“Censorship reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime.” — Potter Stewart, associate justice of the U.S. Supreme Court, 1965
The Declaration of Independence is the first and most famous memorializing resolution in our nation’s history. It was based on the idea that certain rights are inherent or universally recognizable — “self-evident” and “unalienable” rights. Among these, the “right to petition” is one of the most fundamental and is enshrined not only in the First Amendment, it’s also in the first sentence of the New York Constitution’s Bill of Rights. Both declare that no law shall be passed abridging the rights of the people to petition the government.
The “Gag Rule” of the 1830s attempted to abridge these rights. It was one of the first real tests for our democracy. Abolitionist groups were actively petitioning Congress when the House of Representatives passed rules to stop discussion of these petitions. It was finally repealed in 1844 after John Quincy Adams argued that it violated the First Amendment. He said, very simply, “I hold the resolution to be in direct violation of the Constitution of the United States, of the Rules of this House, and the rights of my Constituents.”
What is a memorializing resolution and why is it so important? It is a statement of principles that does not become a local law or policy. It is, effectively, a petition by one legislative body to other legislative bodies and lawmakers. In Congress, non-binding resolutions (which are the same as memorializing resolutions) allow for debate and help constituents to see where their representatives stand on important issues such as war, or healthcare. They allow the minority to voice its opinion. When the tables are turned, I hope that the party now in power would want to be heard, as well. Such debate is healthy in a democracy.
In the last few years, county legislators have unanimously passed memorializing resolutions with overwhelming or bipartisan support on many controversial issues that would affect our economy, environment and quality of life. These included our opposition to the proposed Pilgrim Pipeline on the state Thruway and crude oil anchorages on the Hudson River, the proposed Trans-Pacific Partnership, and our support for extending film tax credits to the Hudson Valley.
Some memorializing resolutions have been very controversial. In 2015, a 13-9 vote to memorialize opposition to the NY SAFE Act followed vigorous public debate. Last month, there was a large public turnout for a resolution supporting the Affordable Care Act, whose repeal could impact about 20,000 people in Ulster County. Despite this, and the unanimous public support for the ACA in the chamber that evening, the resolution was defeated. Many of the 30 public speakers at the last meeting also oppose the proposed ban on memorializing resolution we are now debating. As of Wednesday, March 22 another 340 people have signed a Change.org petition opposing the ban. Resolution #91 (of 2017), “Amending The Rules Of Order To Prohibit Memorializing Resolutions” would prevent resolutions unless they are specifically county business, also referred to as a “home rule message.” (Ulstercountyny.gov/sites/default/files/91%20-%2017.pdf)
In a representative democracy, we lawmakers vote on behalf of our constituents. When we bring forth a memorializing resolution, it is typically because we know that they will be directly affected by actions beyond our sphere of control. Yet there is great power in having this dialogue, engaging the public through our committee work, posting our proposals on our highly accessible website, and bringing the debate to the floor for a vote. How we manage this process is a reflection of our willingness to engage with the members of public on the issues that concern them. It is a reflection of our open government.
According to the separation of powers doctrine, each branch of government is intended to act as a check, or balance, upon the other branch as a means of preventing the abuse of power. Since the adoption of the Ulster County Charter, which I played a role in developing, our legislature has sought to find its voice and strength as a separate but equal body in Ulster County government. Now is not the time to diminish our voice.
Engaging in debate in a way that really represents and involves our constituents is our business. We are protecting their right to petition by creating an opportunity for their voices to be heard, for their petitions to have a real forum. At the last Laws and Rules meeting of the Ulster County Legislature on March 13, the sponsors of this resolution suggested that we don’t need memorializing resolutions. They claim that letters can address the same issues and are “just as effective.” A letter is not an act of the legislature that invites group discussion in committee, requires a vote by that committee to be sent to the floor, and is then a part of the public process where the public sees the resolution and can attend the session to weigh in. If you believe that they are the same, you discredit public participation, civic dialogue, due process, and the First Amendment. This is how we act fully as a legislature.
Why would we want to diminish our voice and power as a legislature? Are our actions any less important than any other legislative body or branch of government to our constituents? If we think so, we should not hold the office.
So I repeat the words of John Quincy Adams when I say to my colleagues, “I hold the resolution to be in direct violation of the Constitution of the United States, of the Rules of this House, and the rights of my Constituents.”
The author is an Ulster County legislator, representing part of the city of Kingston.