Supreme Court must go to bat for baseball great Roberto Clemente and defend our property rights

Roberto Clemente collected exactly 3,000 hits in his Hall of Fame career.Puerto Rico’s government collected something else from his name: roughly $15 million.In 2021, the commonwealth enacted laws requiring motorists to pay extra for license plates and registration tags bearing the baseball legend’s name, image, jersey number 21 and references to his hit total.The money went into a government fund.But Clemente’s sons, who have spent decades preserving and licensing their father’s trademark and humanitarian legacy, objected to the program — and received none of its proceeds.So with the help of the Beacon Center of Tennessee they sued under the Lanham Act, which governs trademarks, and the Fifth Amendment’s Takings Clause.The US Court of Appeals for the First Circuit allowed parts of their trademark case to continue but tossed the constitutional claim, reasoning that the Supreme Court’s categorical rule requiring compensation when government takes property applies only to tangible goods.A trademark, being “intangible,” gets sent to the legal minor leagues: the open-ended Penn Central balancing test, under which property owners rarely score.The Supreme Court should call that distinction out — because the Constitution has never treated invisible property as a foul ball.The Fifth Amendment says that “private property” shall not “be taken for public use, without just compensation.”It says nothing about property that can be weighed, measured, fenced or stuffed into a warehouse.At the Founding, property included incorporeal rights — franchises, easements, contract rights and other valuable interests existing in law rather than in physical form.William Blackstone wrote about “incorporeal hereditaments”; James Madison described property broadly as everything to which a person may attach value and claim a right.Early American takings cases followed the same understanding: Governments could condemn incorporeal rights, but they had to pay.In 184...