The time may be right to step back from political and ideological polemics surrounding the historical monuments issue that continues to roil. Instead, consideration of first things first may be in order. In governance and law, lawyers and judges search for the provenance of authority to enact and exercise regulatory powers that are customarily entrusted to legitimately formed and accountable entities, operating with procedural safeguards and transparency.
Thus, a threshold inquiry: Does the New York City Landmarks Commission, a standing entity of the City of New York, have overriding jurisdiction in such matters through its procedural safeguards and substantive portfolio? From whence then springs the ukase to sidetrack or seem to supersede such a legislatively ordained entity that already possesses defined responsibilities and authority? Indeed, one is led to ask further what purpose is served – seemingly to invest an ad hoc Committee for public consumption and diversionary purposes – with possibly ultra vires authority that is ultimately accountable to no one except a municipal executive in the moment, without customary administrative law safeguards operation and outcome?
The awesome power to enact or even propose standards of review and consideration of municipal affairs is ordinarily and fundamentally a matter for institutional provenance. The starting point is always key. In the end, what may be offensive to some segment of the populace on these issues, yet legitimate to others in a democratically organized society, should be sorted out and determined by orderly processes of devolved powers of governance, not the whims and winds of the moment.
Joseph W. Bellacosa Retired Judge, NYS Court of Appeals