Splitting the Atom of Property : Rights Experimentalism as Obligation to Future Generations

Property is surely among the U.S. Constitution's principal objects of protection. As a right, though, property is jurisdictionally complex. The underlying law defining property can always change, making the constitutional protection of property inherently indexical, like the words "here" and "now." Not surprisingly, the factors and tests the Supreme Court employed throughout the twentieth century not only failed to capture an essence of constitutional property, they failed to guide legal actors on what should be protected to owners against official action. Without some broader unity of purpose, however, the interpretive diversity stemming from this lack of guidance is going to waste. It is depriving owners of their security but is not contributing to any deeper, more meaningful consensus on property as an institution. If we are serious about leaving future generations their due, this ought to change and change quickly. Ultimately, I argue that constitutional property, perhaps more than other basic rights, demonstrates the utility of viewing rights as placeholders-social expressions of confidence in the right holder's judgment within the confines of their right(s) - but not as trumps over social coordination or planning. A more probabilistic and institutionally informed approach to the content of constitutional property could, I argue, help future generations avoid the traps we now know exist in rights adjudication. To that end, I suggest some (modest) methodological improvements in judicial opinion writing as a discrete domain of practical reason