By David Tulis

(March 27, 2012) Chattanooga college professor Warren Mackey is a man of much fruit. He enjoys a rich and varied life that  intersects with the lives of many people in Hamilton County.  A man with family roots in Alabama, his World War II veteran dad moved to Chattanooga to work in the foundries. Dr. Mackey toiled at studies and obtained a doctorate in history from Middle Tennessee State University, and he teaches history at Chatt State. He’s married to his college sweetheart, Cheryl.

The father of two and the guardian of two grandsons, Dr. Mackey is a member of Orchard Knob Missionary Baptist church, where he holds the office of deacon. Dr. Mackey, who represents his part of town on the Hamilton County commission, believes in the value of hard work and many other benefits that arise from Christianity and the system of law and culture it has brought into place.“

I believe in the dignity of labor,” Dr. Mackey says on his website. “I believe that everyone should work and be productive citizens.  While we are all born with different gifts and abilities, we should all labor to enhance the general welfare of society.”

THIS WEEK IN the chambers of the U.S. Supreme Court in Washington, an argument will unfold as to whether Dr. Mackey and millions of other adults have the right to enter into contracts as part of their labor. The right to contract — or to not — is an inherent right to property. Your right to enter a contract is no less yours than the right to own a house, possess a Macintosh computer or keep a toolshed. This foundational right is at issue in the battle over the constitutionality of Obamacare. In much of the commentary we’ve read about this milestone in federal beneficence, we’ve seen little attention paid to the effect of the so-called personal mandate upon the common man.

A contract is an agreement between at least two parties to bind themselves according to its  terms. Dr. Mackey probably has involved himself in contracts for new gutters on his house, book projects with deadlines, speaking engagements and the like. Many people in his field are nomads who work by one-year college contracts. In such arrangements, Dr. Mackey and the other party agree to serve each other for consideration, for a mutual exchange of benefits or assets. Usually, one party performs a service in exchange for a check. For mutual benefit, a contract imposes a mutual servitude.A contract signed by Dr. Mackey requires several essential elements to be enforceable. Now this statement may sound like we are wandering off into some tedious legal thicket, but it’s not. Contracts need to be enforceable if we are to have commerce and profit. Without the enforceability of contract there is no industry, no way to secure future services or shipments, mere chaos. The backside of the idea of enforceability is equally as important, and where I want to look more closely.If a contract lacks any essential elements that touch on the local economy vitals of grace, free will and mutual interest, they are unenforceable.

Under President Obama’s health reform, Dr. Mackey is expected to enter contractual agreements with Blue Cross or another insurance carrier, or be punished. Under the threat of rising fines, Dr. Mackey is expected to exercise his free will to sign a lawful contract between him and the officials on the downtown hilltop.

The paperwork that emerges from Dr. Mackey’s meeting with the insurer lacks two essential virtues to make the deal enforceable — or legal: Mutuality and offer (also called “meeting of the minds”). These two are distinct legal concepts, but we can discuss them as a single idea.

MUTUALITY IS AN ASPECT of a contract is essential to the success of any economy, local or national. Mutuality is a warm, friendly term describing two parties operating at liberty, sharing benefits and happily consenting to a project benefiting of both. In the term mutuality, I have a picture of Dr. Mackey, a handsome and cultivated man, coming to a smiling handshake with, say, Mike Coffey of Chattanooga, a small businessman who recently replaced the gutters on my house in Soddy-Daisy and whom I would recommend to anyone needing such work. Two honorable men, Mackey and Coffey, a simple and friendly agreement, a plan with a deadline, a stipulated reward.If there is no mutual assent or meeting of the minds for the new gutters, there is no contract. If there is coercion (force) or fraud (deceit), there is no contract. An agreement conceived absent these keystone points of local economy is not just voidable, but void ab initio (void from the beginning).

➤  “There must be mutual assent or a meeting of the minds on all the essential elements or terms to form a binding contract, and, in some jurisdictions, the parties must also have a present intend to be bound by their agreement. *** The omission of a material element from a contract renders the contract unenforceable because there has been no meeting of the minds” (American Jurisprudence 2d, Contracts).

➤  “One has a right to determine with whom he will contract, and he cannot have another person thrust upon him without his consent.”  Tennessee Jurisprudence, McClanahan vs. State Auto Mutual Ins. Co., 21 tenn. Ap. 249, 106 S.W. 2d 1102 (1937)

➤ “Mutual consent must be free from fraud, duress or undue influence.”  Tennessee Jurisprudence, American Lead Pencil Co. v. Nashville, C. & St. L. Ry., 124 Tenn. 57, 134 S.W. 613 (1910)

NO CHATTANOOGAN HAS an absolute right to contract. Two drug dealers cannot sue to enforce performance of a contract to deliver gray market contraband to a warehouse on the Southside. Gambling contracts are not legal. Still, Dr. Mackey, who represents the people in his district and who for our purposes signifies everyman, has an absolute right to NOT contract.

That means if the federal Congress’ “personal mandate” comes into effect to coerce this Christian family man, he has many grounds upon which to resist — if he cared to.

Dr. Mackey demurs on saying whether Obamacare is good or bad. “Government regulates society to a high degree,” he said in an interview. To attend public school, a child must be vaccinated. Charity cases at Erlanger have to be cared for —  we already have universal health care. Of 33 leading world economies, he said, 32 have the equivalent of national healthcare system. Are they wrong and the U.S. is right? How does a person already subject to myriad rules and regulations know when to say any given new statute goes too far? he wonders. Dr. Mackey, who is charitable and civic minded, may not be a person to find Obamacare intolerable enough to resist in court.

BUT IF HE DID, he would have contract law on his side. He would have a second weapon in his defense. This blunt instrument is propped against a provision in the Tennessee constitution.

Tennessee’s declaration of rights recognizes a procedural right to be free of coercive takings except by due process. “That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.” (Tennessee Constitution, Article 1, section 8)

In other words, no one can seize Dr. Mackey’s property without due process of law. Any attempt to force him into a contract is, in fact, a disseizing of his freehold and liberties. To prosecute this or any other man for refusing to enter into a contract with an insurance company would be a hopeless labor for any prosecutor.

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