Visiting Scholar Explores How Labeling Text in the Constitution Impacts Interpretation
Might conventional naming of clauses of the Constitution—Due Process Clause, Birthright Citizenship Clause, Free Speech Clause—condition how an individual perceives what the text is designed to do?
In his forthcoming book, Framing the Constitution: The Impact of Labels on Constitutional Interpretation (Cambridge University Press, 2020), the Center’s Visiting Scholar Donald Kochan applies interdisciplinary social science research to constitutional labels. His research examines whether the choice of labeling text in the Constitution affects a receptor’s perception. In other words, because language matters—and first impressions do too—a person’s first interaction with a constitutional label matters. Extra-textual labels, a shorthand affixed to a specific right, power or other concept in the Constitution, according to Kochan, may impact how a person interprets the purpose and meaning of the Constitution’s text to which that label attaches. Kochan says his book aims to “make people more sensitive to label choices” and apply “more consideration in decisions to adopt or use labels.”
The idea for his book project emerged while Kochan, a property law scholar and the Parker S. Kennedy Professor in Law at Chapman University’s Fowler School of Law, researched text from the Fifth Amendment often labeled as the Takings Clause: “nor shall private property be taken for public use, without just compensation.” He asked the seemingly simple question: Why do we call the Takings Clause the Takings Clause? Kochan notes that text in the Constitution might be labeled by the governmental power that is limited, rather than by the individual right that is protected. For example, why do we label the text of the First Amendment referring to speech, the Free Speech Clause? What impact would a different label have such as the Abridgement of Speech Clause or the Censorship Clause?
To answer such questions in his book, Kochan engages in a multi-step approach. At the outset, he examines origin stories and pinpoints the earliest use of a particular label. He also identifies the rationale behind the choice of label. Such rationales could include facilitating shared communication or guiding a narrow interpretation. And based on this information, Kochan evaluates alternative labels—e.g. Commerce Clause versus Interstate Commerce Clause versus Commerce Among the Several States Clause. This approach, Kochan says, involves looking to fields such as marketing, advertising, psychology, linguistics, and behavioral economics. These disciplines generate “insights into understanding how the law” in the form of legislation, court decisions, and other similar legal products are “sold and marketed.” Using this framework, Kochan hopes to shed light on how the particular use of labels elicits different effects on lower-information members of the general public as consumers of a label versus high-information consumers, including judges, lawyers, and students. In fact, he garnered feedback from some Georgetown Law students this Fall semester when he presented findings about this project as part of the Center’s Student Fellows Program.
Kochan’s contribution to the legal literature is timely and poised to serve interests beyond members of legal academia. Current political debates have not only increased interest in the meaning of less popular parts of the Constitution (i.e., the Emoluments Clause) but also generated lawsuits. Given the significance of constitutional interpretation, Kochan says, exposing the “reality of a label’s influence can be beneficial to improving precision of the discourse on the meaning of the Constitution. We should be cautious when introducing a constitutional concept by its label and careful to understand the biases a label might have.”