A strong example of where CAI stands on the role of the Constitution can be found in its amicus brief to the New Jersey Appellate court in the Twin Rivers free speech lawsuit, where CAI cautions the court about "the unwise extension of constitutional rights to the use of private property by members." CAI implied, but not as part of this lawsuit, that HOAs are truly as democratic as our American system of government, which I also leave to another time, and that the government should not decide in place of the voice of the people. Accepting this argument, the New Jersey Supreme Court decided that no constitutional violations had occurred, and said such things as homeowners may be able to find instances where the constitutional protections applied but not here. But don't worry, the Justices added, the common law business judgment rule, which the New Jersey courts have used extensively, will protect homeowners, and not to worry about constitutional restraints on private governments. One must ask, why then are constitutional protections needed for public entities?
Political scientists Franzese and Siegel provided a review of the Twin Rivers decision, The Twin Rivers Case: Of Homeowners Associations, Free Speech and Privatized Mini-governments, in which they called for more legislation to restore the "full panoply of rights" to homeowners in order to address the increasingly governmental nature of HOAs.
In short, constitutional protections have been replaced by the common law business judgment rule that holds, essentially, that the governing body knows better than we judges as to what's good for the people of the HOA. And that includes, by implication, that private parties can contract to ignore the Constitution. All the reform legislation of substance described in the media is an attempt to restore the rights and privileges taken from citizens by the HOA statutes, in the same manner as civil rights legislation restored lost rights.
I raised the question in my HOA Constitutional Government blog, "Is the delegation of legislative authority to private HOA entities constitutional?" I wrote, "When it comes to delegating governmental power and authority to state agencies, the authority for an agency to make and to enforce laws is subject to the state’s Administrative Procedures Act, with its constitutional law protections."
And, I further asked, "What about the legitimate grant of governmental powers and authorities to private organizations?" I answered, in part, with, "While not officially recognized as a de jure (under law) government, the various state HOA statutes and 'Acts' do grant authority to these private governments to act independently of state laws and local ordinances. Many times in many states, these private government arrangements, not approved or subject to review by the state, have been held to be superior to or supplement state laws, as when we see with, "unless otherwise provided in the governing documents."