An interesting and thought-provoking new article from Professor Donald Kochan that is definitely worth your time: The
[Takings]Keepings Clause: An Analysis of Framing Effects from Labeling Constitutional Rights, 45 Fla. State U. L. Rev. ___ (forthcoming 2018).
As the title suggests, Professor Kochan doesn't quite care for the phrase the "Takings Clause" when it comes to that part of the Fifth Amendment we like so much. Instead, he prefers "Keepings Clause" because that term better embodies the right protected, and does not focus on the governmental power being exercised.
Best tidbit: the phrase "takings clause" isn't of ancient origin. Indeed, it is pretty modern. (Count us among those who didn't know that.) From the article's Introduction:
It will probably surprise most people that the label “takings clause” is a moniker of modern invention. In fact, the provisions in the U.S. Constitution’s Fifth Amendment that identify the rights and obligations associated with the eminent domain power—so often today labeled as the “takings clause”—had no label attached to them in any state or federal court opinion for more than a century past our Founding. “Takings Clause,” for example, was a label not used in an opinion of a court of any jurisdiction until 19551 and only first used by a justice of the U.S. Supreme Court (in a dissent by Justice Rehnquist) in the 1978 case of Penn Central Transportation Company v. City of New York. In part given that the phrase “takings clause” has no longstanding historical claim to legitimacy, and because the frame created by that phrase does not reflect the reality of the rights protections within the provisions it labels, this Article questions whether there might not be a better way to label the relevant provisions of the Firth Amendment and corresponding state protections. Because what most have so readily and commonly come to refer to as the “Takings Clause” is less about the government’s power to take than it is about property owners’ rights to keep, this Article proposes that the “Keepings Clause” might be a more appropriate moniker, consistent with our choices to label other rights in the Constitution by the rights protected.
Of Professor Kochan's three theories of how and why "takings clause" crept into the lexicon, we think this one is the most plausible: "Another possible explanation might be the rise in so-called 'regulatory takings' challenges, which involved cases that came with a need to identify what it means to 'take' and 'not take' property, because only actual 'takings' are included within the scope of the protection." See p. 18.
What do you think, particularly those of you who were around during the time the phrase started being used in the 1970's?
His main thesis is that by using an inarticulate label (which wrongly focuses on the government power, not the right protected), the phrase "Takings Clause" diminishes the import of the constitutional protections. We don't call the First Amendment "the Censorship Clause," he notes, and the Fifth Amendment is all about the protection of private property, not the extent of the sovereign's power. With that, we're totally in agreement.
Not that we think the phrase "Keepings Clause" is going to be adopted widely. We like to base our labels on the text, and as much as keeping property is an essential "stick" in the bundle of rights (indeed, it may be the most important and essential stick, so much so that most judges and scholars simply assume it is baked into the notion of "property"), the Fifth Amendment talks of private property, takings, public use, and compensation, not "keeping" property (even though we think that notion is part and parcel of the concept of "public use"). We've never cared that much for "Just Compensation Clause," precisely because we think that the Public Use Clause is a limitation on the power to take, nor do we like "Eminent Domain Clause."
How about the "Private Property Clause," since the last bit in the Fifth Amendment is the only place in the Constitution where the word "private" modifies the word "property?" In every other clause it's just "property."
But we appreciate Professor Kochan's arguments, especially that part of the article that makes a great point: so much of how rights are considered is controlled by the narrative and the way that the issues are framed. As lawyers, we implicitly understand this, but it is helpful to see the data backing it up.
Well worth a read. Check it out.