Commentary on Mercier's Invisible Contracts
by Jon Roland
Some commentators have interpreted the Invisible Contracts of "George Mercier" as arguing that there are valid unwritten contracts, but I interpret it as an attempt to provide a coherent theory of how government in the United States is usurping power to abuse people, not as a deontic theory of legitimacy but for explaining and predicting the ultra vires behavior of officials. As such, it is one of many such attempts to find a rationale for what is essentially, lawlessness. It is usually motivated by a desire on the part of the theorists to find a way to beat the usurpers at their own game, whatever that might be, preferably in court, because if that can't be done, if the officials are just "winging it", or fulfilling the wills of those who unduly influence them politically, there may be no recourse for individual justice than violence (or what lawyers call "self help"). Political action might work to avoid future injustice, but it doesn't do much for past or active instances of it.
The essence of the argument is that officials base much of their usurpation on the ancient equitable doctrine of quantum meruit, which provides a legal claim for compensation for "unjust enrichment", and for implicit consent to regulation if one has accepted some benefit, as an "understood" condition for enjoying that benefit. Applied to programs like the income tax on wages or Social Security, the argument is that since people are accepting the benefits of the taxes, either immediately or in the future, they are consenting to the taxes and to the "laws" intended to enforce their collection, even if the laws are not logically derivable from the Constitution. In other words, it is an attempt to hang all or most of the usurpations on the constitutional grant of equity jurisdiction to courts. It avoids the problem, however, that such constructive contracts or trusts are adhesion contracts, not consciously negotiated but imposed by government on people from a vastly unequal position of power on a "take it or leave it" or "just take it or else" basis. In commercial jurisprudence such contracts are generally held to be unenforceable if between private parties, but not when the power party is the government.
There is a basis for this doctrine in social contract theory, according to which those who continue to reside on the territory of a society consent to the social contract (or compact) that created the society, and to the constitutonal laws of that society. The social contract can then be considered a kind of adhesion contract, but one with only limited duties. It does not follow, however, that the same principle operates beyond the social contract, which is a unique kind of contract, sui generis, unlike commercial contracts.
Does the U.S. Constitution permit implied or adhesion contracts between government and private parties? No. That would require an explicit delegation of power, and there is none. The Commerce Clause and Necessary and Proper Clause do not provide authority for that, although those are the clauses which are commonly invoked to offer authority for usurpations. It could be regarded as the underlying rationale for the decision in Wickard v. Filburn, on which most federal penal powers are now claimed.
Whether it works as a predictive theory is another matter, and of course, even if one could predict the behavior of officials that doesn't mean the theory will provide any ways to play to beat them at their own game. A better theory for courts might be, "Abandon hope all ye who enter here".
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Maintained: Jon Roland of the Constitution Society
Original date: 2009/9/11 —