Posted on 02/17/2010 9:28:36 AM PST by Para-Ord.45
You've got to love that Antonin Scalia answered a letter from a screenwriter asking for tips on a screenplay involving Maine seceding from the union:
"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."
“The question is, if one of the states today announced that it was amicably leaving the union (let’s say Texas or Vermont), would a tyrannical central government wage a scorched earth war on it rather than letting it go its own way?”
“yep.”
I’m afraid you’re right. Which would bring us back to what our founding fathers, or any group of people who wanted independence, faced.
I rarely disagree with Scalia, and when I do, I check my thinking again, but this time he's wrong. If any issue was resolved by the Civil War, it is that the "right to secede" is determined on the battlefield and not in the courts. Military victory or defeat is the only way to answer the question of whether one or more states may secede. BTW, Texans, if you go for it, I'm moving to Texas!
I would say that most states joined by mutual consent. If either side wants to dissolve that bond, whether the other 49 states kick Massachusetts out, or Texas secedes, so long as mutual consent has dissolved, either party to the union should have the right to dissolve that bond (no fault secession - just like no fault divorce?).
Are not those 37 still governed by the same document that the original 13 (actually it was only nine until the others eventually came on board) acceded to? Do they not have the same rights as those free and independent states which created this union?
I sure as heck think the answer to both is YES!
I agree and disagree. First, you're right that it's better to fix the mess that our federal government has become - if possible. Second, secession is probably an option without a civil war. As much as Obama loves holding power over the little people, he is a sissy who would not actually fight against a strong state like Texas. He would let them go, without a war. Civil war is a question of the choices made by leaders on both sides, not an inevitability with secession.
So the ONLY arbiters of what the Constitution says are 9 folks who happen to sit as judges on the USSC at any given time?
I doubt seriously that you would find much support for that idea among those who actually participated in founding this country!
Scalia isn't citing the pledge, he's saying that the pledge reflects an issue that had already been decided by the Civil War. Keyword- "Hence"
If that is true then why don't states join the Union by ratifying the Constitution and sending representatives to Washington? Why all the Article IV nonsense? The fact of the matter is that all 50 states agree to abide by the Constituiton, regardless of whether they were admitted or whether they ratified.
Do they not have the same rights as those free and independent states which created this union?
They enjoy the same rights as the original 13. And the original 13 have the same restrictions and prohibitions as the 37 that followed.
Indeed and if it had been true we would still, to this very day, be living under those articles wouldn't we?
But mutual consent has to be involved. Texas cannot just walk out without discussion and say, "I've left."
In the case of individual contracts, a dispute of obligations is usually taken before a judge, who will determine whether the disputed provision is unconscionable. To be unconscionable, a provision must be “Unusually harsh and shocking to the conscience; that which is so grossly unfair” a judge will strike it out of the contract, as if it were never there.
Note that the concept pivots on conscience and an uncodified sense of unfairness. Though typically, case law provides some guidance, because, as you imply, not all consciences produce the same results.
So then, what is this appeal to conscience, if not a subterfuge for natural law? If so, then we do have a basis within our own law for rejecting as unlawful the imposition of a tyrannical relationship between individuals, and, by extension, larger associations.
Now, if you get a judge that thinks its OK to force you to continue attending the local country club, and puts a positive injunction in place to force you to attend once a week, what should you do? If you decided to ignore the injunction, further sanctions could be invoked, fines, incarceration, or worse, making you play golf at gunpoint!
My question to you is, at what point in the above, admittedly fantastic scenario, would you say, enough is enough, you cannot force me to do this? Because the answer to that question is precisely the point at which you must do what is technically illegal in order to do what is right.
And since the law abhors to undercut its own moral authority, it is at that very point at which most judges would likely find a contract provision, such as our unquitable country club, unconscionable.
Now, you state that one man’s tyranny is another man’s government. Also technically true. What do you think of Nuremburg? Yes, I know, I am deliberately going to an extreme, but bear with me, because the point is worth making. It was legal to commit genocide in the Weimar Republic. But it was wrong, and the court there held the SS and collaborators to a law NOT legislated as voiding a law that WAS legislated, even though the tyrannized party lost the physical conflict. How can that be? Unless of course, there is a natural law, and it really is relatively universal in its ability to govern the human conscience.
Therefore, inasmuch as conscience is the true court of last resort, I hold with Augustine, that bad law is no law at all. It has no true force. So that, if a tyranny can be shown, no decision, either of the legislature, or of the Supreme Court (or any careless words of one of its justices), can serve to make tyranny legal, or provide any meaningful legal justification for remaining under it.
However, you have yet to demonstrate there is any proto-constitutional provision that specifically enforces perpetual, involuntary union among the states. I am not aware of such. I may have missed it. Please enlighten me.
The fact of the matter is that all 50 states agree to abide by the Constitution, and rightly expect that the federal government will do the same, regardless of whether they were admitted or whether they ratified.
There! Fixed it for you!
The part I added is the part which has decidedly NOT been happening and particularly so since about 1860!
No, the Supreme Court ruled in 1869 that the Union governed by the Articles was the same as the Union governed by the Constitution.
Even a brief reading of the Declaration of Independence wouldn't support this statement.
When in the Course of human events it becomes NECESSARY for one people to dissolve the political bands . . . . a decent respect to the opinions of mankind REQUIRES that they should declare the causes. . . .
That to SECURE these rights, Governments are instituted among Men, deriving their JUST powers . . .
whenever any Form of Government becomes destructive of THESE ends (not any ends, e.g. when slave are not returned to their owners)
Governments long established should NOT be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed
Considering that the concept of judicial review was handed down by the Court in the 1803 Marbury v Madison decision, and that the Chief Justice Marshall was the author of the decision, I doubt that you are correct.
No, you threw in an irrelevance.
The part I added is the part which has decidedly NOT been happening and particularly so since about 1860!
Because you say so? Well, thanks for clearing that up for us.
I am very well aware of what that fallacious ruling says!
It is right up there with Roe vs Wade on the hit parade as both were made up out of whole cloth by activist judges who didn’t give one hoot in hell about what the Constitution said or did not say on the matter!
While YOU consider it an irrelevance I and millions of others surely do not!
So you would agree that it is not the right of one side of the issue alone to declare the circumstances intolerable and the agreement null and void? At the very least it would take the word of both parties or that of a third party empowered to decide the issue? Which goes back to my belief that secession cannot be done unilaterally, not legally.
My question to you is, at what point in the above, admittedly fantastic scenario, would you say, enough is enough, you cannot force me to do this? Because the answer to that question is precisely the point at which you must do what is technically illegal in order to do what is right.
It is an invalid analogy. The Constitution is not a counry club. It is an agreement binding on all members. It protects the rights of all members, imposes the same limits and ensures the same powers to all. And under those circumstances how can a single party make a decision and take actions that impacts the interest of the other parties without those parties having a say in the matter? Clearly it cannot. To do so makes some parties more equal than others, and says that the Constitution protects some states more than other states.
With protections come obligations. If it is clear that a state or states want out of the Union then it is incumbant upon the other members to agree. All parties are bound to negotiate in good faith and to reach a fair and equitable settlement on issues of disagreement, and once reached the states should be left to go in peace.
Any other decision outside of this is outside of the Constitution. I won't argue justified or unjustified, but rebellion is a inherent right for all people. If that is the path a state chooses then so be it, it is their decision. But don't pretend its legal, and the state should expect to be opposed.
Of course you don't.
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