open to rulers to interpret opinion the way they want to. Fifth, the opinions expressed by the public can be fickle and noisy indicators of what they actually believe. Sixth, the whole approach seems to justify the State by suggesting that if it exists, there must be a consensus for it. It places secession by a minority, for example, beyond being a legitimate aim. My criticisms are not the standard ones, but then I’ve never taken a course in political science or political philosophy.
The most important objection may be the first one, that consensus does not determine what is ethically right. The alternative to this approach is that of natural justice and natural law. That which is legitimate arises from that which is lawful in the sense of natural law. The libertarian non-aggression axiom stems from this source.
Limitation of ends
The use of power as the means to achieve improperly chosen ends always violates rights. If the State robs to educate a child, it violates the rights of those it robs. If the State seizes property for economic development, the likelihood of just compensation is small; or else the property owner would have sold out already to the developer. If the end is no poverty, the State is a poor means to achieve it. If it is given that end, it must use power; but then it will violate property rights and injustice will multiply.
Unless ends are severely limited, the State has an incentive to select ends of its own that find enough public support so that the means chosen, which involve power, are acceptable. Once these means are in place, they often stay in place and the State’s power grows. Choosing a popular war has been the most common way to enhance State power. Although rolling back State power does occur, it is often a lengthy process. Meanwhile much harm is done.
The U.S. Constitution by seeking to "establish Justice," by enumerating State powers, and by the presence of the Bill of Rights looks like a document whose primary end is the protection of individual property rights. This was a good development in human history. However, its other ends of order ("domestic Tranquility"), a "common defence," and the "general Welfare," unfortunately can come into conflict with that of justice. Similarly the enumerated power of Congress "to regulate Commerce" among the several states conflicts with establishing justice, inasmuch as the State has been given wide latitude to infringe rights.
If the Founding Fathers had limited the ends of the new American State and been more careful with the enumerated powers, history might have turned out quite differently. If they had made the right of secession explicit, history would have been considerably different. Let us hope that the generations to come will understand that a proper end is the protection of property rights and will find better ways of achieving that end than a defective Constitution.
For those who are of a mind to produce a new and better constitution, if the State could be held to the sole end of the protection of individual property rights, then its scope of allowable means would become restricted. Enumeration of powers also is required directly to limits mean. Otherwise the State can absorb resources in the name of protecting rights.
If further ends are mentioned such as national defense, then there has to be language that addresses the resolution of conflict among ends. If rights are ever to be suspended, then language concerning the authority, means, and temporary duration, etc. has to be included. Otherwise, the door is open to abuses like the proliferation of Presidential Executive Orders that can create a dictatorship in the U.S. overnight.
The more one envisages a State held to a limited end by various control mechanisms, the closer one comes to anarchic self-government in which the citizens are able flexibly to withdraw or provide resources to those competing entities that are best protecting their rights.
The notion that ends and rights are determined by a societal consensus is deadly to any written Constitution. Once that idea is followed up, the suppression of rights is bound to occur. For example, if equality comes to be viewed as a right by citizen consensus although it is not in the Constitution, then it is bound to create conflict with property rights protection. And if a Constitution is written like the EU Constitution with a laundry list of conflicting ends and no guidance as to how to reconcile them, this is an open invitation for the rulers to make arbitrary decisions.
The notion of a living Constitution presumes a societal consensus on the appropriate ends of the State. By multiplying the ends of the State, this idea comes to destroy individual rights and the original Constitution.
Furthermore, the living Constitution idea is deeply flawed because the Constitution contains a mechanism for its own alteration. To neglect that mechanism or make end runs around it by means of the Court’s subjective interpretations of a supposed consensus is to trash the document. If the Supreme Court can interpret the Constitution as a living document, then any end can be chosen simply because a few rulers (on the Court) declare it to be an appropriate end. Since each new end implies new means and uses of power, the result can be dictatorship, fascism, oligarchy, or other corruptions of the original American ideal.
A State that was true to the end of establishing justice would protect individual property rights, not undermine them at every turn. If such a State were possible, it would look very unlike the modern State.
Michael S. Rozeff [send him mail] is the Louis M. Jacobs Professor of Finance at University at Buffalo.