Goldwater Institute: regulating HOAs “stands Constitution on its head”

In reply to my Arizona Capitol Times Commentary of December 12th (see The HOA experiment in privatized government is alive and well, and growing), Constitutional Center Director Nick Dranias believes HOAs are bona fide consenual relationships and regulating homeowners associations would “stand the Constitution on its head.”  ——

HOAs are not private governments

By Nick Dranias

Friday, December 19, 2008

George K. Staropoli in his recent commentary, “Just what is the Goldwater Institute trying to say,” exhibits a deep misunderstanding of both the Institute’s reform proposals and constitutional law when he proclaims limitations on the power of local government will somehow lead to “secessionist” homeowner’s associations, which could then “circumvent the Constitution.”
Staropoli’s mantra that an HOA is a private “government” does not make it so. There is a fundamental difference between local governments, such as municipalities, which enjoy geographical monopolies on the use of force through their police powers, and HOAs, which clearly do not have such powers.
That difference is what justifies tailoring the principles found in the Bill of Rights to more tightly constrain the vast regulatory powers of local governments, rather than HOAs. Indeed, Staropoli’s radical notion that the principles found in the Bill of Rights should instead be applied through legislation to regulate private, consensual relationships stands the Constitution on its head. The Goldwater Institute stands proudly behind its idea that the equivalent of “municipal constitutions” are needed to reform local government.

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Look for my rebuttal, coming soon, calling for a national debate on HOAs and the Constitution:   Can private, contractual governments be used to  circumvent Constitutional protections?  If so, then what is the purpose of the Constitution?