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."

[SharpRightTurn]

“We didn’t have the right to leave the British Empire either, according to King George. Yet here we are. Ponder that for a moment.”

Absolutely right.

When the existing government abuses and usurps, trending toward despotism, it’s time to break away. Or so says the U.S. declaration of independence.

I have the greatest respect for Scalia, and perhaps his was meant to be a more limited response than indicated in this report, but on its face his statement is incorrect.

[NTHockey]

The judge says we have no right to secede. OK, what happens when a state DOES secede. Does the federal government have the right to invade the state, kill the inhabitants and set up its own government?

That’s what happened in 1861. A more important question for today is, at what point, does the Constitution become a worthless document? For it does become so, the federal government has seceded from the states.

Might does not make right.

[Bidimus1]

Scalia is probably right, exept that if session is the issue then the Constitution is not the document on point.

Does his might ring a bell ?

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation

[Still Thinking]

By using Scalia's logic, another civil war where the succeeding states won - would settle the question in the affirmative - yes it is legal.

That's exactly right. If the secessionists won, history would view their acts as legal. In the Civil War, the anti-secession forces prevailed, thus settling the legal question, till the next time.

[tom paine 2]

I’d like to see him do something to prevent from happening.

[Abathar]

I found that interesting too, almost like he was looking for an excuse not to have to get into the legal side of it at all. To me honest what he thinks is moot anyway, it will never come in front of his bench until after the battles are fought and blood is spilled.

I would much rather know how my Governor and Attorney General feels than him on this subject anyway.

[Timocrat]

Interesting. This is what the Virginia delegates had to say about ratification:

“We, the Delegates of the people of Virginia Do, in the name and behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensover the same shall be perverted to their injury or oppression and that every power granted thereby remains with them and at their will.”

[Bidimus1]

Scalia is probably right, exept that if session is the issue then the Constitution is not the document on point.

Does his might ring a bell ?

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation

[gathersnomoss]

Will McDonnell veto the senate bill denying Virginia’s right to drill for oil?

Come on Bob!

[stainlessbanner]

Examples of US Secession

• 1798-99 Virginia and Kentucky Resolves. Said states could nullify national law if they violated individual state rights!
• 1804, Massachusetts plotted to secede and tried to get New York to withdraw from the union and establish a "Northern Confederacy".
• 1807 Embargo Act New Jersey was going to secede due prohibition of foreign trade
• In 1814, delegates from several New England states threatened to secede over President James Madison's war policies against England.
• In 1844, the Massachusetts Legislature threatened secession when Congress started debating whether to admit Texas into the Union.

Here are some other interesting points of discussion

1. Abraham Lincoln endorsed secession: "Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable -- a most sacred right -- a right, which we hope and believe, is to liberate the world." (1848)
   
2. The Declaration of Independence clearly states that governments are institutions that can be defined as “deriving their power from the consent of the governed.”
   
3. Jefferson, author of the Declaration of Independence also stated: Whenever "any Form of Government becomes destructive" of the inalienable rights granted by the Creator, "it is the Right of the People to alter or abolish it, and to institute new Government."
   
4. Alexander Stephens in his "A Constitutional View of the Late War Between the States," submitted, the central government, the common agent of the people of the states, is legitimate only so long as it exercises its delegated powers within the bounds established by the people through the Constitution.

[Bubba Ho-Tep]

The document of a winning side. Had the British won the war, it would have been seen as something akin to the Unabomber manifesto and probably would have been exhibit #1 at the treason trial of the Founding Fathers. "Is this your signature, John Hancock?"

I also firmly believe that if the south had won the Civil War, they'd have been celebrating their gloriously successful revolution and the brave boys who fought for independence and not continuing to gripe about how the US had no right to oppose them.

[veritas2002]

Except, Mr. Justice, if the States ratified a Constitutional Amendment that allowed secession! What idiots.

[Bubba Ho-Tep]

Jefferson, author of the Declaration of Independence also stated: Whenever "any Form of Government becomes destructive" of the inalienable rights granted by the Creator, "it is the Right of the People to alter or abolish it, and to institute new Government."

And yet the Constitution gives the government the power to suppress insurrections. If I'm leading an insurrection, what are the magic words that make it illegal for the government to oppose me?

[Still Thinking]

Abraham Lincoln endorsed secession: "Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable -- a most sacred right -- a right, which we hope and believe, is to liberate the world." (1848)

Geez, he talks the talk, but the walk, not so much, eh?

[kbennkc]

Asking if it is legal to secede is like a slave asking permission to run away .

[Still Thinking]

If I'm leading an insurrection, what are the magic words that make it illegal for the government to oppose me?

Might there be a difference between an insurrection of individuals and a decision by a state, one of the parties to the original agreement that bound them together, to withdraw? When nations make treaties with one another, if the other party fails to live up to their responsibilities, or if the one nation simply feels the agreement is no longer in their best interests, they can repudiate it, after giving notice to the other parties. Why would this be any different from that?

[longtermmemmory]

Scalia is legally and morally correct.

The CSA is an example of a “failed state”. The civil war decided the issue. The confederates failed to establish a seperate nation. The USA is firmly correct in opposing secessionists.

This is no different than tax nulification nosense that is passed in state legislatures.

[campaignPete R-CT]

"no state has a right to secede in opposition to the wishes of the Union ..." When the lefties try to secede (New York), they will be crushed.

[McGavin999]

The simple fact is, at a time like that the legal niceites would not matter. If the states decided to leave the union, and the military decided it wouldn't or couldn't fight their mothers and fathers and left the military, who could stop any of it?

If employers refused to withhold taxes from employees and employees refused to file voluntary taxes who would pay the military anyway?

[CharlesWayneCT]

The 10th amendment has no “opt-out” provisions.

The constitution explicitly provides for new states, including rules for joining states, or for splitting states.

The constitution says NOTHING about a right for a state to leave, or the rules under which a state could leave.

If they wanted to allow a state to leave, they could have easily included a clause describing how a state could leave.

It doesn’t seem that even a vote by congress and a vote by the state would be sufficient to allow a state to leave. It seems you would need a constitutional amendment, either explicitly removing the state, or defining the method by which states could leave.

All the states are interconnected. You can’t just let a state leave — that state has had federal protection for years, meaning all of our tax dollars have been dedicated to the aid of that state, and also a lot of tax dollars have gone into things built in the state, and to people of hte state, based on our shared union.

So it makes sense that you would need all of the states together to allow a state to leave, which a constitutional amendment process would provide.

I wouldn’t want a state to be allowed to leave on their own vote, nor would i want the feds to be allowed to kick out a state on a majority vote. We are all in this together.