Taking back the Fifth.

• Author: DeLong, James V.
• Position: Regulations that undermine the Fifth Amendment and intellectual property rights

As government expands "takings" to intellectual property and other intangibles, will business start to care about property rights?

In political discourse, shorthand term for a constellation of legal, political, and moral issues surrounding the treatment of private property by governments. Those immersed in the topic think governments at all levels - local, state, federal, and international - have become cavalier about property rights, not just willing but eager to ignore both the letter and the spirit of the commandment in the Fifth Amendment to the U.S. Constitution that says "nor shall private property be taken for public use without just compensation." As a consequence, an institution that constitutes one of our most important civil liberties, essential to the economic efficiency of our society and to its moral ordering and legitimacy, is being undermined.

Property rights buffs usually focus on problems involving real estate. Examples are easy to find; regular newspaper reading quickly produces a large pile of clips about the use of government regulations to appropriate large chunks of property value. Often the owner is left with the husk of formal title (and the burden of real estate taxes) but stripped of ownership's benefits. Even if the goals are exemplary - stopping pollution, for example, or protecting rare animals - the means, which force a few landowners to pay for something that benefits the public as a whole, are not.

A press gang mentality is abroad in the land. During the Napoleonic Wars, England manned its ships through kidnapping. Anyone who "used the sea" was fair game to be pressed into the navy and sent off on voyages that might last for years. Contemporary environmentalism follows a similar principle: Anyone who uses the land can be pressed into the cause of environmental protection.

See, for example, the April 1 Washington Times, which describes the travails of John Taylor, a 79-year-old retired contractor who lives in the District of Columbia. Since his 74-year-old wife uses a wheelchair, Taylor wants to move out of their multistory house and into a single-story home he planned to build on an adjacent lot he owns. But a bald eagle has built a nest on nearby land, and the U.S. Fish & Wildlife Service has decreed a 750-foot no-build buffer around it, despite the fact that 10 houses already exist within the zone. The service is willing to let Taylor build the new home if he contributes $3,500 to a fish restoration program in the Potomac River aimed at increasing the food supply for eagles. The program has nothing to do with the nearby nest, but this is how things work under the Endangered Species Act. Taylor, exhibiting a punctilio of honor badly out of sync with contemporary Washington, refuses, saying: "I'm not going to bribe my government to let me build on my own land."

Other government actions, such as a recent effort to condemn land in Atlantic City so a casino could build a parking lot there, reallocate property rights among citizens. Or they exclude people from the public domain of the West - lands which, under a century-old bargain, the federal government is supposed to administer in a manner allowing reasonable access to citizens of every stripe. The new policy is steadily shutting down productive uses of this national commons, eliminating logging, grazing, mining, and recreation.

In recent years, any property rights buff with a mania for piling up news clippings has been forced to add a couple of file cabinets. But the subject matter is changing. The property protected by the Constitution and enshrined in our political tradition encompasses more than real estate. It includes intellectual property such as patents and copyrights, information, business assets, franchises and contract rights, and personal possessions ranging from houses to cars to cash. It includes 401 (k) plans, growing like weeds. These are the forms of property that provide the fodder for the latest batch of clips, and this time the involuntary donors include not a just few landowners but some of America's great corporations. As a result, businesses may be waking up to the importance of secure property rights, a shift that could invigorate a movement that so far has met with little success.

Consider some developments that may be prompting corporate America to take a second (or first) look at the Takings Clause:

* A group of 19 state attorneys general has suggested that the federal and state antitrust action against Microsoft might be resolved by seizing the Windows operating system and making its basic computer code public. This would abruptly turn one of the most valuable chunks of intellectual property in the world into a public commons, as a penalty for actions whose nature and illegality remains unspecified. (See "The New Trustbusters," March.) Nor are the attorneys general alone in their casual attitude toward such property. A recent column in PC magazine said bluntly, "Let's nationalize Windows."

* The Federal Communications Commission has interpreted the Telecommunications Act of 1996 as requiring local...