The New American federalism: the surrender of states rights to HOAs

There was much debate by The Founding Fathers over the structure of the government being created under the US Constitution. Was it a democracy? A republic? Was it a federation with one sovereign over the states? The consensus seemed to settle as Alexander Hamilton wrote regarding a national bank,

The powers of sovereignty are in this country divided between the National and State Governments . . . . each of the portions of powers delegated to one or the other . . . is . . . sovereign with regard to its proper objects.

John Dickinson, representative from Delaware, offered that America

could not be safely and advantageously governed, but by a combination of republics, each retaining all the rights of supreme sovereignty, excepting such as ought to be contributed to the union.

Today, we are witness to the acceptance of the quiet emergence of a layer of independent republics as a third level of government in our American federation. This layer lies within each of the state republics and shares in the sovereignty of the people in the same manner as the federal-state co-sovereignty expressed above. Areas are carved out by means of a public-private partnership that utilizes restrictive covenants, which are permitted to supercede public laws and ordinances, to regulate and control the people within their territorial bounds. This layer, creating a New America, is referred to as homeowners associations.

I cannot understand why these states have not only permitted and agreed to the secession of independent HOA “principalities”, yet continue to argue over states rights with the federal government. On one hand the states are highly protective of their sovereign rights, their sovereign powers, yet they have no concerns over the surrender of these cherished powers to private “constitutions” created by profit motivated businesses. These broad powers fall under the classification of “police powers”, or the power to regulate and control the people for their health, safety, morals and welfare in addition to the punishment for crimes and the administration of justice.

Why have the states willingly allowed this new sub-layer of government, the HOAs, to yield many of these powers without oversight or providing for the protection of not only federal constitutional rights, but state constitutional rights as well? These HOAs, this new sub-state layer of republics, which do not have to be chartered under state municipality laws, truly operate as independent principalities.

Welcome to the New American federalism in support of sub-state HOA governments.