— American Jurisprudunce 2d, Duress and Undue Influence
Everyone has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent.
— McClanahan v. State Automobile Mut. Ins. Co. 21 Tenn. App. 249; 108 S.W.2d 1102; 1937 Tenn. App. Lexis 28.
You lived most your life without getting to exercise many rights your forebears enjoyed. If you’re like me, you think nothing of it. We live in a degraded state of law that recognizes exaggerated claims to personal freedom (abortion, sodomy) on one side, and grants of exaggerated authority to the state on the other (licensure, taxation, search and seizure, surveillance).
The picture has been grim a long time. But not all is lost. You possess a fundamental property right that is still largely intact in our day of statist scrupulosity. It is the right to contract.
You might be forced into a government program, but you cannot be forced into a contract with anyone or any business whatsoever, despite the U.S. supreme court ruling upholding the personal mandate as a tax and the government’s need for new revenue streams in the insurance industry to cover its built-in cost overruns.
While you can resist entering into contracts, it’s almost impossible to avoid government programs. You may have no choice but to be involved in social security through constraints imposed by an employer. You may not be free to escape a county inspection of your new building or of the wiring. You may not to be a free driver on the people’s roads in your car, and so you enter the state highway safety program as a licensed operator of a motor vehicle. Some programs you enter reluctantly, others eagerly. So much free money abounds. Scholarships. U.S.-backed small business loans. You enter a government program for a benefit, or because you seemingly are forced into it as an entanglement and an unavoidable evil. In our schizophrenic age, it’s possible to be involved in both sorts of programs, and think nothing of it. ‡
Compulsory commerce? The backside of your right to contract
The beauty of the right to positively enter into most any contract is the backside of that right.
The power to contract is the same as the power to NOT CONTRACT. As I showed earlier, the Affordable Care Act brings attention to this right by attacking it.
As a Tennessean you have a right to enter an enforceable and binding agreement with another party. A contract is not so much the writing of it, the paperwork and the pages of legalese, but the agreement itself. One form of contract with which you are familiar is a contract of adhesion, a one-sided agreement you make with a First Tennessee, AT&T, EPB or State Farm. You fill it out and accept in toto, without any attempt at negotiating terms. We are customers, bound by the contract, which periodically is amended by the company in notices sent with the bill and kept in your records.
Even such seemingly one-sided contracts are enforceable, even if you didn’t read the fine print. But you as a free person accept the terms of the contract because you see largely the benefit the big company provides. Reliable Internet or hassle-free phone service are conveniences, and the terms of most such contracts you blindly accept as routine and not terribly important.
Even though you are party to such a contract, the whole of which gloms like a glue pad onto your person and attaches to your commercial avatar, that does not mean you have lost your liberty. You are free to enter — or avoid — them.
Signing contract at gunpoint
If a salesman for a local utility came to your house as the last neighborhood holdout for his service, and ordered you to sign the application form and contract, you would simply laugh at him and tell him to get lost. But if he whispers into your ear that he will kill your wife with a car bomb or publish your private files on the Internet if you didn’t sign, you would look at things differently.
His threat might be enough to convince you to sign the contract as the lesser of two evils. So you sign the agreement, bind yourself to performance of its terms and become a customer.
But such a threat creates duress, which injects a fatal flaw into the contract. An ancient American law dictionary, Bouvier’s, describes duress with a certain beauty of phrasing: “An actual or a threatened violence or restraint of a man’s person, contrary to law, to compel him to enter into a contract, or to discharge one.” In the 18th century duress was a threat of physical violence upon one’s person. Today it means any wrongful threat that overcomes the free will of the party. Duress poisons a contract because it eliminates free will, consent and mutuality. A contract against one’s will lacks what the law books refer to as a “meeting of the minds.”
Duress makes you do something against your own judgment. It is a threat made to obtain your consent to a commitment and to give it the appearance of your accord. The meeting of the minds, however, is not just subjective, but an objective manifestation of mutual assent; to some extent, subjective intent is irrelevant if each party understands the terms of the agreement in the same way. The sort of threat that creates duress would include the use of civil process in bad faith, which I suppose would include an IRS civil lawsuit or penalties if you file a 1040 tax return.
Fraud made to look proper by a contract
Duress could include what the law books call “economic duress,” a relatively new form of judicial interventionism that seeks to have the state override contract rights. One basis for economic duress claims is the inequality of two parties. The trend for courts to rewrite lawful contracts is an evil, but gives rise to a defense against a government-compelled contract.. But economic duress, a leaner sort, might give rise to a circumstance making a contract voidable. Duress is provable when a threat against you is improver and you as the aggrieved party have no other reasonable alternative other than to assent. Another requirement that duress must impose is that the transaction is unfair to you when you are acting as a “person of ordinary firmness.”
Why does the law recognize duress?
It wants to discourage and prevent a party that is stronger from abusing his power by presenting an unreasonable set of alternatives to another person in a weaker and more vulnerable position in a bargaining situation. It is a type of fraud, but with the victim painfully aware it is happening (as opposed to being victimized unawares).
If you are being pressured into a contract under duress, the threat can even be understood as coming from a third party, according to my authorities. In other words, your coerced contract with United Health or BlueCross & BlueShield under Obamacare is voidable if you were coerced into it by a third party not directly involved. That would be Uncle, holding the rod.
A defense of duress would depend on the circumstances, one’s state of mind, and one’s character. A college graduate who knows a little contract law might have trouble proving the subjective state of duress. An uneducated Hamilton County resident easily bluffed by officials might more easily establish duress as a fact discernible by a jury. An attorney or accountant would have a much more difficult time proving duress.
Your rights precede the constitution
How far might the Tennessee constitution be pressed into service to protect your rights against the alien jurisdiction of the United States? Here is a bird’s-eye passage from the 19th century that frames the issue well.
[I]n considering State Constitutions, we must not commit the mistake of supposing that because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the rights of the governed. A Constitution is not the beginning of a community nor the origin of private rights; it is not the foundation of law nor the incipient state of government; it is not the cause, but the consequence, of personal and political freedom; it grants no rights to the people, but is the creature of their power, the instrument of their convenience, designed for their protection in the enjoyment of the rights and powers which they possessed before the Constitution was made; it is but the frame-work of the political government, and necessarily based upon the pre-existing condition of laws, rights, habits, and modes of thought.”
(Post, cited in The Stratton Claimants v. The Morris Claimants,
89 Tenn. 497, *; 15 S.W. 87, **; 1890 Tenn. LEXIS 76, ***1)
Conversations with two readers give me pause. One of them, the Gnome of Strawberry Plains, says my arguments are useless because everyone who has a social security number is subject to these requirements because he is an article in commerce, and a subject to the total welfare state. The argument of duress makes no difference. Another reader, in a note about the licensing of his entire line of work, makes a gloomy comment: “You’re missing the big picture. Not just work. Birth, education, marriage, churches, dwellings, ‘freedom’ to travel/protest/bear-arms/work, death, medical care, death — everything we do/have/participate in requires state permission/licensing/certification.”