CAROLE OWENS: May it be so that where there is a will there is a way

Washington D.C. — On November 8, 2022, George Santos, (R, N.Y.) was elected to represent New York’s Third Congressional District—northern Long Island and northeastern Queens—in the U.S. House of Representatives. The question is not will he be seated—he was sworn in early hours of Saturday morning, January 7, 2023. The question is: Should he have been?

It was reported that Santos lied about everything: his name, where he lives, what he does for a living, where he attended school, what religion he practices, how and when his mother died. He went from rags to riches in so short a period that instead of prompting accolades, it prompted criminal investigations.

Nonetheless, some say there is nothing we can do. They have reasons. They say it is not illegal to lie to the public. No? Not illegal to perpetrate a fraud to trick someone out of a valuable commodity—a vote? Some act as if the Constitution and our body of laws were merely a gentleman’s agreement, followed by mutual consent not mandated by law with consequences attached. Others say the problem is a feckless House of Representatives more concerned with politics and power than the body politic.

Whatever the reason, somehow that phrase, “There is nothing we can do,” has been heard more often in the last few years. It replaced the old American can-do attitude. Is it an artifact of the Trump years? If so, how so?

Trump did not react as expected. If caught, Trump did not admit or apologize. He felt no guilt or shame; he doubled down, and he did not stop the behavior. Did we begin to feel helpless because he did not respond as expected? Learned helplessness does occur after repeated failures. We come to believe that we cannot control or alter the situations in which we find ourselves. Whatever the reason, more often, “there is nothing we can do” is heard in our halls of government.

Please do not despair. We don’t have to dream up a way to deal with Santos, we just have to read a little history. Between 1869 and 1900, Congress refused to seat 30 elected representatives—they called them the “unseated members.” From 1900 to 1926, they refused to seat 12 more. Forty-two elected individuals were denied a seat based on Article 1, Section 5 of the United States Constitution.

It says, “Each House shall be the judge of the elections, returns, and qualifications of its own members …” That is, Congress could refuse to recognize the election or appointment of a new member for any reason. Later, “qualifications” was further defined in Powell v. McCormack, and “be the judge of the elections” in the Federal Contested Elections Act of 1969.

With respect to Santos, there is a way, but do we have the will?

Stockbridge, Mass. — Whatever this no-can-do attitude is and whatever caused it, it has seeped into local politics as well.

At the Historic Preservation Committee meeting on December 12, Chair Carl Sprague reported that the garden structure on Prospect Hill Road designed by Daniel Chester French in 1915 was demolished.

Drawing of French’s Lamond Garden Pavilion on Prospect Hill Road by Architect Paul Froncek.

French—the sculptor of “The Concord Minute Man” in 1874, “Alma Mater” at Columbia University in 1903, The Lincoln Memorial in 1920, and many other public monuments—was a resident of Stockbridge. He left behind his house and studio preserved by the National Trust. He also left behind “The Spirit of Life” (1914) at Saint Paul’s Church, the “Standing Lincoln” at the Stockbridge Library, and a garden structure on Prospect Hill Road. Any one of French’s artifacts could be the starting point to tell the story of who he was and who we were. Now one is gone.

Buildings are the repositories of our memories. Through the buildings and artifacts of our past, we tell our story. We point and say, “that is the house I grew up in” and so the tale of a life begins. Tearing down an historic building creates a rent in the fabric of one life or our lives. It makes it harder to explain who we are as a people, a town, a nation.

Some are shocked that anyone would tear down such a valuable structure—they mourn the loss. Some think this is nonsense. They say, “Who cares? Progress is what matters—tomorrow not yesterday.” However, the French garden pavilion stood at an inflection point. It stood where individual rights meet communal interests. At that point is the law, and the law limits individual behavior. So, if there was wrongdoing, what is the penalty for an assault on our history? If there was wrongdoing, is there a way to correct it?

So many folks in the village were concerned that Town Counsel was asked to render an opinion. Kindly, Chair of the Stockbridge Board of Selectmen Patrick White and Town Administrator Michael Canales shared it:

“Appropriate outrage has been voiced regarding the demolition of the Lamond Garden Pavilion by a private property owner on Prospect Hill Road … We asked Town Counsel to review if any laws were broken with the regard to the demolition. We received this response:

‘The listing of the pavilion on the state MACRIS does not confer any protection on the structure. It is not in an historic district, which would require compliance with G.L. c. 40C. It did not require any federal or state funds for demolition. Therefore, if there is any recourse for its demolition, it would only be under Article XXII of the General Bylaws—the Historic Preservation and Demolition Delay bylaw. By its terms, the bylaw does not apply to this structure. My reasoning is as follows:

‘Purpose — The purpose of the bylaw is to provide advice to the Building Inspector with respect to the issuance of permits for historically significant buildings. The bylaw regulates the issuance of building or demolition permits. The demolition of the pavilion did not require any permit.

‘Procedure — The procedure for review by the Historic Preservation Commission is triggered by filing an application for a demolition or building permit. If the Commission determines that the structure is a Significant Historic Building, then the effect is to bar the Building Inspector from issuing a permit for 12 months. The Commission has no authority to preserve an historic structure; it can only delay the issuance of a permit by the Building Inspector. Again, when no permit is required, there is nothing that the bylaw can delay.’

“Based on our current understanding the structure was less than 200 square feet, no demolition permit was required to be issued by the Building Inspector, and no permit was requested.

“In hindsight, we wish the owners of the property in question had attempted to save this structure by either moving it to a different location on site, or by offering it for relocation to the town or another private property owner. We want to emphasize, however, that we had no mechanism to mandate such a course of action.”

Is that so? Did we have no mechanism? Article XXII of the Stockbridge Bylaws appears to create a mechanism. Article XXII does not mention size as a variable that triggers the process required prior to allowing demolition. Moreover, is the purpose of the bylaw to advise the Building Inspector? Many people thought the purpose of Article XXII was to protect our historic structures and that does seem to be the case. If there is confusion about something so basic as purpose, then perhaps the bylaw should be rewritten for clarity. Finally, is this legal opinion an example of what we can do or why we can’t do anything? Stockbridge, do we have the way but not the will?

Stockbridge has often thanked its forbearers for the job they did writing laws that protected our village. All that is left for us to do is enforce them. May it be so—here, in Stockbridge, or in the nation’s capital, protecting our historic treasures or our form of government—that where there is a way there is the will.