Imagine if the government changed the terms of its bailout of one of the private banks primarily responsible for the financial crisis by helping itself to 100 percent of the bank’s future profits as the cost of its assistance.

Imagine if those seized profits didn’t even count toward the repayment of the bank’s obligations to the government. Imagine further that the government then announced plans to liquidate the bank and turn its thriving, hugely profitable operations into a public utility without any compensation to shareholders.

That would be really outrageous, right? We could expect Republicans as one to condemn it as confiscatory communism. And yet a majority-Republican House committee has just endorsed such a plan, on a straight party line vote. The catch is that it involves not a bank but Fannie Mae and Freddie Mac, the mortgage bond guarantors taken over by the federal government five years ago.

As far as Republicans are concerned, that makes it OK. The Fannie and Freddie liquidation legislation approved by the House Financial Services Committee Wednesday is designed so that “hard-working taxpayers … never again have to bail out corrupt financial government enterprises,” said committee chairman Jeb Hensarling, R-Texas.

Democrats largely agree. It was the Treasury, after all, that unilaterally imposed last year’s “sweep amendment” to the original takeover terms, robbing Fannie and Freddie of all their future profits with the consent of the Federal Housing Finance Agency, their government-named conservator.

The Obama Administration has indicated that it can hardly wait to sign a death warrant for Fannie and Freddie. Its main objection, and that of Congressional Democrats, to the Republican plan is that the replacement entity guaranteeing mortgages should retain a limited government guarantee once mortgage investors have sustained a certain level of losses.

In either case, Fannie and Freddie shareholders would be out of luck, and that includes owners of preferred shares who are supposed to be repaid ahead of any return on the common stock.

There’s just one problem with all this, namely the Fifth Amendment to the US Constitution, which ends with the injunction that “nor shall private property be taken for public use, without just compensation.”

A renowned value investor has placed a huge bet that the constitution applies to Fannie and Freddie too, by investing heavily in their preferred securities and then suing the government over its expropriation.

Bruce Berkowitz of Fairholme Capital Management has made billions investing in bailout comeback kid AIG (NYSE: AIG) and, more recently, in bond insurer MBIA (NYSE: MBI) during its own nearly fatal brush with financial calamity. Now he’s put $2.4 billion into Fannie and Freddie preferred stock out of conviction that they too will bear fruit, even as the market assigns odds of more than 4:1 against this possibility.

For example, Fannie Mae Preferred Series R (OTC: FNMAJ) shares with a par value of $25 were recently changing hands at $4.49 in the over-the-counter market. They topped out at $7 in late May on enthusiasm over the reported hedge-fund buying and then lost half of their value in less than a month as Congress got busy debating legislation that could wipe our shareholders common and preferred alike.

Still, the current price on the preferreds is more than double what they fetched as late as March, and Berkowitz’s big bet and the investments by other hedge fund managers shouldn’t be taken lightly.

Berkowitz’s Fairholme and Richard Perry’s Perry Capital have sued the government over last year’s decision to expropriate the virtual entirety of Fannie’s and Freddie’s current and future net worth as “special dividends” to the Treasury. And while Perry’s lawsuit has been pooh-poohed on narrow legal considerations, another recent lawsuit seeks class action on behalf of preferred shareholders on Fifth Amendment grounds, by the same high-profile law firm pursuing a similar claim on behalf of former AIG chief Hank Greenberg.

The Supreme Court has recently sided with claimants against the federal government in a couple of prominent takings cases. In December, it rejected an appeals court ruling against the Arkansas Game and Fish Commission. The state agency had claimed that periodic flooding of its land by the Army Corps of Engineers amounted to a taking, and the Supreme Court ruled that the temporary nature of the flooding didn’t preclude this claim. And just last month the Supreme Court backed a Florida developer who argued that an agency’s refusal to issue a permit amounted to a taking as well.

The following quote from the majority opinion in the Arkansas case ought to be of particular interest in regards to Fannie and Freddie claims, as well as arguments that the government did what it had to do to save the financial system and that’s that

“Time and again in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest. We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment’s instruction.”

It’s hard to fathom how a court could see a taking in temporary flooding or a permit dispute but not in government plans to dispossess preferred share owners by regularly stripping the companies under its conservatorship of their net worth, under terms cooked up long after the crisis has passed. And even allowing for the vagaries of constitutional jurisprudence, the odds of a ruling against the government seem a lot better than 4:1 against.

Of course, Congress could still choose to avoid that outcome simply by mandating that preferred shareholders get reimbursed at par as part of the ultimate Fannie and Freddie overhaul or liquidation.

Sure, some of the preferred shareholders are hedge funds, and no one likes those except for campaign fundraising purposes. But community banks and public pension funds are also on the hook, and make for much more sympathetic claimants. The par value of Fannie’s and Freddie’s common and preferred stock is $33 billion, much of it preferred. For comparison’s sake, Fannie and Freddie paid the government $66 billion last month for net worth accumulated during the prior quarter.

That pushed the sum that Fannie and Freddie have repaid to the government since the financial crisis at $132 billion, though of course none of that has been applied to their $187 billion in federal debt. At the current rate of profitability, the government should turn a profit on its assistance to Fannie and Freddie by the end of the year, while continuing to retain the debt as well as warrants entitling it to a future 80 percent equity stake.

That means the last reasonable argument for dispossessing the preferred shareholders – that the government first needs to get its money back – will soon go away, while the cost of making those investors whole will be dwarfed by the companies’ surging profits.

The odds of the government paying out preferred investors on that ground alone as part of a comprehensive overhaul seem higher than 4:1 too.

Of course, it’s very possible that neither Congress nor the courts will do the right thing. But at the current price, Fannie and Freddie preferreds offer attractive odds for any money you wouldn’t mind losing.