Civil Rights Within the Association. Legislatures and courts must determine whether the consent or constitutionalist theories of residential association government best fosters the freedom that both theories claim as their goal. In any particular case, however, the balance of xxxxx and benefits for that community must remain an unknown. Neither legislatures nor courts can identify the associations in which the right of members to create binding illiberal rules creates a good that exceeds the loss to those members who discover that they have been 'enslaved' by their earlier renunciation of certain freedoms within the community. In this situation of uncertainty, government should apply to residential associations the same commitment to civil rights that guides the conduct of the city. Residential associations offer valuable opportunities for those who choose to opt out of certain restrictions on their ways of life. The consent theorist would insist that only those who seek the benefits of an illiberal community need join and that, therefore, the balance of xxxxx and benefits in a private residential association favors the enforcement of illiberal rules. Even though some individuals or families may lose their enthusiasm for the special goals or procedures of the association, the rest of the association will remain faithful to the polity; because the association is a self-selected community, government can be sure here--as it cannot in the case of a city--that dissenters are the exception, and believers the rule. It is impossible, however, to evaluate the extent of harm illiberal associations do to their members. First, even though a disempowered dissident may be drastically outnumbered by contented conformists at the time she calls on the government for protection, other members of her association may at a later date find themselves in her position. Second, conformity in the face of potential sanctions does not necessarily reflect endorsement of the illiberal regime. The very existence of state-enforced association rules discourages the exercise of civil rights by association members; indeed, such regulations are designed to discourage residents from attempting to exercise certain rights. Finally, the existence of illiberal rules may, over time, have a more profound influence in stifling heterogeneity: by promoting conformity of conduct in the short term, state-enforced rules may prevent residents from recognizing that certain rights have value. The state, by placing its power behind illiberal a...
