Requirement for Consent

same spirit, Mr. Justice DAVIS, delivering the judgment of the court in Nichols v. U.S. 7 Wall. 122, 126, said: 'Every government has an inherent right to protect itself against suits, and if, in the liberality of legislation they are permitted, it is only on such terms and conditions as are prescribed by statute. The principle is fundamental, applies to every sovereign power, and, but for the protection which it affords, the government would be unable to perform the various duties for which it was created.' See, also, U.S. v. Clarke, 8 Pet. 436, 444; Cary v. Curtis, 3 How. 236, 245, 256; U.S. v. McLemore, 4 How. 286, 289; Hill v. U.S., 9 How. 386, 389; Recside v. Walker, 11 How. 272, 290; De Groot v. U.S. 5 Wall. 419, 431; U.S. v. Eckford, 6 Wall. 484, 488; The Siren, 7 Wall. 152, 154; The Davis, 10 Wall. 15, 20; U.S. v. O'Keefe, 11 Wall. 178; Case v. Terrell, 11 Wall. 199, 201; Carr v. U.S. 98 U.S. 433 , 437; U.S. v. Thompson, 98 U.S. 486 , 489; Railroad Co. v. Tennessee, 101 U.S. 337 ;

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Railroad Co. v. Alabama, 101 U.S. 832 . [U.S. v. Lee, 106 U.S. 196 (1882)]

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A state's freedom from litigation was established as a constitutional right through the Eleventh Amendment. The inherent nature of sovereignty prevents actions against a state by its own citizens without its consent. [491 U.S. 39] In Atascadero, 473 U.S. at 242, we identified this principle as an essential element of the

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constitutional checks and balances:

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The "constitutionally mandated balance of power" between the States and the Federal Government was adopted by the Framers to ensure the protection of "our fundamental liberties." [Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 572 (Powell, J., dissenting)]. By guaranteeing the sovereign immunity of the

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States against suit in federal court, the Eleventh Amendment serves to maintain this balance.

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[Great Northern Ins. Co. v. Read, 322 U.S. 47, 51 (1944)]

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States and the federal government both have historically abused the confusion between “private law” and “public law” so 22 that they could unlawfully and unjustly assert “sovereign immunity” to protect what actually amounts to PRIVATE 23 business enterprises and PRIVATE municipal and federal corporations they have set up for their own pecuniary benefit. 24 The U.S. Supreme Court has repeatedly said that when a government engages in PRIVATE business concerns, it surrenders 25 its sovereign immunity to suit and devolves to that of a private business corporation as far as standing in court: 26

“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

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obligation.”

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[College Savings Bank v. Florida Prepaid Postsecondary Education Expense, 527 U.S. 666 (1999)] _________________________________________________________________________________________

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"What, then, is meant by the doctrine that contracts are made with reference to the taxing power resident in the State, and in subordination to it? Is it meant that when a person lends money to a State, or to a municipal division of the State having the power of taxation, there is in the contract a tacit reservation of a right in the debtor to raise contributions out of the money promised to be paid before payment? That cannot be, because if it could, the contract (in the language of Alexander Hamilton) would 'involve two contradictory things: an obligation to do, and a right not to do; an obligation to pay a certain sum, and a right to retain it in the shape of a tax. It is against the rules, both of law and of reason, to admit by implication in the construction of a contract a principle which goes in destruction of it.' The truth is, States and cities, when they borrow money and contract to repay it with interest, are not acting as sovereignties . They come down to the level of ordinary individuals. Their contracts have the same meaning as that of similar contracts between private persons. Hence, instead of there being in the undertaking of a State or city to pay, a reservation of a sovereign right to withhold payment, the contract should be regarded as an assurance that such a right will not be exercised. A promise to pay, with a reserved right to deny or change the effect of the promise, is an Is, then, property, which consists in the promise of a State, or of a municipality of a State, beyond the reach of taxation? We do not affirm that it is. A State may undoubtedly tax any of its creditors within its jurisdiction for the debt due to him, and regulate the amount of the tax by the rate of interest the debt bears, if its promise be left unchanged. A tax thus laid impairs no obligation assumed. It leaves the contract untouched. But until payment of the debt or interest has been made, as stipulated, we think no act of State sovereignty can work an exoneration from what has been promised to the [446] creditor; namely, payment to him, without a violation of the Constitution. 'The true rule of every case of property founded on contract with the government is this: It must first be reduced into possession, and then it will become subject, in common with other similar property, to the right of the government to raise contributions upon it. It may be said that the government may fulfil this absurdity ."

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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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