Saturday, May 14, 2011

Thinking about rights and liberties

The other day I ended up talking with a neighbor of mine. When I told him that I was about to start teaching a basic American Government course this summer, he launched into a political rant about constitutional rights, seen from what I would call a far-right perspective. I think, though, that even for someone with a different political orientation these observations might have some relevance. What struck me was the difference between the way he conceived of a constitutional right and the way I think about rights and liberties. As a non-lawyer, for him rights and liberties are absolute and the ones he doesn't like don't exist at all. So, for example, he think there is an absolute right to private property, but he thinks there is no right to privacy. He think "The Founding Fathers" intent binds us today, and that they (he believes) created an absolute right to private property, but that judges invented that whole right to privacy thing, so it doesn't exist at all. These liberties are like light switches--either on or off.

People with legal educations generally don't think about rights and liberties this way, because it doesn't work very well in practice. Rights and liberties frequently come into conflict with each other. If they are all absolute, there is no way to decide which one trumps the other. The Founders didn't give us a priority list to decide whether freedom of speech trumps private property. And using the Founders intent as a guide has been so thoroughly discredited as an impossible way to do things that nobody with any legal experience even tries. What did the founders intend about regulation of the internet, or genetic engineering, or nuclear energy? Nothing. That's why right wing judges like Scalia speak of original meaning, not original intent. They look at the text of the constitution and of legislation and try to figure out what they call the original meaning, not the intent, as expressed by the people who wrote it. There is too much compromise, logrolling, and ambiguity to ever discern a single "intent" among all the people who wrote something or voted for it. I don't find that particularly satisfactory either, in most cases, but it is a whole lot more sensible than the hopeless search for the unicorn of original intent.

But my main point is this: making decisions involving conflicting rights and liberties, and powers and duties, is hard and conflictual, and even the professionals disagree about how to do it. HOA and condo association governance puts individuals in charge of administering mini-governments where conflicts of rights and obligations occur all the time, often involving very complicated issues that implicate not only the association's governing documents, but state laws and even constitutional rights. Unfortunately, right now little attention is paid to educating people in how to make these decisions. To the extent that is done at all, it is usually done by lawyers and managers who are working for the BOD (or hoping to, using one of their "free educational seminars" that are actually fishing expeditions for clients). These folks tend to offer self-serving interpretations, such as the "obey the board" perspective. Why? Because they become the Board's lawyer or manager, and don't represent the individuals.

I hate to dump more responsibilities on governments, but who else will do it? In an article that I have coming out soon in Public Administration Review, I ask whether maybe public administration professionals and educators should be doing this. Maybe it's a pipe dream, but it is worth a thought.


Beth said...

It's hard to remain optimistic about problems like this one. Sometimes I worry that people *want* everything to be simplistic because simplistic is easier. So we ladle contempt on people who at least try to grapple with the hard problems (attorneys, professors, judges) because we'd rather scoff than think. Then we go to our hoa meetings and say things like, "Of course your mailbox must be white because That's The Rule," as though every rule that exists was carved in stone by a prophet.

On the other hand, we do have a constitution that was ratified by the people, which is really astonishing, all things considered. If our forefathers could figure out how to design and ratify a working constitution, we should be able to figure out this hoa stuff, right?

I look forward to your article, Evan. I hope you'll post a note here when it appears.

Fred Pilot said...

I've heard of local governments in Arizona putting on seminars on how to govern in a private HOA context. But my guess is local governments particularly given their strained finances aren't going to do this. After all, their land use policies mandating the formation of mandatory membership HOAs are designed to reduce their costs, not increase them.

That said, I agree with the overall message of your post -- that sorting out rights and responsibilities is far from clear cut. If it were, there would be a much diminished role for the judicial branch.

What makes this particularly messy and confusing in the context of private HOA government is people believe that since HOAs assert authority much like a town board or city council, their rights and obligations vis a vis them should be similar.

We've created a very inelegant and ambiguous legal entity in HOAs that attempts to shoehorn a private nonprofit corporation into a public governance role. It's no wonder HOAs lead to a lot of misunderstandings, friction and litigation.

Anonymous said...

Evan is right! Clear up the status of HOAs! I’m for making them subject to the laws of the land as are all other governmental entities. Compromise with those who “stole” our rights with pro-HOA laws and misrepresentation about the HOA legal scheme is not an option.

In an open society, let the people decide, and remaining in an HOA is not a valid criteria for a genuine consent to be governed. HOAs are not de jure public entities. People remain in their jobs but no one would argue about genuine consent to be governed.

Anonymous said...

"HOA and condo association governance puts individuals in charge of administering mini-governments where conflicts of rights and obligations occur all the time"

How can rights be in conflict when homeowners have no rights?

Evan McKenzie said...

I think the HOA/condo governance situation is influenced by some cultural transformations that affected the entire US, along with Great Britain and much of western europe. In the 1780s there was a deep belief in the notion of citizenship--a role people played in a collective that had certain rules and limits along with rights and liberties. But somewhere in the 1960s or 1970s, people became consumers above all else. As consumers they think they can just sit back and act like everything is a consumer purchase for which they expect the best return, or take their money elsewhere. Listen to these ridiculous focus groups of "swing voters" and you get the full picture. They demand to know what each candidate will do "for people like me," by which they mean "ME!!!" There is no concept of an interdependent self (as they call it in social psychology). They are all little islands of individualism who demand, demand, demand, and want their world customized to their likes and dislikes, the way they order a half-caf soy latte with amaretto and chocolate sprinkles at Starbucks. If previous generations had been like this, we'd have a constitution a million pages long. As for CID living, the consumer expectations of what is, after all, a mass marketed product make it impossible to run the places as civil governments. I am writing something on this now, and I'll share it when I am done.

Fred Pilot said...

As you've pointed out previously, the privatization of local government isn't being driven by consumer demand but instead fiscal and land use policies adopted by local government reinforced by state enabling statutes. So in that regard, it's inaccurate to describe CIDs as a consumer product phenom.

Fred Fischer said...

According to the Harwood Group study, Americans feel their right to self-governance has been taken over by special interest groups, political and corporate collusion and the media. From Building Citizen Involvement…by Mary L. Walsh Sound familiar!

Many if not most people refer to privatized housing as community associations or planned communities except both references are not accurate. Because when housing is privatized the very definition of community changes. From the commonly shared core values and concern for the public good of its members (consumers) to the values, goals and economic best interests of those who participate and create the contract (developer, trade group members, municipalities).

The answers will not likely come from education since the housing association industry special interest groups overwhelmingly already control and provide that information. Or from State regulatory departments or special commissions/Boards since again the industry special interest group members end up becoming a large number of its employees and directors.

So what’s a better solution, when it comes to housing ? Privatization through corporate governance can only serve the best interests of those who exclusively participated and created the contract where rights and liberties for the property owners are rarely included because they are contradictory to the primary mission. On the other hand, With public involvement comes public support for solutions to the problems facing our communities (Anthony Capizzi, Dayton OH.). Where rights and liberties become the primary mission.

Tyler said...

It seems that between the Nazis on the one hand and the Libertarians on the other, homeowners associations can't catch a break. Nothing funny about stepping on owner's rights, of course, but we definitely need to separate this conversation and others like it, into two distinct categories: attached housing and owner's associations for single family homes. Attached housing cannot exist without some strong central authority to keep it maintained. If anyone thinks you can maintain a condominium building without maintenance assessments and some elementary rules for close quarter living should see one where those systems have failed--and there are plenty of projects like that which have deteriorated to the point of obsolescence. The problem there is not too much governance, its too much apathy.

Detached housing, on the other hand, where the association only maintains exterior infrastructure--streets, utilities, parks, etc--but not the individual homes, can function without much in the way of architectural or social rules as long as there remains a strong provision for raising the funds necessary to manage and maintain the infrastructure. The owners, as a group, can decide if they want no more governance than that imposed by the local municipality or whether they want to agree on a layer of rules specific to their association. That's a political issue that requires enough owners to express themselves on the subject, usually by vote.

Yes, boards of directors, property managers and attorneys can influence that process, but owners, if they can rally the support of enough of their neighbors do have control of their own destiny. These are not really governments as we know them--they are only creatures of contract and the parties to that contract, the individual owners, can amend it if they are sufficiently motivated to do so. But what usually happens is that consensus cannot be reached so the governing documents are never drastically amended. Some owners do support architectural controls, for example, while others prefer to be left alone.

No state legislature is likely to retroactively change that scheme and cities and counties like the idea that street maintenance is handled by the owners association and not an expense of the city, so don't bet on municipalities taking over these neighborhoods in our lifetimes. Owners who want the rules changed have only one real option--get out and rally the troops.

Anonymous said...

"The problem there is not too much governance, its too much apathy."

Mr. Berding,

With all due respect, I think you underestimate the role your industry has had in creating that apathy.

When homeowners are repeatedly abused, demoralized, and marginalized by the HOA boards and attorneys, and made powerless by state legislatures bought and paid for by the Communisty Associations Institute, what do you expect?

As the Good Professor said in a radio interview last year, "The transaction costs of enforcing an owner's rights are so great that they are hardly ever able to do it."

Congratulations. You've succeeded in grinding them down enough so that the proles won't revolt.

"The aim of the High is to remain where they are. The aim of the Middle is to change places with the High. The aim of the Low, when they have an aim -- for it is an abiding characteristic of the Low that they are too much crushed by drudgery to be more than intermittently conscious of anything outside their daily lives -- is to abolish all distinctions and create a society in which all men shall be equal. "

If you want a picture of the future of so-called-community associations, imagine a privatized boot stamping on a homeowner's face...forever.

That being said, I think some of your analysis and contributions to the discussion have been spot on over the years. On the balance, I wish there were more HOA attorneys like you instead of, say, Donna Berger, whose writings have the quality of a low-level apparatchik.