It's all based on the articles of confederation or wtv where it was a bit more free and wild, people had these kinds of rules and contracts between them. Nothing like this of course.
Basically they think an old government piece of paper that has wording they prefer outweighs the government piece of paper they don't. (The one they don't have to pay for, but still get alll the benefits).
No, you still have to agree to the ToS. They can't force you. All they can do is say that you cannot access the software or service if you don't agree to it. No one can force you to agree to a contract. That's just not how contract law works.