Both parties and presidential candidates are oblivious to the changing landscape of America that extends beyond the physical to cultural, social and political landscapes. Homeowners associations are protected, encouraged and supported by the state legislatures who are active participants in establishing the New America of privatized local governments.
"Governments are instituted among men deriving their just powers from the consent of the governed." — Dec. of Independence.
The only defense offered by the special interest promoters and legislators has been one specious argument based on "a consent to be governed" based on an unsigned contract, and by ascribing de jure government attributes to the HOA. Attempts at reform legislation are met with the outcry of "contract interference". More specifically, on Art 1, Sec 10, of the Constitution, the disjointed clause 1, which states: "No state shall . . . pass any . . . law impairing the obligations of contracts." Now there are certain implicit assumptions underlying this restriction to make this provision a fair and just restriction. The equivalent statement in the Northwest Treaty Ordinance of 1787, adopted just months before the creation of the Constitution, makes an explicit statement of these fair and just understandings,
"Art. 2d. "That no law ought ever be made . . . that shall . . . interfere with or affect private contracts or engagements, bona fide [sic], and without fraud, previously made."
It appears that the HOA supporters have been citing the wrong document, since neither "interfere" nor "private" appear in the Constitution. The supporters rely on the unjust constructive notice doctrine that does not require explicit consent, understanding or an exchange of positions, all contrary to contract law.
Furthermore, the so-called "sacred" contract is allowed to be amended to the detriment of homeowners without their explicit consent. This "open-ended" consent to abide by any amendment passed by the requisite amount of homeowners also flies in the face of not only contract law - agreements to agree - but also as a taking of private property rights indirectly by the HOA.
The HOA, having the support and protection of the state legislature, is acting as the state's surrogate in the taking of private properties. There are no state consumer protection agencies to warn or advise homebuyers of the loss of their rights and freedoms when entering into the court enforced "binding" CC&R contract.
This spread of homeowner associations contrary to American principles of democratic government is documented in Establishing the New America of independent HOA principalities, based on the author's eight-year struggle to educate the people and legislators to obtain the necessary legislative reforms. Find out more about this growing secession from the Constitution at StarMan Publishing.
Both Senator Obama and McCain must address the continued spread of this privatization of local community government, contrary to the ideals, values, principles and beliefs that founded this great nation. They must look inwardly to America, and put their own house in order.