Government Forbearance by James W. Ely Jr.

758 Words4 Pages
In their thoughtful book, Property, Thomas W. Merrill and Henry W. Smith posit that various factors induce governments to forbear from unduly undermining the expectations of property owners and, as a result, operate to safeguard the security of property rights.1 This essay seeks to explore this hypothesis, and questions whether one can realistically expect governmental forbearance to provide meaningful support for the rights of individual property owners. Can modern government be induced to forbear from making policy changes that unreasonably and unpredictably impair the value of property? Or to paraphrase the Georgia Supreme Court in 1851, is the security of private property “confined to the uncertain virtue of those who govern?”2 I submit that the answer is far from obvious. There are, of course, a number of constitutional restraints on government, such as the contract clause,3 the takings clause, and the due process requirement4. These are important provisions, but they have received such checkered enforcement in modern law that they can hardly be expected to compel governmental respect for the rights of property owners. Electronic copy available at: Merrill and Smith view Chief Justice Roger B. Taney’s famous opinion in Charles River Bridge v. Warren Bridge (1837),6 rejecting a contract clause challenge to the state-authorized construction of a free bridge to compete with an existing toll bridge under a prior charter, as striking a good balance between the need for change in the face of technological innovation and the importance of stability to encourage investments .The original toll bridge company claimed that its corporate charter impliedly conferred monopoly status which the state could not abridge. Taney declared that a corporate charter should be strictly construed to encompass only express guarantees,
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