Preeminent Domain

Harvard is a law unto itself

The Snollygoster

I say that I am “pre-law” in both senses of the word. I envision myself in law school eventually, and I often envision myself in a society before laws were introduced. In short, it’s tough to be a libertarian fascinated with lawmaking. Of the many issues I wrangle with, eminent domain is the concept I’d most like to consider today.

Eminent domain is a legal term for the public takeover of private property for a certain municipal function in exchange for adequate compensation to the owner.  It is tough for a libertarian to recognize the necessity of eminent domain. How lucky it is, then, for this libertarian to attend a university (the only university to my knowledge) exempt from eminent domain.

If you were unaware that Harvard is legally exempt from eminent domain, you are not alone. Few know about Harvard’s special status in the Massachusetts Constitution, and fewer remember the times when Harvard has invoked it.

The Massachusetts Constitution declares that “the President and Fellows of Harvard College…shall have, hold, use, exercise and enjoy, all the powers, authorities, rights, liberties, privileges, immunities and franchises, which they now have…forever.” To sum up, Harvard has the same privileges now that it had in 1780.

What exactly are those “powers… liberties… privileges, [and] immunities”? Among other things, Harvard, like other universities, is exempt from property taxes owing to its status as a non-profit corporation under the laws of the Commonwealth of Massachusetts. However, only Harvard is ostensibly exempt from eminent domain.

This is as far as the facts go, and only lore is left.  Here, however, is how the story goes. When, in 1974, the Massachusetts Bay Transportation Authority sought to extend the Red Line beyond Harvard Square, the state began plans to dig underneath Harvard Yard. They got so far as to build a platform approximately underneath Wigglesworth Hall. In fact, you may see the ghost station when you ride the T, on the right side of the train as it slows down and nears the platform at Harvard station. However, Harvard would not tolerate the thought of a tunnel below its sacred grounds, disturbing the scholarly peace and quiet of the Yard. Allegedly, Harvard hired a team of lawyers who took the MBTA to court. According to lore, they presented before the judge a glass encased letter granting Harvard exemption from eminent domain signed by General George Washington.

As for the veracity of the story, I have not found substantive proof other than repeated versions of the story told in forums. However, it is true that Harvard inexplicably convinced the MBTA to build around the Yard despite an astronomical increase in the cost of construction.

Mentions of the Red Line extension in the Crimson are cryptic. The earliest report states that two of the three proposals for the extension called for digging under Harvard Yard.  Few mentions are made again until 1978, four years later, when construction begins, conveniently, around the Yard.

This is not the first time Harvard invoked its special status. In 1970, just eight years prior, committee hearings were held when several state politicians proposed taking over Harvard Stadium via eminent domain and converting it into a stadium for the Patriots. The Patriots were only in their second year in the NFL, and the proposal was packed with populist appeal. Politicians could simultaneously denounce Harvard as a bastion of elite pretensions and appeal to the Patriotism­ of Americans and football fans alike.

But Harvard President Nathan M. Pusey ’28 flatly denied the Patriots use of the stadium. University officials interviewed quietly conceded they would be “knocked: we'll just have to sit there and take it." However, owing to “certain provisions of the state c­onstitution [that] exempt Harvard from eminent domain proceedings,” the bill was eventually blocked.

It is at this point that I feel I should stop researching this topic, lest the men in black suits and Harvard bow ties come knocking at my door. Additionally, both my word limit and my midterms are fast approaching. Suffice it to say that Harvard is, like me, pre-law. Harvard is “pre-law” in the sense that Harvard predates the invention of our current legal system by about a century and a half. All in all, the University does occasionally act as a law unto itself.

Sarah R. Siskind ’14 is a government concentrator in Adams House. Her column appears on alternate Fridays.

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