The Goldwater Institute's Policy Report of 100 ideas for 2009 contains some disturbing ideas affecting local government, homeowners associations and the future of American society. In particular, the Institute called for "enhanced protection against local government . . . by enacting local constitutions" and for counties to replace land use with "privately enforced restrictive covenants" (emphasis added). Is the Goldwater Institute advocating HOA independence from constitutional restraints, and the establishment of a New America of independent principalities by secession?
Cities and towns have charters, not constitutions, subject to votes of the citizens and approvals in accordance with Arizona's statutes. Homeowners associations have governing documents quite often referred to as constitutions . Constitutions carry the implication of equality with the state constitution, not subservience. And there is no indication that any such private constitutions will incorporate Constitutional protections of individual freedoms and liberties that are absent from existing HOA "constitutions."
Robert Nelson (Private Neighborhoods and the Transformation of Local Government, Urban Institute Press, 2005) advanced this New America in which HOAs will secede from local municipal government since they will be performing all municipal functions.
Creating a private neighborhood association [HOA] is an act of local secession by an altogether different route. . . . The rise of the private neighborhood association . . . amounts to a powerful new movement of local secession in American life. . . . In the future, more complete forms of secession may become possible.
Our Founding Fathers, although not perfect beings, well knew that a lasting democracy must be founded upon the respect for and the protection of the rights of the minorities, those rights that no government can take away. Yet, we are seeing a new wave of legal-academic aristocrats offering a supposed better form of government.
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.
The complete commentary can be found at The HOA experiment in privatized government is alive and well, and growing, and in the Dec. 12, 2008 Commentary in the Arizona Capitol Times. The Goldwater article by Nick Dranias can be found 100 Ideas for 100 Days.