Private association rights vs. personal choice
Posted by aogWednesday, 06 August 2003 at 22:03 TrackBack Ping URL

I thought that my comment on the UN flag issue was just a convenient illustration, almost a throw away post. However, it seems to have generated more response than almost any other post. Despite claims to the contrary, I wasn’t “greatly pleased” or “piqued” about the flag itself, although it’s hard to have any respect for someone supporting an immoral, anti-human organization like the UN. Getting beyond that, the immediate recourse to the First Admendment strikes me as someone doesn’t respect his own agreements very much (although that’s consistent with backing the UN).

First up we have Hector, who is so digusted by my weblog that he refuses to put in a direct link, even though he’s willing to quote the entire post. Hector’s primary misapprehension is contained in this quote:
While the Constitution—in this case, the First Amendment—may not apply here, whether homeowners’ associations do in fact or should in principle have such rights as to prohibit what flags people fly on their property remains unresolved
Home owners’ assocations don’t have any rights. I consider the concept nonsensical. The question is, do the private individuals involved has the right to make binding agreements among themselves? The argument that rules like “no flags” are unacceptable is really saying that individuals can’t make such agreements. Why shouldn’t individuals have the right to make such agreements? Hector doesn’t say, because he’s avoid the issue and elided the people by redefining the issue in terms of the abstract entity of a home owners’ association. On a more interesting plane was a response by Charles Dodgson at Looking Glass.
What’s interesting here is that if the homeowner’s association were a formally constituted government body — say, a zoning board — the homeowner would face pretty much the same set of choices that he does against a private body: fight in court, petition the board to change its policies, or run for a seat on the board and start to work from the inside. And the argument that “he know about the association when he chose to buy his house” applies just as well to a zoning board. The main difference is that, as our libertarian commentators are quick to point out, there are restraints on government, like the first amendment, which do not apply to private bodies and cannot be used to defend against them.
I reply at more length in the comments, but I’ll summarize here.
  • This is one reason libertarians support a minimal federal government with different layers of government handling distinct tasks so that there is as much choice of law as feasible.
  • All local governments have all local government powers, while private associations can be far more specifically bound.
  • Private organizations don’t have the power of eminent domain. That’s not a small difference.

The fundamental question is, as mentioned in the reply to Hector, can individuals make binding agreements that are more strict than law? I argue that without such an ability, there will be nothing but individuals and the State. However, that may be the goal.

All of that said, of course the individuals who make up the home owners’ assocaition have to bear the consequences of going after this guy, even though he’s just being annoying. It’s not clear that such pettiness will improve property values or the comraderie of the neighborhood. These things tend to balance out far more with private associations (because they can’t dragoon members with eminent domain) and so such infringements are far less worrisome.