you have agreed with an auto dealer to purchase the luxurious
Belchfire X-1 automobile, for which you agree to pay $45,000,
with monthly payments to extend over a period of three years.
You sign the sales agreement, and are then told to return the
following day to sign the formal contract, which you do. When
you arrive two days later to pick up the car, the dealer presents
you with the title and keys to a much lesser model, the Klunkermobile
J. When you ask the dealer to explain the switch, he points to
a provision in the contract that reads: "Dealer shall be
entitled to make ‘reasonable’ adjustments it considers to be ‘necessary
and proper’ to further the ‘general welfare’ of the parties hereto."
He also tells you that the amount of the payments will remain
the same as for the Belchfire X-1; that to provide otherwise would
be to impair the obligations of the contract. You strongly object,
arguing that the dealer is making a fundamental alteration of
the contract. The dealer then informs you that this dispute will
be reviewed by a third party – his brother-in-law – who will render
a decision in the matter.
the study of Constitutional Law!
for the existence of political systems has, at least since the
Enlightenment, depended upon the illusion of a "social contract";
that governments come into existence only through the "consent
of the governed" as expressed in a written constitution.
I know of no state system that ever originated by a contract among
individuals. This is particularly true in America, where the detailed
history of the drafting and ratification of the Constitution illustrates
the present system having been coercively imposed by some upon
others. If you doubt this, a reading of the history of Rhode Island
will provide you with one example.
By its very
nature, a contract depends upon a voluntary commitment by two
or more persons to bind themselves to a clearly-expressed agreement.
The common law courts have always held that agreements entered
into through coercion, fraud, or any other practice that does
not reflect a "meeting of the minds" of individuals
are wholly unenforceable. Nor have the courts looked favorably
upon transactions that purport to bind parties forever. If I should
agree to work for you for $5,000 a month and, after two years
of such employment, choose to go work elsewhere, no court of law
– not even in Texas – would compel me to continue working for
that contractual obligations can arise other than through voluntary
undertakings has been firmly established in our culture. Statist
efforts to impose duties upon others are often promoted under
the myth of an "implied" contract (e.g., by driving
a car, you "impliedly consent" to purchase insurance;
by living in America you "impliedly consent" to be bound
to obligations to which you never agreed). By this logic, if I
lived in a high-crime area, it could be argued that I had "impliedly
consented" to be mugged, or to be bound by the rules of the
local street-corner gang. The idea that the government can force
people into contractual relationships is at the heart of the current
Supreme Court case dealing with "Obamacare." The enactment
of such a form of "involuntary servitude" is what leads
a few thoughtful minds to question whether it violates the 13th
the fantasy of a "social contract" theory of the state
creates more fundamental problems. The legitimacy of a contract
depends upon the existence of "consideration." This
means that the party seeking enforcement must demonstrate a changing
of one’s legal position to their detriment (e.g., giving up something
of value, making a binding promise, foregoing a right, etc.) Statists
may argue that their system satisfies this requirement – by supposedly
agreeing to protect the lives and property of the citizenry, and
agreeing to respect those rights of people that are spelled out
in the "Bill of Rights." The problem is that – thanks
to the opinions of numerous brothers-in-law who comprise the Supreme
Court – the powers given to the state have been given expansive
definitions, and the rights protected by the "Bill of Rights"
are given an increasingly narrow interpretation.
exclusive authority to declare war is now exercised by presidential
whim; while its power to legislate does not depend upon any proposed
law having been either fully drafted or read! Fourth and Fifth
Amendment "guarantees" re "searches and seizures"
or "due process of law" are so routinely violated as
to arouse little attention from Boobus Americanus. First Amendment
rights of "speech" allow the state to confine speakers
to wire cages kept distant from their intended audiences, while
the right of "peaceable assembly" is no hindrance to
police-state brutalities directed against peaceful protestors.
With very little criticism from Boobus, one president declared
his support for a dictatorship, while his successor proclaimed
to the world his unilateral authority to kill anyone of his choosing
– including Americans! Meanwhile, torture and the indefinite detention
of people without trial continue to be accepted practices.
conditioned to believe that the Constitution exists to limit the
powers of the state and to guarantee your liberty, you try employing
such reasoning with the car dealer. You direct his attention to
another contractual provision that reads: "All rights under
this agreement not reserved to the Dealer shall belong to the
Buyer." But he tells you that he is adhering to the specific
terms of the contract by making "reasonable adjustments"
that are "necessary and proper" to "further the
general welfare of the parties." Whatever "rights"
you have are, by definition, limited by this broad grant of authority.
where conservatives get so confused over the inherently repressive
nature of the Constitution. They tend to believe that the 10th
Amendment "guarantees" to them – and/or the states –
"powers not delegated to the United States." But the
federal government powers enumerated in this document are overly
broad (e.g., "general welfare," "necessary and
proper," and "reasonable") and must be interpreted.
This authority to provide the government with such powers to interpret
its own powers is nowhere spelled out in the Constitution; but
was usurped by the Supreme Court in the case of Marbury v. Madison.
courts – or the car dealer’s brother-in-law – define the range
of the parties’ respective authorities, the mutually-exclusive
logic of the 10th Amendment applies: if the government
or the dealer is recognized as having expansive definitions of
authority, there is very little that remains inviolate for the
individual. The language of the 9th Amendment is more
suitable to the argument on behalf of a broader definition of
liberty. This provision reads: "The enumeration in the Constitution,
of certain rights, shall not be construed to deny or disparage
others retained by the people." This catch-all language suggests
that the Ninth Amendment protections are far broader than the
combined "rights" of all the other amendments. A reading
of judicial history reveals only a very small handful of cases
ever having been decided under this section. Of course, the words
in this amendment are also subject to interpretation by state
officials. This fact is what conservatives fail to understand
when they bleat about wanting "to get back to the Constitution."
The government has never strayed from the Constitution; these
words have been in that document from the beginning. They have,
however, been interpreted according to the ever-changing preferences
of those in power.
As the state
continues to not simply eat away at – but to gluttonously devour
– the liberty its defenders still pretend it is its purpose to
protect, it is timely to consider the remedies available to individuals.
As one who prefers the peaceful processes of a civilized society
– rather than the violent and destructive means that define the
state – my thoughts return to contract theory. I must admit, at
the outset, that the make-believe "social contract"
foundations of the state, reveal the wholesale breach of the obligations
of both parties. The failure of the state to restrain its voracious
and ruinous appetites is already a matter of record, even to its
defenders whose intellectual dishonesty and/or cowardice will
not permit them to express the fact. But there is a concurrent
obligation on the part of those subject to state rule that finds
expression in words carved onto the entrance to the Nebraska state
capitol building: "The Salvation of the State is Watchfulness
in the Citizen." It was the failure of most people to live
up to this standard that led me to write, a few years ago, about
the need to impeach the American people! The "watchfulness"
of most Americans is confined to such television programs as "American
Idol" or "Dancing With the Stars."
breaches on both sides of this alleged contract are of such enormity
as would lead any competent court of law to regard any such "agreement"
as a nullity; subject to enforcement by neither party. Such defenses
as "frustration of purpose," "impossibility of
performance," "unconscionability," "unequal
bargaining power," "fraud in the inducement," and
other concepts have regularly been used by the courts to excuse
further performance by the parties to a contract.
that we respond to our alleged obligations to the state – duties
we never agreed to in the first place – in the same manner by
which we would treat our hypothetical car dealer in the marketplace:
to walk away and take our business elsewhere! Whatever goods or
services we desire in our lives, and which we have been conditioned
to believe can only be provided by the state, can be found in
the willingness of our neighbors to freely and genuinely contract
with us in ways that do not depend upon predation, restraint,
or violence. It is time for us to discover the peaceful and creative
nature of a society grounded in a voluntary "meeting of the
minds" of free men and women!