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".

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The Case Against State Protection of Homeowner Associations

Citizens Against Private Government HOAs

George K. Staropoli

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