Requirement for Consent

against the States themselves, but held nevertheless that, by the terms of the compact and of a proviso that Congress had attached in approving it,{13} the States had waived any immunity they might otherwise have had. In reaching this conclusion, we rejected arguments, like the one made here, based on the proposition that neither [377 U.S. 196] of the States, under its own law, would have considered the language in the compact to constitute a waiver of its immunity. The question of waiver was, we held, one of federal law. It is true that this holding was based on the inclusion of the language in an interstate compact sanctioned by Congress under the Constitution. But such compacts do not present the only instance in which the question whether a State has waived its immunity is one of federal law. This must be true whenever the waiver is asserted to arise from an act done by the State within the realm of congressional regulation; for the congressional power to condition such an act upon amenability to suit would be meaningless if the State, on the basis of its own law or intention, could conclusively deny the waiver and shake off the condition. The broad principle of the Petty case is thus applicable here: where a State's consent to suit is alleged to arise from an act not wholly within its own sphere of authority, but within a sphere -- whether it be interstate compacts or interstate commerce -- subject to the constitutional power of the Federal Government, the question whether the State's act constitutes the alleged consent is one of federal law. Here, as in Petty, the States by venturing into the congressional realm "assume the conditions that Congress under the Constitution attached. " 359 U.S. at 281-282.

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

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Note in the above case that extraterritorial jurisdiction was procured by the federal government within the exterior limits of 18 a “foreign state”, which was a state of the Union, by the commission of an act by the state in the context of its private 19 business ventures, which act constituted interstate commerce. The state indicated that it did not consent to the jurisdiction 20 of the federal government, but their consent was implied by the combination of the Constitution, which is a “contract” or 21 “compact”, as well as an act falling within the Constitution for which Congress was granted exclusive authority over the 22 state by the state’s own ratification of said “compact” as a member of the Union. In that sense, the Constitution creates the 23 equivalent of an “implied contract” or “quasi contract” which can be used to regulate all activities covered by the contract 24 extraterritorially, even among parties who were unaware of the implied contract and did not explicitly or individually 25 consent. Below is a definition of “implied contract” from Black’s Law Dictionary: 26

CONTRACT. [. . .] An implied contract is one not created or evidenced by the explicit agreement of the parties, but inferred by the law, as a matter of reason and justice from their acts or conduct, the circumstances surrounding the transaction making it a reasonable, or even a necessary, assumption that a contract existed between them by tacit understanding. Miller's Appeal, 100 Pa. 568, 45 Am.Rep. 394; Landon v. Kansas City Gas Co., C.C.A.Kan., 10 F.2d. 263, 266; Caldwell v. Missouri State Life Ins. Co., 230 S.W. 566, 568, 148 Ark. 474; Cameron, to Use of Cameron, v. Eynon, 332 Pa. 529, 3 A.2d. 423, 424; American La France Fire Engine Co., to Use of American La France & Foamite Industries, v. Borough of Shenandoah, C.C.A.Pa., 115 F.2d. Implied contracts are sometimes subdivided into those "implied in fact" and those "implied in law," the former being covered by the definition just given, while the latter are obligations imposed upon a person by the law, not in pursuance of his intention and agreement, either expressed or implied, but even against his will and design, because the circumstances between the parties are such as to render it just that the me should have a right, and the other a corresponding liability, similar to those which would arise from a contract between them. This kind of obligation therefore rests on the principle that whatsoever it is certain a man ought to do that the law will suppose him to have promised to do. And hence it is said that, while the liability of a party to an express contract arises directly from the contract, it is just the reverse in the case of a contract "implied in law," the contract there being Implied or arising from the liability. Bliss v. Hoy, 70 Vt. 534, 41 A. 1026; Kellum v. Browning's Adm'r. 231 Ky. 308. 21 S.W.2d. 459, 465. But obligations of this kind are not properly contracts at all, and should not be so denominated. There can be no true contract without a mutual and concurrent intention of the parties. Such obligations are more properly described as "quasi contracts." Union Life Ins. Co. v. 886, 867.

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Glasscock, 270 Ky. 750, 110 S.W.2d. 681, 686, 114 A.L.R. 373.

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[ Black’s Law Dictionary, Fourth Edition, p. 395]

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If you want to investigate the matter of federalism further, we highly recommend the following succinct summary from our 49 Liberty University, Item #2.4: 50

Cooperative Federalism , Form #05.034 http://sedm.org/Forms/FormIndex.htm

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The Meaning of “Justice”

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A very important subject that comes up all the time in the freedom community and especially in the context of litigation is 52 the subject of “justice”. This term is widely misunderstood and quite subjective for most people. We must agree upon a 53 definition in order to know EXACTLY what we are fighting for in the context of this ministry. 54

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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