Prof. Barnett argues
that the USSC has adopted a selective interpretation of the Constitution
that affects homeowner rights issues. He argues that only those rights contained
in the first 10 amendments are considered the domain of constitutional rights
and that all other rights are presumed to be constitutional. So, you will
not be heard by the USSC if you don't make a strong case that involves some
closely linked relationship to the Bill of Rights. Barnett adds that other
wording in the Constitution gives the people those constitutional rights
and cites the 9th and 10th amendments -- the enumeration of rights and powers
not delegated to nor prohibited -- belong to the people.
In his book, Restoring the Lost Constitution, he continues
this theme with (page 2), "Whatever may be in their hearts, many constitutional
scholars write as though we are not bound by the actual words of the Constitution
because those words are obstacles to noble objectives ... By deligitimatizing
the original Constitution, such rhetoric seeks to free us from its constraints".
We face the same attitude with respect to the noble ambitions by the proponents
of HOAs in regard to "affordable housing" and "maintaining property values"
whereby everybody gains.
He makes the point that in undermining the Constitution, why should
anyone pay attention to a judge or a political scientist, there is "no man
behind the curtain" (reference to The Wizard of Oz?). "This is a fraud on the public", Barnett declares.
As for legitimacy, and you can substitute the CC&R "constitution" in
place of the US, "A constitution that lacks adequate procedures to ensure
the justice of valid laws is illegitimate even if it was consented to by
a majority ... constitutional legitimacy can even be seen as a product of
procedural assurances that legal commands are not unjust".
Just what justice? Or who decides what is just? Barnett answers by explaining
"the founders' view that 'first come rights, and then comes the Constitution'.
The rights that precede the formation of government they call 'natural rights'".
Furthermore, he contends that "if a constitution contains adequate procedures
to protect these natural rights, it can be legitimate even if it was not
consented to by everyone" and if not, it's not legitimate even if consented
to by a majority.
This has been the essence of my posts on the "tyranny of the majority"
and the need to protect those unalienable rights of all citizens, including
the minority. And this is what we have been faced with in regard to protecting
our basic freedoms and rights that the CC&Rs, backed by state protection
via legislation that "validates" the CC&Rs and the court enforcement
of these measures, that have been taken away from us.
Our opponents speak of "the greatest good for greatest number" as a
democratic principle to justify their position. Don't buy it! This slogan
originated by Jeremy Bentham, a British economist who has fallen out of
favor and who predated the US Constitution.
Our cause, in its broadest application, is "justice and the equal protection of the laws".
To view and or print a FREE newsletter, The HOA Citizen, designed to bring
all sides of the issues to your attention, please go to Newsletter (Please distribute to other email lists and groups)
The HOA Citizen
The Case Against State Protection of Homeowner Associations
Citizens Against Private Government HOAs
George K. Staropoli
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