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.
