In our previous post, we shouted out Donald Kochan’s paper on the history of the Takings Clause, available here via SSRN. His work poses an intriguing and important question: From a consumer or marketing perspective, how should we label the various protections and rights set forth in the Constitution, with reference to the right being granted or with reference to the power being controlled? For example, according to Professor Kochan, the Takings Clause, which prohibits the government from taking private property without paying just compensation, was not actually called the “Takings Clause” by any court before 1955 nor did any justice of the U.S. Supreme Court use the moniker “Taking Clause” in any opinion before 1978. So, why don’t we refer to this protection of property rights as the Keepings Clause instead of the Takings Clause? Prof Kochan’s academic article applies interdisciplinary insights regarding the power of “framing”, including the study of consumer products labeling in marketing and advertising. Below the fold is an excerpt from the abstract of his paper:
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.