Is 'maintaining property values' equivalent to 'the common good' and nothing else need be considered?
Funny, I don't recall the Preamble listing 'maintaining private property values' as an objective of the Constitution.
What is the role of state legislatures in protecting our rights? What rights do citizens have under state laws? What prohibitions are there on legislatures when there are no enumerated rights or restrictions except those that may be found in individual state constitutions?
Let's look at the political theories going back to Locke's Two Treatises. ('Theories' is used to present arguments and issues for a certain view or position because there is no absolute proof that they are correct. They are just someone's organized statement of a position).
Prof. Barnett offers the following in his Restoring the Lost Constitution:
"The propriety of the laws made by legislatures is dictated by the rationale for yielding the lawmaking power to the government. '?Men, when they enter into Society, give up the Equality, Liberty and Executive Power they had in the State of Nature, into the hands of the Society, to be so far disposed of by the Legislature, as the good of the Society shall require ? the power of the Society, or Legislative constituted by them, can never be supposed to extend farther than the common good.' [Locke, Two Treatises]. This ' good of society', however, is no open-ended grant of power simply to do good; it is defined and limited by the rights retained by the people when they surrender their powers of enforcement, and this is what makes it a genuine common good or good for everyone, not merely a segment or fraction of society."
Barnett continues his arguement with,
"... legislation restricting 'liberty interests' is typically defended, not on the ground that such liberty is wrongful, but because the restrictions achieve some desirable social policy or 'legitimate state interest'. When legislation encroaches upon the liberties of the people, only review by an impartial judiciary can insure that the rights of citizens are protected and that justice holds the balance between the legislature or executive branch and the people. Of course, if legislatures do take pains to regulate the rights of citizens only when it is necessary and proper to do so, he can expect them to be able to justify their actions."
"Regrettably, our actual experience with legislatures has not been so utopian. For this reason, meaningful scrutiny of legislative and executive branch actions by an impartial magistrate is required if the laws imposed on the citizens are to bind in conscience."
"How can a proper regulation of rightful activity be distinguished from an improper abridgement of the private rights of the people? As with the federal laws, the key is whether state laws are a pretext for purposes other than the prevention of future or rectification of past rights violations. One sign that a law is pretextual is when it benefits a particular group rather than the general public. Building on the Lockean idea of 'common good', courts examined whether a particular law benefited every person in the community as a whole or whether it instead was implemented for the benefit of a majority or minority faction."
"Specifically, it came to be determined, first, that laws that singled out specific groups or classes for special treatment would withstand constitutional scrutiny only if they could be justified as really related to the welfare of the community as a whole ? and were not seen a corrupt attempts to use the powers of government to advance purely private interests ; and second, that acts that interfered with an individual's property or market liberty would be considered legitimate so long as they wee not designed to advance interests of just certain groups or classes' [Gillman, The Constitution Besieged]."
We are all well aware of the strong influence of the special interests on Congress and state legislatures and the difficulty in reducing this influence, or at least giving the public an equal voice. Consequently, continued seeking reforms from the legislatures involves using strong legal arguments that cannot be brushed aside without causing the legislators not to run afoul of the Constitution.
And what about the frequently used argument by the courts that this is good for the entire HOA membership, yet clearly imposing restrictions and financial burdens on a minoriity of members? Is "maintaining property values" equivalent to "promoting the general welfare" and "the common good", and nothing else need be considered?
What is the role of state legislatures in protecting our rights? What rights do citizens have under state laws? What prohibitions are there on legislatures when there are no enumerated rights or restrictions except those that may be found in individual state constitutions?
Let's look at the political theories going back to Locke's Two Treatises. ('Theories' is used to present arguments and issues for a certain view or position because there is no absolute proof that they are correct. They are just someone's organized statement of a position).
Prof. Barnett offers the following in his Restoring the Lost Constitution:
"The propriety of the laws made by legislatures is dictated by the rationale for yielding the lawmaking power to the government. '?Men, when they enter into Society, give up the Equality, Liberty and Executive Power they had in the State of Nature, into the hands of the Society, to be so far disposed of by the Legislature, as the good of the Society shall require ? the power of the Society, or Legislative constituted by them, can never be supposed to extend farther than the common good.' [Locke, Two Treatises]. This ' good of society', however, is no open-ended grant of power simply to do good; it is defined and limited by the rights retained by the people when they surrender their powers of enforcement, and this is what makes it a genuine common good or good for everyone, not merely a segment or fraction of society."
Barnett continues his arguement with,
"... legislation restricting 'liberty interests' is typically defended, not on the ground that such liberty is wrongful, but because the restrictions achieve some desirable social policy or 'legitimate state interest'. When legislation encroaches upon the liberties of the people, only review by an impartial judiciary can insure that the rights of citizens are protected and that justice holds the balance between the legislature or executive branch and the people. Of course, if legislatures do take pains to regulate the rights of citizens only when it is necessary and proper to do so, he can expect them to be able to justify their actions."
"Regrettably, our actual experience with legislatures has not been so utopian. For this reason, meaningful scrutiny of legislative and executive branch actions by an impartial magistrate is required if the laws imposed on the citizens are to bind in conscience."
"How can a proper regulation of rightful activity be distinguished from an improper abridgement of the private rights of the people? As with the federal laws, the key is whether state laws are a pretext for purposes other than the prevention of future or rectification of past rights violations. One sign that a law is pretextual is when it benefits a particular group rather than the general public. Building on the Lockean idea of 'common good', courts examined whether a particular law benefited every person in the community as a whole or whether it instead was implemented for the benefit of a majority or minority faction."
"Specifically, it came to be determined, first, that laws that singled out specific groups or classes for special treatment would withstand constitutional scrutiny only if they could be justified as really related to the welfare of the community as a whole ? and were not seen a corrupt attempts to use the powers of government to advance purely private interests ; and second, that acts that interfered with an individual's property or market liberty would be considered legitimate so long as they wee not designed to advance interests of just certain groups or classes' [Gillman, The Constitution Besieged]."
We are all well aware of the strong influence of the special interests on Congress and state legislatures and the difficulty in reducing this influence, or at least giving the public an equal voice. Consequently, continued seeking reforms from the legislatures involves using strong legal arguments that cannot be brushed aside without causing the legislators not to run afoul of the Constitution.
And what about the frequently used argument by the courts that this is good for the entire HOA membership, yet clearly imposing restrictions and financial burdens on a minoriity of members? Is "maintaining property values" equivalent to "promoting the general welfare" and "the common good", and nothing else need be considered?
posted by Citizens for Constitutional Local Government | 3:44 PM
