I have argued that HOAs are a second form of illegitimate and unlawful, de facto local political governments. Randy Barnett, a constitutional scholar, wrote: “Only if it is legitimate can an existing constitutional system issue commands to the citizenry that bind individuals in conscience.”[i] The HOA government legitimacy rests on just “laws” respecting the rights and privileges of the people without violating the rights of others; that their member’s acquiescence to obey these unjust laws and covenants cannot be misconstrued and interpreted as having consented in good conscience to have so agreed.
I have also argued that, under “government”, Black’s Law Dictionary offers the simple definition: “The structure of principles and rules determining how a state or organization is regulated.” And, to clarify by what is meant by a “state”, Black’s speaks in the same terms of the differences in function that distinguishes an association from that of the state, and of the need to determine the “essential and characteristic” activities and purposes of a state. A state, according to Black, is a community of people established for “securing certain objectives . . . a system of order to carry out its objectives.” Nothing-new here, but Black’s then goes on to say: “Modern states are territorial; their governments exercise control over persons and things within their frontiers” (emphasis added). And Black cautions not to confuse the “state” with other communities of people in other forms of organizations designed to accomplish other objectives.
What has come to light since these earlier Commentaries, is the US Supreme Court interpretations of “state” and “government” in a question of the legitimacy of the secessionist State of Texas, in regard to the sale of bonds by Confederate Texas.)
The Court reasoned (emphasis added),
It [a state] describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country or territorial region, inhabited by such a community . . . .
The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government, or united by looser and less definite relations, constitute the state . . . . A state, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.[ii]
This 142 year-old opinion supports Black’ definition and the essential characteristic that makes an entity a government: a government is the person or group that controls and regulates the people within a territory. While the functions and services provided by a government are shared with many other entities, such as businesses per se and nonprofit organizations, this definition “separates the chaff from the wheat.”[iii] HOAs are the governing body of subdivisions that are subject to covenants; subdivisions are territories, plain and simple.
The Supreme Court further held, with respect to lawful and legitimate actions by de facto governments, and Confederate Texas was so considered,
It may be said, perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens . . . which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual [de facto], though unlawful government; and that acts . . . intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void.
In other words, the acts and actions by a de facto and unlawful HOA political government have validity to the HOA “citizens,” unless these acts and actions defeat the rights, freedoms, privileges and immunities of the people, the HOA members. The people are still subject to the Constitution in spite of all those arguments that the Constitution is negated by private contracts. This view is consistent with Barnett’s arguments for obedience in conscience.
Unfortunately for our “Modern Times,” there is a great division within this country, not this time between the Blue and the Grey, but between the Blue and the Red — the major political parties. This great division, this Second Civil War as author Brownstein titles his book[iv], is a war of ideology and dogma — as in the case with HOA “true believers” — coming before “for the good of the county” and the people.
Notes
[i] See The legitimacy of HOA boards and state legislatures, George K. Staropoli, citing Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty, Ch. 2 (Princeton University Press, 2004).
[ii] Texas v. White , 74 U.S. 700 (1868).
[iii] Government is defined by a “social contract”; HOAs by the new social contract, the CC&Rs, George K. Staropoli (included as Part III, “American Political Governments”, in The Foundations of HOAs and the New America.
[iv] Ronald Brownstein, The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America (Penguin Books 2007).
HOA Constitutional Government 