Livia: Ripstein and Eminent Domain

By

 

As I was reading Force and Freedom by Ripstein, and more particularly his account on public roads, the issue of eminent domain—the right of a government to expropriate private property for public use, with payment of compensation—kept popping up within my mind. Within Chapter 8, “Roads to Freedom”, Ripstein argues (through the use of Kantian philosophy) that the state “has an obligation to provide roads on terms consistent with the freedom of its citizens” (254).[1] Through providing roads, the state secures a public precondition for private freedom as public roads help rectify issues which emerge from private lang ownership and make private interactions rightful. One of the most prominent issues that arise from private land ownership is the impedance of individuals’ ability to enter into voluntary arrangements with one another. Public roads guarantee “that there is a path from every piece of privately held land to every other” such that everyone can enter into voluntary transactions with whomever they wish (248).

While public roads may rectify some of issues which emerge from private land ownership, it is hardly a simple solution to a difficult problem. As Ripstein acknowledges, roads do not simply emerge. They must be designed, funded, constructed, and maintained. And there are times, in which the government must simply take away the private property of an individual in order to establish conditions which secure private freedom. My question for this blog post is whether Kantian philosophy justifies eminent domain by the government in order to build public roads?

Initially, it appears that the government taking someone’s property and compensating them for it, is justified. When the government seizes an individual’s private property, the private property now serves a public purpose (and use), and this public purpose ensures private freedom and rightful conditions. However, the past practice of eminent domain makes this justification more difficult to swallow. Historically, the government’s practice of eminent domain has been abusive towards underrepresented communities in towns of lower socio-economic status. Often, the government has elected to build public roads through underserved communities, eroding culture and displacing people who cannot afford to move. While the ultimate purpose of public roads may be necessary, the means by which governments help to establish them is sometimes problematic.

(Additional note)

When I was first reading Ripstein and considering how Kantian philosophy might justify problematic eminent domain practices such as the Supreme Court Case Kelo v New London, I was quite worried. In this case, the court ruled that the city of New London could take away private property and sell it for private development. The court believed that the city’s seizure of the land was justified because it did so to promote economic development for the city (thus meeting the “public use” requirement of takings clause in the Constitution). In this particular case, the government’s taking of private property hardly seem justified as it generously stretched the public use meaning within the Constitution and legitimized governmental manipulation of the private market (or the private market manipulation of the government). After reading Ripstein, I was worried that the government could use Kantian philosophy to justify their actions in this case.

However, upon further reflection, I recognized that the benefit/burden argument which the government used to support their actions is inconsistent with Ripstein’s approach to demonstrate how governmental action to provide public roads in necessary in the establishment of a rightful condition and enabling of private freedom. In this case, the government demonstrated the economic benefit that their actions served despite the small burden it placed on a singular individual. As Ripstein notes, the role of the state is not an “open-ended mandate to establish efficient or fair allocation and burdens”. The state simply has an “obligation to provide roads on terms consistent with the freedom of its citizens” (254).

 

 


[1] Here, freedom is defined as “the independence from being constrained by another’s choice insofar as it can coexist with the freedom of every other in accordance with a universal law” (241).

Comments

  1. Henry LongMarch 20, 2023 at 9:13 PM

    I think that Kantian philosophy would justify eminent domain insofar as the burdens it produces are equally distributed. As Ripstein writes, "The mandatory character of such cooperation generates a presumption in favor of an equal division of its burdens" (Ripstein 258). Thus, eminent domain can be justified as long as the burdens it produces are reasonably evenly spread among the population.

    ReplyDelete
  2. Paul HurleyMarch 20, 2023 at 9:32 PM

    Livia, your note is exactly right. The only reason the government can exercise eminent domain is to secure the conditions of equal individual freedom. Takings to promote overall benefit would be using some people as mere means to promote social goals. Only takings that are necessary to secure the conditions of equal individual freedom are justified, and only if they are carried out in accordance with the conditions of equal individual freedom, as rendered determinate by the omnilateral will. Ripstein would absolutely reject the rationale for takings offered in Kelo v. New London. Notice that this is also why Ripstein rejects public goods justifications. Public goods secure overall efficiency, but do so, on Ripstein/Kant's view, by violating the conditions of equal individual freedom -- harnessing some people's property to secure aggregate benefit. But aggregate benefit does not justify the violation of equal individual freedom on the Kant/Ripstein view, any more than my benefit would justify the violation of equal individual freedom, or the freedom of any particular individuals. Awesome post!

    ReplyDelete

Post a Comment

Popular posts from this blog

Global Racial Empire vs Materlialism (marxism)

By Anonymous
In reading Taiwo's Reconsidering Reparations  I was reminded quickly of reading about materialism in Marx's The German Ideology . Marx built a framework that viewed nearly every aspect of society, from basic family dynamics to tools to language to industry as a result of humans fulfilling their material needs. Taiwo cites author Charles Mills who argued for a framework of "global white supremacy" as a political system  that results from the fact that "the world has been foundationally shaped for the past five hundred years by the gradual consolidation of global white supremacy" (25). Taiwo goes on to say that his book agrees with this theory.  I do not object the the fact that global white supremacy has affected nearly the entire world. It has been a phenomenon that has shaped the global power structure, allowed those in power to gain wealth, and subjugated millions of people.  Though, I do think an important nuance could be clarified. I notice that subjugat...
Read more

Livia: Táíwò and Economic Success in the Global South

By
  Reconsidering Reparations by Professor Olúfẹ́mi O. Táíwò illuminates the large extent to which racism and colonialism played in creating the current global economic structure, in which the global north dominates the global south. Additionally, this book highlights how current policies implemented by global institutions such as the IMF and the World Bank have further strengthened and reaffirmed this positioning. Taking into account this global historical perspective, we can better understand how “consequences flow from some other parts of the world to other parts, often across national borders, and in ways that complicate geographically and politically narrow ways of thinking about reparations” (24). Thus, some sort of international obligation of social justice must be exist. Táíwò’s emphasis on the role that slavery and colonialism played in establishing the current economic order makes me think about the signal which this sends to the Global South in the development of their p...
Read more

Carlos: Response to Henry's Conclusion

By
I've spent way too long trying to argue against Henry's point because it just seems wrong to conclude with "there is no current social framework by which we might call their lasting effects socially unjust–at least under the political conception of justice". Yet, the more I thought about it, the more I felt I had to agree with Henry's argument regardless of how strange it felt to do so. Still, I did have a few ideas as I was thinking of how to refute Henry's conclusion: -------------------------------------------- 1) With the hypothetical situation Henry provides, if we were to fully extend its logic to our current world, I think Prof. Hurley would have also created a division between the A and B group that would have maintained even into Tuesday. I think were that division were to have taken place, even after Prof. Hurley disbanded the government, the division would have remained and the hierarchy of power would continue into the rest of the week. It seems fa...
Read more