“Everything in Public Is by Contract”: Consent, Licenses and Contract Theory

What the contract theory says

This page is for education, information and intellectual discussion. It explains what each authority says and what each court decided. It does not tell anyone to use these arguments, and it is not legal advice.

The contract theory starts from a true premise: in private law, a person is generally bound only by obligations he or she agreed to. It then treats public relationships the same way. On this view, a driver’s license is a contract, signing an application is acceptance of an offer, and using a public benefit is consent to the government’s terms. If no contract was knowingly made, there is no obligation, and a signature can be “revoked … ab initio.”

Right to travel affidavits apply the contract theory directly. They “cancel” a driver’s license as a “contract and agreement,” declare all hidden contracts void for lack of full disclosure, and cite cases on waiver, unconscionability and consideration.

Consent of the governed: the political theory

MEN being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent.

John Locke, Second Treatise of Government § 95 (1690)

Social contract theory is the strongest source for the idea that public life rests on agreement. The Declaration of Independence says governments derive “their just powers from the consent of the governed.” Locke, whose work shaped that language, also explained how he thought consent is given.

… every man, that hath any possessions, or enjoyment, of any part of the dominions of any government, doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it; whether this his possession be of land … or a lodging only for a week; or whether it be barely travelling freely on the highway …

John Locke, Second Treatise of Government § 119 (1690)

In Locke’s account, the consent that binds a person to obey the law comes from being present and enjoying the protection of a government, including travelling on its highways. In § 122 he adds that only an express promise makes someone a full member of the society.

Public law obligations do not come from contract

Courts treat criminal law, traffic law and taxes as public law. Those duties come from constitutions and statutes passed by elected legislatures, and they apply to everyone within the jurisdiction. In Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905), the Court said the Constitution “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”

A license is permission to do something that would otherwise be prohibited. States require a license to drive under their police power (Hendrick v. Maryland, 1915). A license is not a private contract, so it cannot be ended by a notice of cancellation. Once issued, though, a license is an interest the state may not take away without due process (Bell v. Burson, 402 U.S. 535, 539 (1971)).

Where contract ideas do appear in public law

• Implied-consent laws. Every state treats driving as consent to a breath or blood alcohol test after a lawful DUI arrest, for example Cal. Veh. Code § 23612(a)(1)(A): “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing.” In Birchfield v. North Dakota (2016), the Court allowed civil and evidentiary penalties for refusal but barred criminal penalties for refusing a blood test.
• Unconstitutional conditions. A state “may not impose conditions which require the relinquishment of constitutional rights” as the price of a privilege (Frost & Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 593–594 (1926)).
• Government contracts. When the government borrows or buys, it is bound by its contracts. In Perry v. United States (1935), the Court held Congress could not cancel the gold clause in the government’s own bonds.
• The Contract Clause. Article I, Section 10 bars states from passing any “Law impairing the Obligation of Contracts.” In Home Building & Loan Ass’n v. Blaisdell (1934), the Court still upheld a mortgage moratorium as a reasonable use of the police power.

The contract cases quoted in right to travel affidavits

Brady v. United States, 397 U.S. 742 (1970)

Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.

Brady v. United States, 397 U.S. 742, 748 (1970)

What the case was about: Brady pleaded guilty to federal kidnapping to avoid a possible death sentence. The Court held his guilty plea valid.

How it applies: This is the standard for waiving the right to trial by pleading guilty. It is quoted accurately. Affidavits sometimes cite it as “379 U.S.”; the volume is 397. The companion cite, United States v. O’Dell, 160 F.2d 304 (6th Cir. 1947), is a tax-levy case that does not discuss waiver.

Franklin Fire Ins. Co. v. Noll, 115 Ind. App. 289, 58 N.E.2d 947 (1945)

An unconscionable contract has been defined to be such as no sensible man not under delusion, duress or in distress would make and such as no honest and fair man would accept.

Franklin Fire Ins. Co. v. Noll, 115 Ind. App. 289, 294 (1945)

What the case was about: An insurer sued landlords for fire damage. The court held that a lease clause releasing the landlords was not unconscionable and enforced it.

Alexander v. Bosworth, 26 Cal. App. 589, 147 P. 607 (1915)

Of course, a party cannot be bound by a contract that he has not made or authorized, and the principle is well settled that the liability of a surety is not to be extended, without his consent, beyond the precise terms of his contract.

Alexander v. Bosworth, 26 Cal. App. 589, 599 (1915)

What the case was about: A wife pledged her property as security for her husband’s guaranty. He later extended the guaranty without her consent, which released her as a surety.

How it applies: This is an ordinary suretyship rule between private parties.

Reading R.R. Co. v. Johnson, 7 Watts & Serg. 317 (Pa. 1844)

What the case was about: A plaintiff sued the railroad on a promise to pay its contractors’ debt. The court held the promise unenforceable because there was no consideration: “A mere promise to pay the debt of another without consideration is not obligatory.”

How it applies: The sentences affidavits attribute to this case about consideration as the “life blood” of an agreement and “want of jurisdiction” do not appear in it.

Quasi-contract

Affidavits refer to a “presumed quasi-contractus” between the signer and the government. In law, a quasi-contract is not an agreement at all. It is “a legal obligation imposed by law to prevent unjust enrichment,” and “a court may impose an obligation without regard to the intent of the parties” (Cornell LII, Wex). Public duties such as traffic rules rest on statutes, not on quasi-contract.

How to check the contract theory claim yourself

The best test of contract theory is simple: look for a court that accepted it. We have not found one in the reported decisions. Next, read the actual law the claim points to. For example, check the statute, the UCC section or the constitutional text it cites. Then compare that text with what the claim says it means. For a real problem with a debt, a court case or a tax bill, a licensed attorney can explain your actual options. Our directory is a good place to start.

Sources and further reading

Official sources used on this page:

• gutenberg.org
• law.cornell.edu
• law.cornell.edu
• california.public.law
• law.cornell.edu

Related reading on Lawtopolis:

• Contract Law and Consent: How Contracts Form and When They Bind
• Public Law and Private Law: The Two Branches of the Legal System
• The "Right to Travel" Affidavit: Every Authority Reviewed
• Hale v. Henkel (1906): "The Individual May Stand Upon His Constitutional Rights"