Requirement for Consent

hold the power and conduct the government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty. ..."

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[Boyd v. State of Nebraska, 143 U.S. 135 (1892)]

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4. When these “foreign states” and “foreign sovereigns” wish to cooperate in achieving a common goal, they may 4 voluntarily band together and under the principles of “comity”, may enact laws prescribing and recognizing these 5 international agreements: 6

“ comity. Courtesy; complaisance; respect; a willingness to grant a privilege, not as a matter of right, but out of deference and good will. Recognition that one sovereignty allows within its territory to the legislative, executive, or judicial act of another sovereignty, having due regard to rights of its own citizens. Nowell v. Nowell, Tex.Civ.App., 408 S.W.2d. 550, 553. In general, principle of "comity" is that courts of one state or jurisdiction will give effect to laws and judicial decisions of another state or jurisdiction, not as a matter of obligation, but out of deference and mutual respect. Brown v. Babbitt Ford, Inc., 117 Ariz. 192, 571 P.2d. 689,

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695. See also Full faith and credit clause. ” [ Black’s Law Dictionary, Sixth Edition, p. 267]

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5. Federalism simply describes the principle whereby: 15 5.1. No one of these co-equal sovereign and foreign states may exercise legislative jurisdiction within the borders of a 16 fellow foreign state. 17 5.2. When jurisdiction is asserted within one of these states by the federal government, then explicit proof of consent 18 must be produced in some form in order for the courts to enforce the legal rights or activities that it is regulating 19 or administering. This is consistent with item 28 U.S.C. §1605(b)(1) within the Foreign Sovereign Immunities 20 Act (F.S.I.A.), which says that states may surrender their sovereign immunity by their consent. 21 5.3. The consent required to be demonstrated under the principles of federalism can be either explicit (in writing or by 22 legislative enactment) or implicit (by their conduct). For example, when a foreign state of the Union engages in 23 interstate commerce , it is “presumed” pursuant to Article 1, Section 8, Clause 3 of the constitution to have 24 “consented” to the jurisdiction of the federal government to regulate said commerce and to obey all enactments of 25 Congress which might lawfully regulate said commerce. Here is how the U.S. Supreme Court described this 26 concept: 27

“Recognition of the congressional power to render a State suable under the FELA does not mean that the immunity doctrine, as embodied in the Eleventh Amendment with respect to citizens of other States and as extended to the State's own citizens by the Hans case, is here being overridden. It remains the law that a State may not be sued by an individual without its consent. Our conclusion is simply that Alabama, when it began operation of an interstate railroad approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by that Act. By adopting and ratifying the Commerce Clause, the States empowered Congress to create such a right of action against interstate railroads; by enacting the FELA in the exercise of this power, Congress conditioned the right to operate a railroad in interstate commerce upon amenability to suit in federal court as provided by the Act; by thereafter operating a railroad in interstate commerce, Alabama must be taken to have accepted that condition and thus to have consented to suit.”

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[Parden v. Terminal R. Co., 377 U.S. 184 (1964)]

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9.11.3

Waivers of sovereign immunity

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Only either by one of the following mechanisms can the sovereign immunity of the state explicitly or implicitly waived, 40 respectively: 41

1. By the express consent of the sovereign in statutory form or 42 2. By the state electing to engage in “private business concerns” in a foreign jurisdiction and thereby waiving sovereign 43 immunity under the Foreign Sovereign Immunities Act (F.S.I.A.), 28 U.S.C. Chapter 97. The courts call this by any of 44 the following names, all of which are a method of legally reaching out of state parties who are nonresident in relation 45 to the forum.: 46 2.1. Minimum Contacts Doctrine. See: International Shoe Co. v. Washington, 326 U.S. 310 (1945). 47 2.2. Longarm Jurisdiction. 48 2.3. “Purposeful availment”. 49

Below is a case highlighting the above principles:

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When a State engages in ordinary commercial ventures, it acts like a private person, outside the area of its "core" responsibilities, and in a way unlikely to prove essential to the fulfillment of a basic governmental obligation. A Congress that decides to regulate those state commercial activities rather than to exempt the

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Requirement for Consent

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Copyright Sovereignty Education and Defense Ministry, http://sedm.org Form 05.003, Rev. 7-23-2013

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