The right to create multiple constitutions as a result of allowing almost everyone – the Congress, the President, and state legislatures – to interpret the meaning and intent of the written “contract” between the states and federal government had its beginnings in the early 1800s. To allow this alternative to the Supreme Court as the sole interpreter would also create as many constitutions as there were interpretations, with the resultant disorder and disarray to the general welfare of the people.
In these times, we are faced with a rising problem of multiple constitutions as there are unregulated HOA Declarations that create a diversity of restrictions and loss of fundamental rights and liberties. In the absence of a solid body of law, or resorting to that firmly established body of municipal law, we have witnessed the courts attempting to interpret and define just what homeowners had agreed to in these HOA constitutions long after the date of supposed agreement to unsigned documents. The courts, in effect, in its elevation and supremacy of “private contracts”, have created binding agreements “on the fly” with the resultant disorder and disarray of individual rights.
Statesman, orator and attorney Daniel Webster (Debates in Congress, 1830, cited in Political Foundations of Judicial Supremacy, Keith E. Whittington, Princeton Univ. Press, 2007) faced this same issue in the 1830s relating to interpretations by the Southern States as to what they could or could not do (the question of slave states vs. non-slave states). He asked could it be possible to allow for multiple interpretations by “popular bodies, each at liberty to decide for itself, and none bound to respect the decisions of others?” Could these bodies, HOAs today, be “fit to be called a government? No sir. It should be called a collection of topics, for everlasting controversy . . . . It would not be adequate to any practical good, nor fit for any country [people] to live under”. Webster summed up his arguments in support of the single Constitution with, “Could anything be more preposterous than to make a government for the whole Union, and yet leave its powers subject to [multiple] interpretations?”
And, in our world today, those multiple interpretations are the HOA Declarations that are allowed set new restrictions and obligations on individual rights, and without due process under the 14th Amendment. These declarations are not founded in new political theories held superior to the theories upon which this country was created, but are founded upon the business profit motives of real estate interests. The blueprint for the HOA scheme of private governments operating outside the Constitution are based upon the Homes Association Handbook, TB #50, Urban Land Institute, 1964.
Examples of state supreme court opinions holding HOA declarations with their covenants (equitable servitudes) superior to state constitutions can be found in the Texas homestead exemption case (Inwood v. Harris, 736 S.W.2d 632, 1987) where equitable servitudes trumped the Texas Constitution. Also, in the recent NJ constitutional rights case (Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Association, A-118-122-05, July 26, 2007) where the court reassured homeowners that there’s a good chance that some violations of fundamental rights by HOAs could be found, but not here.
For more information on these cases and equitable servitudes see, Welcome to New America, A Choice for Americans, and the standard common law reference, the Restatement Third, Property (Servitudes).
HOA Constitutional Government 