Antonin Scalia: No right to secede

The Washington Post ^ | 17 Feb 2010 | Robert Barnes

[Palter]

Is there a right to secede from the Union, or did the Civil War settle that?

Certain Tea Partiers have raised the possibility of getting out while the getting's good, setting off a round of debate on legal blogs. The more cerebral theorists at the smart legal blog The Volokh Conspiracy question whether such a right exists.

Enter a New York personal injury lawyer, and Supreme Court Justice Antonin Scalia.

The lawyer, Eric Turkewitz, says his brother Dan, a screenwriter, put just such a question to all of the Supreme Court justices in 2006 -- he was working on an idea about Maine leaving the U.S.and a big showdown at the Supreme Court -- and Scalia responded. His answer was no:

"I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.") Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

I am sure that poetic license can overcome all that -- but you do not need legal advice for that. Good luck with your screenplay."

[Idabilly]

Consent of the Governed.

States acceded to the Federal Constitution they can secede from. http://books.google.com/books?id=q_M9AAAAIAAJ&dq=albert+taylor+bledsoe+davis+a+traitor&printsec=frontcover&source=bl&ots=vWxmgmzQ0h&sig=oVKoEHBf5sVdduijWjfIa_hOFoU&hl=en&ei=PPGVSuivI-qI8QaVvoS3DA&sa=X&oi=book_result&ct=result&resnum=1#v=onepage&q=&f=false

[mad_as_he$$]

Off point. EXACTLY where does it say in the Constitution that a Sate has the right to secede?

[mad_as_he$$]

Opinion.

[Still Thinking]

To which all the NC residents say, “Sure, just as soon as you give us back all the stuff in NY, that was built partly with funds from US!”

[CodeToad]

“Unless you can point to the clause in the Constitution allowing rebellion.”

He fails to understand the Constitution limits the power of the government and not a document that tells us what we can do.

[CodeToad]

“EXACTLY where does it say in the Constitution that a Sate has the right to secede? “

Where does it say they do not?

[CodeToad]

“We don’t need to overthrow anything, we need to get the feral government train back on the tracks — whether they like it or not.
“

Yep. I’ve been saying myself that this is not a revolution but a counter-revolution. We need to get our country back.

[Lurking Libertarian]

I have wondered what our military commanders (and troops) would do if he ordered them to use force to keep them from seceding. I can’t imagine federal troops firing on their national guard brothers because Obama said so. It’s not the 1860’s any more.

The closest example would be the federal government nationalizing the state national guards to enfore desegregation orders in the 1950s and 60s. The state guardsmen followed the federal orders then.

[MrRobertPlant2009]

I think the more important issues that “settled” the matter were the passing of the 13th, 14th, and 15th Amendments. Those three sealed the fact that the states were junior to the federal government in the Constitutional scheme. The states essentially lost all control over the regulation of individuals within their boundaries and it clarified that all citizens of the states are also citizens of the United States.

And really, from a legal standpoint, that is why secession would not be allowed. If Texas decided to leave the union, Texas would - in theory - be denying its residents federally protected rights.

[JSDude1]

More likely the Feds don’t have a RIGHT to STOP me personally, nor the States collectively from Seceeding!

[Bubba Ho-Tep]

The Constitution give the government the power to suppress insurrections. What are the magic words that turn an insurrection into something that the government has no power to suppress?

Did the government have any authority to suppress slave uprisings like Nat Turner's Rebellion?

[greeneyes]

I was thinking I read somewhere that Texas did have the right of succession, but none of the other states.

[Jack Black]

Secession and Revolution are similar but not identical. So it's not by calling up John Locke's Natural Law doctrine that Secession is made a right, it is by calling up the Constitution (and perhaps Dec. of Independence) themselves.

(The latter, by the way does codify the DUTY not right, or people to overthrow tyrannical governemnts, but I'm back to revolution when I want to stay on secession).

The question of secession is much simpler: is the Constitution an irrevocable contract, regardless of what anyone does.

Scalia's answer does not satisfy. It is simply: Might Makes Right. That's not a legal answer.

The answer is to be found in a careful study of the Constitution and the documents surrounding its creation. There are several books that explore this:

One Nation, Indivisible? A Study of Secession and the Constitution (Paperback) ~ Robert, F. Hawes (Author)

There is also the historical view, ie: what was said the first time. Like this book:

Constitutional History Secession, A (Hardcover) ~ John Graham (Author), Donald Livingston (Foreword)

When in the Course of Human Events: Arguing the Case for Southern Secession (Paperback) ~ Charles Adams (Author)

There is even a "how to" guide for Vermont.

I imagine Scalia would have a better answer if it came up before the court, as it well may. This was a short sweet note to someone.

[Still Thinking]

Dred Scott, Slaughterhouse, Cruikshank, Roe, Casey, Kelo, Raich, Bean...

[Jack Black]

Can you show me one historical example where the assertion of a revolution, without (at least) the threat of force, was successful in securing the political objective?

The Velvet Revolution?

[Idabilly]

“I think the more important issues that “settled” the matter were the passing of the 13th, 14th, and 15th Amendments. Those three sealed the fact that the states were junior to the federal government in the Constitutional scheme. The states essentially lost all control over the regulation of individuals within their boundaries and it clarified that all citizens of the states are also citizens of the United States.

And really, from a legal standpoint, that is why secession would not be allowed. If Texas decided to leave the union, Texas would - in theory - be denying its residents federally protected rights.”

How so?

Since the 14th Amendment was never ratified.
http://www.sweetliberty.org/fourteenth.amend.htm

[greeneyes]

If New York and California want to secede, it would be ok with me.LOL.

[MrRobertPlant2009]

“Since the 14th Amendment was never ratified.”

And we are off to Militiaville.

I spent six months of my life getting emails from a client who wanted me to argue - in federal court - that the 14th Amendment was never ratified. I was eventually able to persuade him that such a tactic would probably do little more than make the judge want to hit him in the head with a gavel.

[Above My Pay Grade]

>>>If New York and California want to secede, it would be ok with me.LOL.<<<

Well, if that happens, I’d have to move to the new and improved USA. Would you take me, or would you bar immigration from the People’s Republic of New York? :)

[Jack Black]

Can you show me one historical example where the assertion of a revolution, without (at least) the threat of force, was successful in securing the political objective?

If we go back to the original topic the question should be: can you show me one historical example of secession where at least the threat of force was not needed to secure the objective

Singapore secession from Malaysia, 1963.

Here is a fun webpage on this topic. It shows "secession meet up groups" in a map format.