Ungating Suburbia: Property Rights, Political Participation, and Common Interest Communities

Most Americans no longer live in traditional communities. Instead, they live in suburban subdivisions littered with shopping malls, swimming pools, recreation centers, and private security forces. But improved living conditions, extra services, communal spaces, and increased property values come at a cost: we are now more segregated than ever. And in our isolation, the public realm eviscerates, the quality of public debate deteriorates, and the quality of American citizens degenerates. Courts and legislatures nonetheless have watched our communities become more homogenized and Balkanized with little interference, upholding all common interest community regulations deemed “reasonable.” This Note explores previous solutions to the problem of common interest community homogenization and Balkanization and argues that they are inadequate. This Note therefore interrogates the historical roots of private property rights and contends that private property secures not only economic liberty, but also fosters the development of social, moral, and political characteristics essential to political participation in a democracy. As a result, this Note asserts that communities have a fundamental right to be reasonably heterogeneous because diverse communities foster the social, moral, and political development of democratic citizens. This Note then proposes an alternative solution to problematic CIC regulations by combining the federalist concept of “laboratories of democracy” with republican “civic virtue,” a solution that addresses both federalist and republican concerns regarding democratic legitimacy. This Note concludes with the view that when courts analyze CIC restrictions, they should consider whether or not a CIC restriction unreasonably interferes with a community’s right to be heterogeneous.