And who gets to decide if the provisions are unconscionable? If I decide they are, what's to stop the other side from saying they are not and insisting the agreement remain in force? What makes me right and them wrong?
Being forced to live under tyranny is the epitome of unconscionable contract. Therefore, it is inherently unenforceable, as a matter of law, the military calculus not withstanding.
One man's tyranny is another man's government. You would have a hard time proving tyranny when you have all the representation that the Constituiton reserves for you and as much a say in the goverment as the other states.
Furthermore, freedom of association implies the right to quit any voluntarily entered association.
Then can the states combine and expel a single state from the Union against its will? In the name of 'freedom of association'?
BTW, I didn’t see your post dealing with the rather persuasive argument that the Constitution is not a suicide pact. I am interested in your opinion.
It is not a suicide pact. It is also not a club for one state to beat the remaining states with just because they want out. The Constitution protects all parties - those wanting to leave and those wanting to stay. Secession with the agreement of both sides is the only way that the interests of both sides can be protected.
That could very well happen if it was done quickly enough. That would be before the left figures out that the right is the side that pays their taxes.
In the case of individual contracts, a dispute of obligations is usually taken before a judge, who will determine whether the disputed provision is unconscionable. To be unconscionable, a provision must be “Unusually harsh and shocking to the conscience; that which is so grossly unfair” a judge will strike it out of the contract, as if it were never there.
Note that the concept pivots on conscience and an uncodified sense of unfairness. Though typically, case law provides some guidance, because, as you imply, not all consciences produce the same results.
So then, what is this appeal to conscience, if not a subterfuge for natural law? If so, then we do have a basis within our own law for rejecting as unlawful the imposition of a tyrannical relationship between individuals, and, by extension, larger associations.
Now, if you get a judge that thinks its OK to force you to continue attending the local country club, and puts a positive injunction in place to force you to attend once a week, what should you do? If you decided to ignore the injunction, further sanctions could be invoked, fines, incarceration, or worse, making you play golf at gunpoint!
My question to you is, at what point in the above, admittedly fantastic scenario, would you say, enough is enough, you cannot force me to do this? Because the answer to that question is precisely the point at which you must do what is technically illegal in order to do what is right.
And since the law abhors to undercut its own moral authority, it is at that very point at which most judges would likely find a contract provision, such as our unquitable country club, unconscionable.
Now, you state that one man’s tyranny is another man’s government. Also technically true. What do you think of Nuremburg? Yes, I know, I am deliberately going to an extreme, but bear with me, because the point is worth making. It was legal to commit genocide in the Weimar Republic. But it was wrong, and the court there held the SS and collaborators to a law NOT legislated as voiding a law that WAS legislated, even though the tyrannized party lost the physical conflict. How can that be? Unless of course, there is a natural law, and it really is relatively universal in its ability to govern the human conscience.
Therefore, inasmuch as conscience is the true court of last resort, I hold with Augustine, that bad law is no law at all. It has no true force. So that, if a tyranny can be shown, no decision, either of the legislature, or of the Supreme Court (or any careless words of one of its justices), can serve to make tyranny legal, or provide any meaningful legal justification for remaining under it.
However, you have yet to demonstrate there is any proto-constitutional provision that specifically enforces perpetual, involuntary union among the states. I am not aware of such. I may have missed it. Please enlighten me.