Taking A Life by Eminent Domain
It is difficult to characterize anything in the media, today, as “bizarre.” The bizarre bar has been set too high.
Eminent domain is not a new-fangled violation of property rights.
But a recent story in the New York Times is a contender. The story, with the dateline, Weathersfield, Vt., May 27, 2021, by Ellen Barry, is headlined: “Goodbye to A Yankee Farmer, the Ghost of Exit 8.”
The New York Times is telling the story of a Vermont farmer, Romaine Tenney, and a tragedy that happened more than half a century ago, in 1964. But why? Why is this news—or a feature?
The federal government was thrusting the interstate highway system into Vermont. All up and down the Connecticut Valley, the property of farmers and other landowners was taken by eminent domain.
What the Bill of Rights purports to guarantee is that the property owner will receive “just compensation” for what is known as a “taking.”
Eminent domain is not a new-fangled violation of property rights. It is an “old-fangled” violation. It is not sanctioned by the U.S. Constitution; the first U.S. Supreme Court case challenging federal eminent domain said enumeration of the power was not necessary; it is fundamental to any government’s existence. What the Bill of Rights (specifically the Fifth Amendment) purports to guarantee is that the property owner will receive “just compensation” for what is known as a “taking.”
If the power of eminent domain is essential to government’s existence, then property rights are protected by government’s payment. But, like raising necessary revenue (say by taxes or import duties), the exercise of eminent domain by a government with strictly limited, constitutionally prescribed functions could be tolerable. Eminent domain would be used to acquire demonstrably indispensable locations for facilities related to defense, police, and the courts.
Even so, during WWII federal government acquired 20 million acres by eminent domain for defense needs such as military airports. The larger problem is that like other growth of government power justified by war, exercise of eminent domain never shrank back to pre-war proportions. Government takes land for national parks (as it had in the 1930s), highways, federal court houses, the NASA complex, “environmental management,” subways, and recreational facilities. Unlimited government powers equals unlimited eminent domain.
Other farmers, writes the NYT, “grumbled,” but during summer of 1964, Mr. Tenney saw bulldozers leveling the land around his farmhouse and went on milking his cows on his farm, his land. He could have accepted compensation for his land, but he did not. Then, in September, just after Mr. Tenney’s 64th birthday, state officials authorized his forcible removal from his property. The sheriff came with deputies to empty Mr. Tenney’s barn, tossing his harnesses, plows, and tools into a nearby meadow.
His brother and others urged Mr. Tenney to take the money, move, suck it up. That night, the highway department of Vermont informed Mr. Tenney that this was his last night in his home.
There were tears, says his niece, now 71. Looking back, now, entirely in retrospect, she says “In his mind, the only way out was to do what he did.”
I doubt that she foresaw how Romaine Tenney would respond to the sense of utter helplessness of losing his farm, with no choice, to build a highway that bureaucrats in Washington and Vermont deemed crucial “infrastructure.”
The NYT describes that night. “Rod Spaulding was a volunteer firefighter at the time, and he remembers being awakened by a siren around 3:00 the following morning. He stumbled outside, looked up at the sky and saw…one red fireball.” The fire was raging 60 feet into the air, seemingly from many directions at once—barn, sheds, and the farmhouse.
“He heaved on the door to the room where Mr. Tenney slept, and realized, through the haze, that it had been nailed shut. The heat was so intense it melted the bubble light on the top of the fire chief’s car.”
A crowd gathered. One observer, a boy back then, recalls: “I could see the reflection of the flames on people’s faces ….”
A day or more later, the ruins cooled so firemen could enter to find “an old bed frame, a rifle with expended shells. And bone fragments.” But Mr. Tenney’s remains were never identified; the ashes were dumped in the woods.
The day after the memorial service for Mr. Tenney, the state’s attorney general cleared the highway engineers to fill in the house’s cellar hole. Now, construction of the interstate highway could start, again.
For all its drama, pathos, and tragedy, the story of Romaine Tenney—as it is told by the NYT—has no meaning.
For all its drama, pathos, and tragedy, the story of Romaine Tenney—as it is told by the NYT—has no meaning. The issue of property rights is never mentioned or even hinted. The concept of man’s identification of his life with his property—because his time and effort (his life) created that property—is never hinted at.
Rather, the story is on the surface sympathetic, but, for its hero, chooses what we know must have been a tragically disturbed man. Who else but a nut job would immolate himself in flames to protest seizure of his property? Come on, nudge, nudge, he had to be nuts …
Instead, it seems, the theme of the NYT’s admittedly poignant story is emotional attachment of a community to … a tree. The story in the NYT, apart from the flashback to 1964, is about a morning in May of this year when a crowd gathered near the old Tenney farm (now Exit 8 on the interstate highway).
A crew had come to remove all that remained of the farm of Romaine Tenney: a gnarled rock maple that existed before the Tenney farm, survived its expropriation, witnessed that terrible night in September 1964, and now was going down.
The state of Vermont had ordered the tree felled. Chain saws whining and roaring, tossing sawdust blooms in the air, the limbs fell.
The NYT writes that a crowd was attracted to the death of the tree because of its association with Romaine Tenney. Tenney, the bachelor farmer called “Whiskers,” had not been forgotten 57 years after his suicide.
In an Orwellian sidelight, the state bureaucracy assessed the political significance of felling the tree and sent a state official to speak. The historic preservation specialist for Vermont’s transportation agency told the crowd the tree was on state land and in an advanced stage of decay. Its limbs could fall on passing vehicles and people.
The Vermont state spokesman told the NYT: “We did expect that it would be a tough issue …. But it was a real serious threat to the people who used the Park and Ride.”
Mr. Tenney’s awful protest made national news at the time. But decades later, says the NYT, as new highways funnel people into Vermont by the millions, people have turned against “unchecked growth.” Mr. Tenney has become a folk hero for poems, ghost stories, and songs.
Do you get it? “Unchecked growth” is the theme of the story, not property rights.
The NYT story ends: “In the village … where Mr. Tenney lived, the loss was personal: ‘We just couldn’t bring it to our minds that he burned himself.’ Sometimes kids ‘would leave plates of hot food in the woods, just in case Mr. Tenney was out there, hungry.’”
The NYT story—whatever the writer’s conscious intent or subconscious worldview—delivers the message that nostalgia, psychosis, provincialism, and backcountry craziness explain Tenney’s primitive attachment to the farm. And that Tenney was a pioneer of opposition to development.
The speech to the crowd the day the tree was felled did not go over well. A town selectman told the NYT that people “wanted to find a way to honor Romaine Tenney. …You can’t do it. And the town can’t do it. You took something from him.”
In New England, where I grew up, on a farm, we liked to point out the moral of a story. In this case, the NYT has left that job to me.
Where “an excess of power prevails” no property of any kind is secure.
In his famous essay on property (March 29, 1792), James Madison defined all human rights in terms of property, writing that a man’s physical possessions are his property, but he “has a property in his rights” to his opinions and their expression, the safety and liberty of his person, and the free use of his faculties, ‘which leave to everyone else the like advantage.’ To protect property in this fullest sense, government is instituted and alone is a ‘just government.’”
Where “an excess of power prevails” no property of any kind is secure.
You cannot understand human rights if you attempt to separate life and property. There is a human right to property and more broadly a proprietorship of each of us in our life and liberty.
Therefore, when government takes property, it takes life.
Sometimes all of it.
About the Author: Walter Donway
