Citizens for Constitutional Local Government (CCLG), an eight year nonprofit advocacy organization, has responded to The Goldwater Institute's claim to support the Constitution while declaring the homeowner association (HOA) scheme is not a constitutional issue. CCLG asked Goldwater if its position that the "constitution provides principles answers in hard times" applied to HOAs and received a, "But again, this would be private misconduct to which the constitution does not apply" response.
In response to a 2002 similar question, the Institute for Justice had responded with, "To the extent that individuals entered into such contracts without full disclosure or appreciation of the consequences, that is a matter of contract law, not constitutional law."
In a Commentary on its HOA Local Government website, as President and Founder of CCLG, I responded with, "I could not miss the similarities in position with respect to private government HOA regimes that deny constitutional protections of equal application of the laws and of due process. Aren't these constitutional issues under the Fourteenth Amendment? Isn't government interference a constitutional issue under Art I, sec. 10? This fine delineation of constitutionality would be like saying that improper police interrogation procedures (Miranda) is a question of criminal law violations, and they have nothing to do with violations of constitutional rights. This position by these organizations is an obvious adherence to the ideology of no government interference with HOAs, whatever. The reality that prior government interference must be corrected (the earlier adoption of special legislation to protect HOAs), and the simplistic dogmatic insistence that a constructive notice surrender of one's rights are not considered constitutional issues."
It is estimated that some 20% of the American population live under HOA regimes, which is more than either the Black or Hispanic minorities. They are de facto private governments under a constructive notice binding of CC&Rs and, as such, lie outside the Fourteenth Amendment protections that apply to all other public government entities. The central purpose of HOAs is to maintain property values without any "Bill of Rights" protections for homeowners who are at the mercy of a corporate form of government.
We should be concerned about the ideology at work with respect to HOA violations of the Constitution. The most important rationale has been "no contract interference" to a bona fide, "entered freely with fully informed consent", constructive notice binding CC&R agreement, interpreted as a contract. Yet, elements of a bona fide contract are missing or overlooked, and there are serious questions in regard to whether the surrender of homeowner's rights and freedoms can survive appropriate judicial review.
CCLG's complete commentary can be found at http://pvtgov.wordpress.com. The November 19, 2008 Goldwater article by Nick Dranias can be found on The Goldwater Institute's website, click here. Learn more about Citizens for Constitutional Local Government.