Is your legislature, the “sovereign” of the state, a legitimate government? This is a question that the people, and your government, have avoided asking and answering, but it must be addressed today. State legislatures have been acting, and the people have unknowingly accepted, the legislature as the “people” rather than as the representatives of the people. Constitutional scholar Randy Barnett argues, in reference to Congress, but applicable to all states and state legislatures,
Many people no longer conceive of Congress as the servant of — and checked by — the people. Instead they picture Congress as We the People itself. Under the prevailing theory of “popular sovereignty”, the legislature is thought of as the people personified, entitled to exercise all the powers of a sovereign people.
Because “the People” can “consent” to alienate any particular liberty or right . . . legislatures . . . can restrict almost any liberty and justify it in the name of “popular consent.”[i]
We, the people, have forgotten and the legislators have ignored, that the basis of our representative system of democracy rests on the consent of the people, not on the divine right of kings, on the right of “We the People” to govern themselves. As Barnett asserts, “They [the Founding Fathers] made this declaration because they believed that the consent of ‘We the People’ was necessary to establish a legitimate government.”[ii] We have witnessed decisions by the California Law Review Commission[iii], the NJ Supreme Court[iv], the Texas Supreme Court[v] and the Arizona Legislature[vi], to name a few instances, completely contrary to a just and faithful representation of the people within their respective states. And it is this failure to represent, in good faith, all the people for their benefit — the general public — and not for the benefit of a “faction” of the people, whose influence is weighted so heavily as a result of the moneyed special interests that gives rise to concerns about the legitimacy of our legislatures.
The legitimacy of our government, as set forth in the Preamble to the Constitution, rests on the consent of the people. But, in a representative system of government the practical answer to 100% consent, or “actual consent” by each and every person, is “majoritarian” rule, or the rule of the majority. Understanding that our legal system, not moral system, holds all non-consenting people to be bound by the proper decision of the majority. In other words, all the people are held to acquiesce and to obey the decisions of the majority, even those to which they did not give their actual consent. The important question that must be asked is: Does this practical solution to the effective functioning of a representative system create a moral obligation in conscience to obey the law? Barnett sheds some further light on this question,
Only if it is legitimate can an existing constitutional system issue commands to the citizenry that bind individuals in conscience. Therefore, though some degree of acquiescence may be necessary to establish a command as positive law, more than acquiescence is needed to create a moral duty to obey such a command.
[Majority] consent legitimates lawmaking only on the assumption that individuals have rights and there are things no person or group can do to them without violating their rights. For a law is just, and therefore binding in conscience, if its restrictions are (1) necessary to protect the rights of others and (2) proper insofar as they do not violate the preexisting rights of the persons on whom they are imposed.
Without actual consent, liberty must be strictly protected. In the absence of actual consent, a legitimate lawmaking process is one that provides adequate assurances that the laws it validates are just in this respect. If a lawmaking process provides these assurances, then it is “legitimate” and the commands it issues are . . . . binding in conscience unless shown to be unjust.[vii]
When we examine bills before our legislature, especially those bills protecting homeowner associations or denying the people their rights, freedoms, and liberties; and their privileges and immunities under their state constitutions, we should be conscious of the legislature’s obligations to the people that they represent. That they are not a government unto themselves that cannot do any wrong! That their legitimacy rests on just laws respecting the rights and privileges of the people without violating the rights of others. That their acquiescence to obey these unjust laws and covenants cannot be misconstrued and interpreted as having consented in good conscience to have agreed with the laws or with the HOA’s governing documents.
The pro-HOA supporters led by the national lobbying group, and self-proclaimed educator for HOAs, CAI, simplify the above to a false and erroneous sound bite that the homeowner “agreed to the governing documents.”
The vast majority of these HOA and condo statutes and “acts” do not measure up to qualify as legitimate laws. The government, realizing that it cannot achieve a voluntary acceptance and willingness by homeowners to obey these laws in conscience, must resort to repressive and punitive laws as found in any other dictatorship or banana republic, even those with a facade that the people have a right to vote. These unjust laws mimic the private government “constitutions”, the governing documents of these planned communities, with their authoritarian HOA governments.
America needs to return to fundamental democratic principles, and to the unmistaken intent, goals and objectives of the Founding Fathers, that does not include “maintaining property values”, as summarized in the Preamble to the Constitution:
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty,
Ch. 2 (Princeton University Press, 2004).
[ii] Id, Ch. 1.
[iii] George K. Staropoli email letter of April 11, 2006 to Mr. Hebert, Exec. Dir., California Law Review Commission in reference to AB 1921 (major rewrite of the Davis-Stirling Act, absent Chapter 2, Member Bill of Rights (http://pvtgov.org/pvtgov/downloads/AB1921_letter.pdf).
[iv] Committee for a Better Twin Rivers v. Twin Rivers, 929 A.2d 1060 (NJ 2007) (HOA constitutional free speech case) (http://pvtgov.org/pvtgov/downloads/TR_SC_decision.pdf).
[v] Inwood v. Harris 736 S.W.2d 632 (Tex. 1987) (homestead; covenants running with the land supersede Texas constitution).
[vi] Failure to pass HB 2034 (2009) and HB2153 (2010) asserting public government, not HOA, control over public streets; default superior court decision in February 2009 declaring an Arizona statute providing for the independent tribunal adjudication of HOA disputes by the Office of Administrative Hearings as unconstitutional.(http://pvtgov.org/pvtgov/downloads/OAH-constitutionality.pdf).
[vii] Supra, n. 2