Say It Ain't So, Ron

Jacob Sullum | June 29, 2006

Rep. Roscoe Bartlett (R-Md.) is celebrating yesterday's unanimous approval by the House of his Freedom to Display the American Flag Act, which tells homeowners and condominium associations they have to let their members fly Old Glory. The bill now goes to the Senate, which surely will pass it in time for July 4, lest anyone in America be forced to endure another flagless Independence Day. "I was alarmed to learn from my constituent Hugh Warner, who is a flag dealer, that some homeowners associations and condos prevent Americans from flying the American flag at their homes," Bartlett explains. "That's why I introduced this bill. H.R. 42 will guarantee Americans the freedom to display the American flag in front of their homes."

If there's anything stupider than a rule telling people they can't display American flags, it's the conclusion that such nitpicky micro-regulations by private residential associations represent a national crisis requiring congressional intervention. Condo and home owners do, after all, agree to these restrictions when they buy their homes. And as Virginia Postrel pointed out in Reason a few years ago, some people actually pick a place to live because they want their neighbors to be constrained by rigid, detailed aesthetic rules. Is Bartlett next going to take up the cause of homeowners who want to paint their houses bright purple or put up metal swingsets?

It is dispiriting that not a single member of the House stopped to think about the (nonexistent) constitutional basis for this legislation or about the rights to freedom of association and freedom of contract that it so blithely violates. I can only hope Ron Paul was absent that day.

Comments

|6.29.06 @ 1:50PM|#

I think the phrase "beyond parody" was invented for this situation. Up next: Freedom to Display the Tiny American Flag Lapel Pin Act. There is nothing too small for the nannystaters to micromanage from distant DC.

Kenneth R. Gregg|6.29.06 @ 2:25PM|#

Jacob,
HOAs are not "private residential associations", but quasi-municipalities franchised by the state in conjunction with federal regulations and requirments for all new housing to be in "master planned communities" where all homeowners are to be collectively organized. They are similar to cities save that individual rights and civil liberties are less permitted than they are in cities. Unlike residential homes without HOAs, they are not multi-generational. The HOAs give the regulating boards control in personal areas, where increasing rules over personal behavior are the justification for the boards, and over financial areas of the HOAs, which typically are in an under-funded position. It is a matter of time how long the HOAs last before these become serious problems.

At best, they are training grounds for little nazis. At worst, they are capable of destroying homeowners lives. Please see some of the websites devoted to these concerns, like AHRC.com. Then see if your position is revised.

Just a thought.
Just Ken
[e-mail]
http://classicalliberalism.blogspot.com/

|6.29.06 @ 2:50PM|#

Kudos to Congressman Bartlett! We had a case in Richmond, VA where a PRA or HOA retroactively interpreted a vague clause in the contract to prohibit a flag display.

This law isn't bigger government because it requires no additional administration or budget, and simply serves to expand liberty. That's the whole point of Libertarianism, right?

The comparison of the right to display the flag with the right to paint one's house bright purple is rather specious. Americanism is definitionally the one thing we have in common, and anything that impedes our rights to express our Americanism in the most traditional fashion is, well, un-American.

|6.29.06 @ 2:57PM|#

"This law isn't bigger government because it requires no additional administration or budget, and simply serves to expand liberty."

Actually, no, it restrains liberty by legislatively dissolving existing private contractual agreements. If you want to fly a flag, don't buy property in a covenant-controlled development or buy it only in one with an express flag-flying clause in the covenant. I'll be interested to see the 42 U.S.C. 1983 lawsuit that results from this.

|6.29.06 @ 3:03PM|#

First of all, HOA's are disclosed when you buy the house. Your argument that the agreement was interpreted retroactively doesn't mean much, because you're the one who bought a house in one of these restricted communities in the first place. That's why they call them "restricted". As for the issue of freedom, basically, the government is telling restricted communities that they are no longer allowed to enter into a private agreement as to the aesthetics of their neighborhood. Just because you want to fly your flag doesn't mean the government needs to come in and upset a fundamental and material term of the biggest investment most people have. Honestly, you are probably respectful, but what happens when you get that guy who wants to fly 50 flags in his front yard? Any idea what that does to property value? The government is basically invalidating private agreements all across the country for July 4th appeal. Using the flag for cheap politics is a desecration in my book.

Jesse Walker|6.29.06 @ 3:09PM|#

what happens when you get that guy who wants to fly 50 flags in his front yard?

Check the building codes. Since Congress failed to stop the nation's terrible plague of flag-burnings, the yard is clearly a fire hazard.

|6.29.06 @ 3:15PM|#

Why does Reason hate the American Flag?

|6.29.06 @ 3:23PM|#

I am currently residing in a townhome style condominium. Our condo assocation has some rather strict rules about lots of things. Amazingly enough, per the bylaws of our assn. we meet once every two months and vote on what goes on with the condos. Wow, imagine that!! People can not only choose to live in an association but can change the rules if enough of them decide to. Get over it and quit expecting the government to interfere on your behalf.

Disclaimer, I am moving out to the country ASAP so I can paint my whole house lime green.

|6.29.06 @ 3:29PM|#

Americanism is definitionally the one thing we have in common, and anything that impedes our rights to express our Americanism in the most traditional fashion is, well, un-American.

(picture of john rubbing his temples like something is short circuiting in there)

Ahh. I see now.

We're *all* American, and when other Americans engage us in contracts that potentially reduce our collective Americanism, it thusly produces a net detraction in the cumulative Americanism shared by all, which by definition (or, say, definitionally) is Un-(but not Anti)-American...ism. So, if they do that enough, we wont all be American anymore, and there will be like, half or 1/4 Americans mixed in with the rest of us?

Did I get that right?

(rubs head some more)

See, my personal problem is that I sometimes forget what fucking country I actually live in, and it's a real handy reminder. There i am, driving along, take a left turn, then go, "wait! holy shit! Where am I? = Oh a flag!... Oh yeah... America. Sweet!"

I'm still pissed they wouldnt let me paint my house like an American Flag, put a fireworks display in my front yard that would go off every night at midnight, with a PA speaker system blaring out Yankee Doodle Dandy 24/7. Goddarn unamerican neighbors.

JG

KipEsquire|6.29.06 @ 3:32PM|#

It was a voice vote, so the assertion that it was "unanimous" is invalid as no record of individual votes is kept.

NathanB|6.29.06 @ 3:33PM|#

Why it sucked:
* Super stalking
* Lois' kid
* More Super stalking
* Where was all the Kryptonian technology that Lex was going to use to ensure his victory?
* Superman solves every problem by lifting large objects, and why is he able to do so while being exposed to huge amounts of Kryptonite?

Windypundit|6.29.06 @ 3:36PM|#

If you want to fly a flag, don't buy property in a covenant-controlled development or buy it only in one with an express flag-flying clause in the covenant."

Or just break the rules and fly the flag anyway. It's not like the homeowner's association can toss you in jail.

A real patriot would be glad to pay a fine for the privilege of flying Old Glory!

|6.29.06 @ 3:38PM|#

I hate HOAs, so I'd never live in one, but Congress should stay the hell out of their business. Let the wanna-be fascists voluntarily choose to live together; it helps me identify and avoid them.

|6.29.06 @ 3:45PM|#

I can't get worked up over this one way or the other, but anything that flips the bird to home owners associations is okay in my books. Though, with the US Flag out of their jurisdiction, they'll just have more time to obsess over the color of my garden hose and trash can.

|6.29.06 @ 4:01PM|#

Actually, no, it restrains liberty by legislatively dissolving existing private contractual agreements.

Damn, you're right. Just like when the Supreme Court overturned the legality of racially prohibitive covenants. Also, please note that my original posting mentioned a PRA/HOA with no explicit anti-flag provision, but an anti-outdoor-display (ie, anti-pink-flamingo) clause that was later interpreted to prohibit the flag.

HOA's are disclosed when you buy the house. Your argument that the agreement was interpreted retroactively doesn't mean much, because you're the one who bought a house in one of these restricted communities in the first place.

First, I wasn't a party to this incident, just outraged by it. Second, retroactive interpretation means everything when the agreement didn't explicitly mention American flags.

As for the issue of freedom...

I never mentioned "freedom" in my post, so have no interest in rebutting a rebuttal of an argument which I didn't make.

Honestly, you are probably respectful,

Not really, and I fail to see how that would matter either way for an article on the merits.

...but what happens when you get that guy who wants to fly 50 flags in his front yard? Any idea what that does to property value?

Not taking the bait on this one. I'm arguing about one reasonably sized (2' x 3' or smaller) flag per lot.

Using the flag for cheap politics is a desecration in my book.

I unapologetically disagree with your characterization of this commonsense measure as cheap politics.

|6.29.06 @ 4:17PM|#

Not really, and I fail to see how that would matter either way for an article on the merits.

argument not article. Oops.

|6.29.06 @ 4:20PM|#

Tonio =

If certain people (Americans even!) find flags displayed on every home kinda jingoistic and tacky, why shouldnt they be able to form a private residential community that self determines how they want the block to look? Is there something wrong with that that should be stopped?

...and this ISNT cheap politics?

You're right. it's 'commonsense' that with a ballooning deficit, 2 wars going on, the shredding of the bill of rights, the progressive castration of congress, and the gulf coast still totally devastated by an almost year-old natural disaster... No, THIS is what congress should be focusing on. That, and we need to stop gays living together from...committing to living together..like, officially and stuff. Cause that would definitionally be unamerican, right?

And... what else is on the "commonsense" legislative agenda?

http://www.usatoday.com/news/washington/2006-04-15-senate-gop_x.htm

Just curious... Give me an example of what you think are REAL "cheap politics".

JG

|6.29.06 @ 4:45PM|#

Gilmore,

Uh, I am gay, and fully support gay marriage. Now, what was it you were saying?

The crow really doesn't taste so bad, once you manage to get past the feathers. Bon Appetit.

Tonio

|6.29.06 @ 5:07PM|#

Tonio:

I said, "Honestly, you are probably respectful", and you said, "Not really, and I fail to see how that would matter either way for an article on the merits," but then you responded to my query about the 50-flag guy, and you said, "Not taking the bait on this one. I'm arguing about one reasonably sized (2' x 3' or smaller) flag per lot."

That's exactly my point. You are arguing for a reasonably sized flag, but the freedom you are talking about does not make that distinction. So, it wasn't bait, it was a legitimate question. My whole point is that your argument is out of hand, you can't choose to "not take the bait" because plenty of people will fly a disgusting number of flags. Sorry, the issue is bigger than you and your opinion.

You said you never raised the issueo of freedom, and therefore would not rebut my point. So, please, what does this mean from your post:
"and simply serves to expand liberty. That's the whole point of Libertarianism, right?"

John M. Joy|6.29.06 @ 5:13PM|#

Are you arguing that a flag isn't an outdoor display??

How is this a "retroactive interpretation" ??

JMJ

P.S. I wouldn't want to live in one, either, but many people do, apparently.

|6.29.06 @ 5:42PM|#

1st I'm one of the people who don't like it when neighbors trash up their lots with junk cars, campaign signs [& keep them on display months after the election], gaudy holiday displays [& keep them on display year round], plastic flamingoes, uncut lawns etc. 2d Patriotism is also something in the heart like love; the guy who criticizes me for not wearing a flag pin or displaying a flag is simply a rude slob. I live in a free country. I do not need to point out that I wore the uniform & was given an honorable discharge to someone who wears his patriotism on his sleve & demands that all meet his standard of patriotism.
As for you who live in a gated community, etc that restricts all displays & wants to display old glory, move. Put your money where your mouth is rent or buy another place.

|6.29.06 @ 5:57PM|#

Tonio, are you a troll, or just dumb as a rock? I can't decide.

|6.29.06 @ 6:59PM|#

Sorry, but there is something to be said for a law which only lets people do more things. Given Congress' recent (well recent and historic) activities, a law like this is actually an improvement.
I completely understand the libertarian theoretical and practical distaste for this law: it interferes with a freedom of contract with no compelling state or constitutional interest. But really, given that many, many HOAs are mini-fascist organizations with little chance for people to change how they are run, is this really a cardinal sin? I mean, if all Congress did was outlaw outlawing things, I'd be happy.
And for all those who say, "Move if you don't like it," I will resist the comparison to racial housing contracts and simply say, "In an impacted housing market where my tiny-ass, 20 year old, 1100 sq ft condo goes for a half-million, and all (practically all?) the condos and homes in this town belong to some sort of HOA with extensive picky rules, what exactly am I supposed to do?" We can't all move to the country.

|6.29.06 @ 7:14PM|#

In an impacted housing market where my tiny-ass, 20 year old, 1100 sq ft condo goes for a half-million, and all (practically all?) the condos and homes in this town belong to some sort of HOA with extensive picky rules, what exactly am I supposed to do?" We can't all move to the country.

Umm, how about trying to get on the HOA board of directors and change the rules to be a bit more flag friendly? Or, you could talk to your neighbors and see where they stand on a reasonably sized flags, door color, yard flamingos, etc. and bring it up at the next HOA meeting. If you opted into a HOA where you have zero input, well, that was your mistake.

|6.29.06 @ 7:36PM|#

Daniel,

How about if Congress passes a law making it legal for anyone to enter your home whenever they feel like it? Or maybe a law that says women can't forbid men to have sex with them? There's something to be said for a law that only lets people do more things, right?

Lots of organizations and businesses are "mini-fascist with little chance for people to change how they are run." So what? Should every form of human association be required to be modeled off of democratic government? Isn't it better to let individuals bargain amongst themselves to establish the terms on which they associate with one another?

I'm sorry if your local real estate market doesn't offer you housing on exactly the terms you wish it did. I rent an apartment, and there are certain rules I have to abide by--limits on noise, for example. If I had rented my apartment more recently, I wouldn't be able to own a pet. It's a sad fact of life that we have to make concessions to others in order to entice them to give us things we want.

|6.29.06 @ 8:14PM|#

I guess one is fucked when practically every place to live is under a "consensual"' nazi- HOA?

|6.29.06 @ 8:34PM|#

jd, you almost always have to give up something in order to get something else from others. Sometimes it's money, sometimes it's discretionary power, sometimes other things.

Of course we all sometimes wish we could just take what we want without giving up anything we value. I wish I could buy a new car without giving up thousands of dollars. I wish the software company I work for let me use open-source-licensed source code. I wish I could play loud music in my apartment whenever I felt like it. I wish I could have a romantic relationship without giving up the freedom of being single.

But that's not the way life is, unless you're living in a dictatorship, and you're the dictator.

BTW, where is this place (town, city, county...?) where no housing is available except from an HOA?

|6.29.06 @ 9:25PM|#

Question: is it not possible to offer an HOA enough money to buy all rights over a given piece of property? If so, and if it really means that much to you to live right there without being subject to the rules that would otherwise apply, then that seems like a solution. If you'd rather give up the discretionary power instead of the extra money it would take to keep it, then I guess you should do that.

Jennifer|6.29.06 @ 9:55PM|#

How about if Congress passes a law making it legal for anyone to enter your home whenever they feel like it? Or maybe a law that says women can't forbid men to have sex with them? There's something to be said for a law that only lets people do more things, right?

Because, you know, there's really no difference between a law which says "Do what you want with your home" and "do what you want with any woman you see, even if she doesn't agree." Rape a woman, put a flag on your house--the same exact thing. Put a flag on your house, let any stranger who wants to come into your house--can anyone tell the difference here? Because I sure as hell can't.

|6.29.06 @ 11:36PM|#

Question: is it not possible to offer an HOA enough money to buy all rights over a given piece of property?

No, it is not. Consider that the other residents bought with the understanding that everyone else in the subdivision would adhere to the bylaws. Unless you are the first in and can afford to buy an entire development...even then, I am sure there are other issues that would complicate the matter.

|6.30.06 @ 12:23AM|#

Windypundit says:

Or just break the rules and fly the flag anyway. It's not like the homeowner's association can toss you in jail.

Exactly. Voilating the terms of a civil contract is not a crime.

If an HOA member hoists a big flag just on July 4th or a little flag on his door all year, the HOA isn't going to take him to a civil court either.

In a contract dispute, the question before the court is not just whether or not one of the parties violated the terms of the contract. There is another question: "What are the damages?"
Zilch, in this case.

|6.30.06 @ 12:50AM|#

Jennifer,

Of course there are differences between flying a flag in opposition to HOA rules, entering someone's house uninvited, and raping a woman. However, these actions have at least one thing in common: each is a prohibited act that could be authorized by legislation.

That similarity is the only similarity required by my argument. My point was to challenge the idea that if a law "lets people do more things," then that's a compelling argument in its favor. I think the examples I chose effectively made my point.

highnumber,

Thanks for your response. In theory, couldn't you offer money to all members of the HOA to get them to release the property you're interested in, without actually going so far as to buy the whole development?

|6.30.06 @ 1:02AM|#

In theory, maybe. You would need to have an att'y look at the decs & bylaws.
It would seem to be much easier (and cheaper) to be nice to the HOA and try to change them from within via a democratic process.

|6.30.06 @ 1:54AM|#

Let me state for the record, I agree with Mr Hanneken. If you don't like the rules put forward by the HOA, don't buy there.
Imagine that you own and live on a large parcel of land outside a city. Suburbia has finally made its way to your neck of the woods. You decide to sell off most off your parcel to anyone who wants it, but you have one covenant: No garden gnomes. Some joker buys the land from you knowing full well that you have no tolerance for garden gnomes and have expressly forbid anyone from entering into a contract with you if they are planning to put garden gnomes out on their lawn. Once the sale is closed on his property, he moves in along with his 1300 garden gnomes, all of them displayed prominently in his front yard, in full view of your living room window. Who is in the wrong here? Should the federal gov't step in to say that garden gnomes are everyone's right, or should the joker be forced to adhere to the contract he signed with me?

|6.30.06 @ 3:13AM|#

Russell:
"How about if Congress passes a law making it legal for anyone to enter your home whenever they feel like it? Or maybe a law that says women can't forbid men to have sex with them? There's something to be said for a law that only lets people do more things, right?"
Maybe there should be a HitnRun version of Godwin's law, just for Russell: the longer one doesn't agree with the "right" opinions, the faster one gets accused of supporting rape. Jesus H Christ on a jumped up pogo-stick, that rape law analogy was sad.
Don't be childish: you know full well that a law which protects one from being interfered with in his personal freedoms bears no comparison with a law which allows one person to interfere with another's.
And since I'm not complaining about my personal HOA, all of the ad hominem arguments (russel, kwix) were pointless. I don't dislike my HOA, and I do participate. I was speaking on others' behalf.
Besides, people, no one is saying, "this law is a great idea" even though several of you tried to pretend I did. My question was, "is this really so bad?" Of course it sucks, and I'd vote to rid Congress of a man who wasted one cent of taxpayer money researching, authoring and voting this bill into place, but compared to most bills Congress passes, which greatly limit our freedom in and out of contract, this doesn't even register. But what do I know--according to Russell, I support permissive rape laws.

|6.30.06 @ 7:11AM|#

Daniel,

I wasn't accusing you of supporting rape.

In defense of the law forcing HOAs to allow residents to fly American flags, you wrote, "Sorry, but there is something to be said for a law which only lets people do more things." The point of my response was that this isn't an impressive argument in defense of the flag law, since the same thing could be said of (among other things) a law legalizing rape.

In other words, the form of my argument was reductio ad absurdum, not argumentum ad hominem. I thought that was obvious.

You wrote, "you know full well that a law which protects one from being interfered with in his personal freedoms bears no comparison with a law which allows one person to interfere with another's." The "Freedom to Display the American Flag Act" does interfere with freedom--the freedom to make and enforce contracts. Yes, the interference is relatively minor.

I'm glad we can both agree that the bill sucks.

|6.30.06 @ 10:02AM|#

Hmm, if we take a look at the roll call votes for June 27, it does indeed appear that Ron Paul was in attendance, and one could infer that Mr. Paul did not object to the voice vote. HOW COULD YOU BETRAY THE CAUSE, RON??? Oh the humanity.

|6.30.06 @ 10:05AM|#

Tonio =

Gilmore, Uh, I am gay, and fully support gay marriage. Now, what was it you were saying?

Congratulations. Does that make the 'protecting the flag' issue any more 'commonsense'? Your orientation (which is moot, btw - not a 'get out of nonsense-free card') if anything should at least provide some insight into the lack of necessity for the government to 'protect' things that dont need protecting... like marriage. The point was not about what I assumed you 'think' but to draw comparisons to other silly uncessary interferences by government into voluntary choices made by individuals between themselves. No crow-buffet necessary. That sound you heard was the point passing overhead.

The issue you seem to miss is the voluntary contract issue - this isnt a matter of the state a la France banning the 'excessive' (subjective) display of certain items (like religious symbols)... they're trying to create some special class for 'nationalist symbols'. the fact is, the law is unecessary and stupid. And should be objected to simply on the basis that congress certainly has bigger fish to fry.

Cheers,

JG

|6.30.06 @ 12:45PM|#

Wait a minute. This isn't about freedom. Its about infringment. Many of these condos don't have yards to fly a flag in. They don't have siding where they can attach a flag pole. When you buy a condo, you buy inside walls, and everthing else is common property (although some is limited common.) You want to fly a flag on common property? I want to hang an "I love NAMBLA" flag on the exterior siding above your garage.

When people live this close to each other, the externalities become magnified, and simple rules are needed to keep in line, simple-minded people who are unaware that more or equally important people live right next to them. First guy to fly a flag in our common property can watch me butcher a deer right under it. Hey, the bylaws don't mention rendering.

|6.30.06 @ 2:40PM|#

Gilmore,

Your orientation (which is moot, btw - not a 'get out of nonsense-free card') if anything should at least provide some insight into the lack of necessity for the government to 'protect' things that dont need protecting... like marriage.

The only reason I brought it up is that you baited me as a suspected homophobe, and it turned out rather badly for you, which you don't seem to accept.

My orientation is indeed moot for debating the flag law on the merits, but not moot for purposes of replying to demonstrably false ad hominem attacks from people who can't seem to stick to the merits.

An apology for your presumption of my homophobia would have been a rather classier way to procede than accusing me of playing the victim card.

It's also very presumptuous of you to lecture me on what political insights my sexual orientation should provide me.

I see no need for me to continue debating the merits of the flag law on this thread.

Sincerely,

Anthony

|6.30.06 @ 3:18PM|#

Daniel,
And since I'm not complaining about my personal HOA, all of the ad hominem arguments (russel, kwix) were pointless.

If you are not complaining about your personal HOA then why did you state: In an impacted housing market where my tiny-ass, 20 year old, 1100 sq ft condo goes for a half-million, and all (practically all?) the condos and homes in this town belong to some sort of HOA with extensive picky rules, what exactly am I supposed to do?

It is not an ad hominem if you specifically ask for advice in your situation. You asked what you could do and I offered suggestions.

|7.1.06 @ 1:11PM|#

Suppose that HOA's did at some point replace all city wide owned neighborhoods as we know them - that would be the anarcho-capitalist libertarian position wouldn't it? While there would be choices available, one might have to actually move out of a whole state to find a neighborhood fitting one's choices. I can imagine certain areas of the country discriminating against various minority groups, for example. In the end, what we might get would be some libertarian like communities, some liberal ones, but then some very disturbing little theocracies, with various forms of racial and sexual discrimination or abuse (ala the fundamentalist mormon groups who marry off girls younger than 13 to older men who already have more than one wife) and small nazi societies as well. If they go on to build private armies, we could end up with lots of little internecine wars within our borders. I think it makes more sense to guarantee a few basic rights, that even supercede HOA contracts - I'm not saying flag flying should be one of them - but I do see the limits of HOA's as a complete replacement for what we have now.