The <s>[Takings]</s> Keepings Clause: An Analysis of Framing Effects from Labeling Constitutional Rights

Abstract

Did you know that the “Takings Clause” was not called the “Takings Clause” by any court before 1955? That was the first time that any court of any jurisdiction referred to the provisions regarding takings of private property in either the federal or state constitutions under the label “Taking Clause.” Did you know that justices of the U.S. Supreme Court did not use that moniker “Taking Clause” in any opinion before 1978? Given this history, the phrase “takings clause,” whether an apt descriptor or not, certainly cannot be justified as the dominant way to refer to these provisions by contemporaneous usage at the Founding nor by the weight of time. This Article gathers and analyzes originally compiled data sets on the usage of labels for this provision across time in court opinions, scholarship, and elsewhere. Acknowledging the fact that the label “takings clause” is of relatively modern invention, this Article questions its reign and evaluates the impact of such a “frame” for the rights protected. When framing what is supposed to be a constitutional protection by reference in its label to the power controlled, rather than the right granted, the rights’ component of the provision is diminished. For example, we do not label the rights to freedom of speech or press in the First Amendment as the “Censorship Clauses.” We call them — quite appropriately with deference to the rights and with a presumption against their infringement — the “Free Speech” and “Free Press” clauses. This Article posits that the provisions regarding eminent domain are really about respecting means by which individuals can protect their right to keep property, against a backdrop where individual owners normally retain a right to refuse to sell property. As such, it wonders whether “The Keepings Clause” might be a better alternative label. In the process, the Article applies interdisciplinary insights regarding the power of “framing,” informing our understanding of law in new ways from the fields of psychology, linguistics (including semiotics and cognitive linguistics), and the study of consumer products labeling in marketing and advertising. (That last category is particularly unique; strikingly little scholarship exists applying the expertise of marketing scholars to understand law and legal institutions.) How we frame something affects our impressions of it, our expectations toward it, and our concept of its boundaries and scope. When we frame something in terms of power — like the Takings Clause — we provide greater legitimacy for that power and its exercise and we are likely to tolerate more of it across a wider scope. Conversely, when we frame something in terms of the rights protection — like with the “Keepings Clause” — the presumption begins with an expectation of keeping and erects a higher bar for a deviation from that position. Anyone who cares about constitutional rights will find transferable lessons in the work. Seeing how framing operates with the property protections regarding eminent domain in the Fifth Amendment provides lessons on how framing choices for other constitutional rights might affect how those rights are perceived and what level of protection for them is demanded.