The Outer Limits of Community Self-Governance in Residential Associations, Municipalities and Indian Country: A Liberal Theory
Abstract:This Article provides a normative framework that seeks to answer the questions of when and to what extent society should allow "dissident" communities to opt out of general culture and govern themselves. It surveys a number of such groups and develops an ideal typical conception of the ideology that drives them. Drawing on John Rawls' Political Liberalism, the Article then argues that foundational liberal commitments require that society grant most of these communities far greater powers to self-govern than currently are allowed under the law, subject to certain limits that the Article identifies. The Article then applies its framework to the surveyed communities and points to how its proposed analysis would impact the law governing homeowner associations, local governments, Native Americans, and First Amendment jurisprudence. I further refined the framework in "Illiberal" Societal Cultures, Liberalism, and American Constitutionalism, 12 The Journal of Contemporary Legal Issues 803 (2002).
Keywords: Constitutionalism, Cultural ideology, First Amendment, Native American, Rawlsian