We are a nation not of `city-states’ nor HOAs, but of States

A little while ago I asked, “Did they [the Founding Fathers] intend to permit private contractual governments that do not explicitly subject themselves to the US Constitution [and amendments, including the 14th Amendment], as they required of the 13 colonies?”

One answer that I found says:

“We are a nation not of `city-states’ but of States.” So said the US Court of Appeals, 630 F.2d, at 717, cited in COMMUNITY COMMUNICATIONS CO., v. BOULDER, 455 U.S. 40 (1982)

Case Background:
“Home Rule” chartered Boulder, CO argues that it’s not subject to federal laws, in particular, the Sherman Anti-trust Act. The USSC said that yes indeed they were. There are issues of authority and powers of municipal corporations, raising the question of regulation and control of privately chartered HOA corporations.

Case Summary:
The powers and rights under the US Constitution that may be granted to state subdivisions is subject to the US Constitution. Our federal system recognizes only the US and the state governments and not any state political subdivision. Municipal corporations (“munis”) are subject to their charters and express authority granted under their charter from the state. Home rule charters grant many powers to the muni, even taking on state legislative powers for their local territory.

Issues relating to private government of planned communities

If these laws restrict de jure governments with their express grants of authority by the state, what rights and restrictions apply to private contractual governments? It cannot logically be NO ACCOUNTABILITY. This is the reason why we see so many state laws that mimic the provisions of the HOA CC&Rs: To legitimatize, under statute, the acts under these private contracts that grant governmental powers to these de facto governments.

A number of important excerpts a provided below. Please read them. Our concern, by analogy, is the constitutionality of these acts by private HOA governments.

Excerpts from Community v. Boulder

These precedents were construed as holding that the Parker exemption reflects the federalism principle that we are a Nation of States, a principle that makes no accommodation for sovereign subdivisions of States.

As this Court stated long ago, all sovereign authority “within the geographical limits of the United States” resides either with

the Government of the United States, or [with] the States of the Union. There exist within the broad domain of sovereignty but these two. There may be cities, counties, and other organized bodies with limited legislative functions, but they are all derived from, or exist in, subordination to one or the other of these.” United States v. Kagama, 118 U.S. 375, 379 (1886).

Respondent city of Boulder is organized as a “home rule” municipality under the Constitution of the State of Colorado. The city is thus entitled to exercise “the full right of self-government in both local and municipal matters,” and with respect to such matters the City Charter and ordinances supersede the laws of the State.

Published in: on June 7, 2005 at 12:59 am  Leave a Comment  

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