BBiinngghhaammttoonn UUnniivveerrssiittyy TThhee OOppeenn RReeppoossiittoorryy @@ BBiinngghhaammttoonn ((TThhee OORRBB)) Graduate Dissertations and Theses Dissertations, Theses and Capstones 2-2017 WWhhaatt''ss ssoo pprriivvaattee aabboouutt pprriivvaattee pprrooppeerrttyy?? Matthew Blake Wilson [email protected] Follow this and additional works at: https://orb.binghamton.edu/dissertation_and_theses Part of the Philosophy Commons RReeccoommmmeennddeedd CCiittaattiioonn Wilson, Matthew Blake, "What's so private about private property?" (2017). Graduate Dissertations and Theses. 21. https://orb.binghamton.edu/dissertation_and_theses/21 This Dissertation is brought to you for free and open access by the Dissertations, Theses and Capstones at The Open Repository @ Binghamton (The ORB). It has been accepted for inclusion in Graduate Dissertations and Theses by an authorized administrator of The Open Repository @ Binghamton (The ORB). For more information, please contact [email protected]. WHAT’S SO PRIVATE ABOUT PRIVATE PROPERTY? BY MATTHEW BLAKE WILSON BA, San Francisco State University, 1989 JD, McGeorge School of Law, University of the Pacific, 1992 MA, San Diego State University, 2008 DISSERTATION Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Philosophy in the Graduate School of Binghamton University State University of New York 2017 © Copyright by Matthew Blake Wilson 2017 All Rights Reserved   ii Accepted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Philosophy in the Graduate School of Binghamton University State University of New York 2017 February 20, 2017 Max Pensky, Chair Department of Philosophy, Binghamton University Anthony Reeves, Faculty Advisor Department of Philosophy, Binghamton University Anja Karnein, Member Department of Philosophy, Binghamton University Florenz Plassman, Outside Examiner Department of Economics, Binghamton University   iii Abstract This work attempts to determine what kinds of institutions—if any—the state should implement to protect private property, and investigates how individuals and communities operating within those institutions ought to behave. Because the laws produced by such institutions may conflict with community rights, social welfare, and justice, the political authorities—including judges and legislators—who operate the institutions must determine whether, and under what conditions, individual property rights ought to prevail over conflicting rights. I argue that considerations of privacy are necessary for making these determinations. Privacy—the condition that requires limitations upon the ability of others to access one’s physical spaces—has normative significance for moral behavior as well as for constitutional law and politics. Privacy’s value is promoted through private property rights, which are themselves shaped by the normative aspects of privacy. Because private property is valuable due to its intricate relationship to the promotion of privacy, states and communities ought to be able to infringe upon private property only to the extent they may infringe upon other privacy-oriented rights and interests. This infringement is encapsulated in the political act of eminent domain (or expropriation), which permits states to take private property for public use. Moral theory clarifies the role of law as political authorities use eminent domain to negotiate between private and community interests. In this work, I describe several such theories and then provide a contemporary property theory that claims the theory as an ancestor. I then ask the following questions: does this property theory facilitate eminent domain—the transfer of property from private to public—or does it make eminent domain more difficult by protecting private property against expropriation? I argue for a private property right that enjoys the same constitutional protection, known as strict scrutiny, as the privacy right, and conclude that the privacy aspects of property are best protected by a takings jurisprudence that   iv restructures the definition of takings based upon a reappraisal of the role of just compensation, a more narrow conception of public use, and a better understanding of how privacy interests can be objectified in physical spaces.   v For my parents.         vi Acknowledgements I am indebted to many for their contributions—direct and indirect, academic and otherwise—to the instigation and completion of this project. My journey to this point—from lawyer to philosopher of law—began with my training as a young lawyer under the mentorship of J. Tony Serra and Randy Daar, Pier 5 Law Offices, San Francisco. Tony and Randy taught me the ropes of criminal defense and the role of the ‘semantic warrior’ in an adversarial system of justice, and their influence continues beyond the practice of law. It permeates into the very marrow of life itself. I owe my gratitude to my advisors, the faculty, and the staff at Binghamton University’s philosophy department for their work on my behalf. To my advisor Max Pensky, I owe a better understanding of Hegel than I would otherwise possess, and my thanks to Max for his insight, philosophical acumen, and his sense of humor. Tony Reeves suffered through a series of shared rides from Ithaca to Binghamton as these and other ideas were hashed out from a mishmash of diffidence and obstinacy on my part, and from wise counsel and a prevailing cooler head on his. Thank you to committee members Florenz Plassman, for his input on law and economics, and Anja Karnein, for her support and willingness to act as reference. Bob Guay, Melissa Zinkin, and Charles Goodman offered assistance, advice, and good cheer. For service beyond the call of duty I am indebted to office administrative specialists extraordinaire Joy Tassey and Rachel Crisman. My immediate family—Mom, Dad, brothers Greg and Brad and their wives Dr. Jennifer Wilson and Catherine—have provided the best love and support a philosophizing lawyer could ever argue for and, somehow, still receive. Thanks are due to my student colleagues at Binghamton, who commented on these thoughts as they were taking shape and provided moral support throughout: Gary Santillanes,   vii Jessica Wielgus, Ryan Felder, Courtney Miller, Gina O’Neill Santiago, and Huseyin S. Kuyumcuoglu. Thank you to Rob Hughes at the University of Pennsylvania for his helpful comments and comradeship as these ideas were presented at the 2016 Central Division meeting of the American Philosophical Association. Irfan Khawaja also commented on my work after the gist of my property theory was presented at the 16th Annual Felician University Ethics Conference. I am thankful to Steven Barbone and Robert Francescotti, my MA advisors at San Diego State University, who guided me towards my first graduate degree in philosophy. Rob has remained a trusted ally and advisor. I look forward to joining Steve and Rob as a professor in the California State University system this year. I am deeply grateful to the professors at Front Range Community College who gave me my first teaching opportunities by trusting me with a variety of classes at the Westminster and Boulder campuses. Mike Coste and Catlyn Keenan are key figures in my development as an educator, and thanks also to Eric Salahub and Alyson Huff—especially Alyson Huff—for assigning me classes at the Fort Collins campus. I learned to be a teacher by emulating your collective dedication to the craft. For one year, after finishing classwork at Binghamton and before moving on to a permanent job, I called the Humanities Department at the US Coast Guard Academy home while completing this dissertation. My supervisors—including Captain Brigid Pavilonis, Dr. Richard Zuczek, and Commander Dave Sherry—were the best a landlubber like myself could hope for. Colleagues Lieutenant Commander Tony Gregg, Dr. Melissa Matthes, and Lieutenant Commander Rob Stiles provided an intellectually friendly environment for teaching law and ethics. All have taught me how to address our very specific cadet student population. I reserve my highest thanks for Commander Russell Bowman, a fellow J.D./Ph.D. who knows all too well the burden of teaching full time while finishing a dissertation, and who went to bat for me as both an   viii academic and professional reference as I ventured upon the dark and stormy seas of the job market. As I have learned: Scientiae Cedit Mare. Thank you Russ and the USCGA. Penultimate thanks are due the various places and locations—both private and public—as well as their staff that provided welcoming workspaces, liquids, and sustenance: Cyber Café West (Binghamton, NY), Gimme! Coffee (Ithaca, NY), Ithaca Coffee (Lansing, NY), and the Mystic & Noank Public Library (Mystic, CT). Thanks as well to the three thousand years of Scottish craftsmanship as perfected on the Isle of Mull, and revealed underneath every corked bottle of ten-year-old Ledaig Single Malt. Wonderfully peated, indeed. Finally, my partner Abby and our loyal canine companion Oskar suffered with me as this paper and my final go-round as a student experienced their inceptions and successful conclusions. We shall continue to test and love one another as we embark upon the next stages of our relationship. I learn so much from you, Abby, and depend upon you to keep me honest and to encourage me to explore my creative side, which is—for better or for worse—not evident in the work that follows. There is so much more to enjoy and create together.     ix