The can’s been kicked down the road a little, and we need to look at what a contract is.
Here’s a definition.
A contract is the right to demand that others listen when you scream. If you’re playing a private game, and someone cheats, that’s nobody’s business, unless you are following the Rules of Contract. Then, the courts are obligated to listen when you “state a claim.”
A contract is a coherent set of private rules describing performance, and stipulating penalties for nonperformance. A contract, unlike an agreement, a bargain or legally transparent engagement, can demand the attention of the public at large – without the ability to raise a hue and cry, a contract is meaningless. A contract can be called before the scrutiny of the public through the judiciary. That judiciary follows pre-established rules of adjudication and analysis to undertake public consideration of the contract, to quash controversy, and apply the penalties of contract as indicated. But a court does not write a contract – it merely reads it.
As an aside – we are evolving into a nasty nosy society where everyone knows everyone else’s business, and can not only gossip privately about it, but loudly squawk, no matter whether something is of any genuine interest to the noseyparker bellyaching about it. The fundamental requirement for a State involving itself in the peoples’ business, is to shut up where shutting up is indicated.
Contracts may be found to be invalid under common law in several ways. For instance, the legal incompetence of one of the partners to competently execute a contract makes a contract void and nugatory from the start.
Contracts that pretend to transact in, to convey inalienable rights, are inherently void regarding this attempt to convey them what is not conveyable by law. If that were not true, slavery itself would be legal through private contract law, sovereign to the public law. Even though the word “inalienable” is seen in the D of I, it also found its way into the text of most state constitutions. You can look it up.
The philosophy that inalienable rights cannot be conveyed by contract, is what made Dred Scott v. Sandford a wrong decision. But to overrule Dred Scott would also overthrow the principles of coverture in domestic marriage – they go hand-in-hand. Since women couldn’t vote at the time, nobody cared anyway.
[To be continued]