Scalia: "There Is No Right to Secede"


The right of a state to secede from the nation is way outside my personal injury wheelhouse. But it has become a source of conversation on professorial and political blogs, and the concept has generated interest from the Tea Party movement.

As it happens, my brother has a letter from Justice Antonin Scalia that is directly on point as to the legitimacy of secession. How he got that letter, and its contents, are the subject of today’s post.

The inspiration for writing, and the release of the letter, comes from Prof. Eugene Volokh, who wrote, “I keep hearing the claim that the legitimacy of secession from the U.S. was ‘settled at Appomattox,’ and I wanted to say a few words about why I think that makes little sense.”

The good prof goes on to write that, while clearly not supporting secession of any State in concept, that the issue is far from settled. He writes:

If in 2065 Alaska, California, Hawaii, or Texas (just to consider some examples) assert a right to secede, the argument that “in 1865, the victorious Union government concluded that no state has a right to secede in opposition to the wishes of the Union, so therefore you lack such a right” will have precisely the weight that the Americans of 2065 will choose to give it — which should be very little. 

Thus far, that post has generated 152 comments.

Well prof, Justice Scalia disagrees with you. Explicitly. Why did he do so in a letter to my brother? Glad you asked.

Dan is a screenwriter (whose screenplay Tranquility Base was just named a finalist at the Vail Film Festival, and previously took top honors elsewhere). Back in 2006 he started working on a political farce that had Maine seceding from the United States and joining Canada.

Bro was well ahead of the tea partiers in contemplating impending problems as we racked up massive debt. This doesn’t get him an agent or a foot in the door of Hollywood to get his screenplays made into films — it isn’t what you write, but who you know — but it does make him a prophet of sorts.

So, on a lark, he wrote to each of the 10 Supreme Court justices (including O’Connor) with this request:

I’m a screenwriter in New York City, and am writing to see if you might be willing to assist me in a project that involves a unique constitutional issue. 

My latest screenplay is a comedy about Maine seceding from the United States and joining Canada. There are parts of the story that deal with the legality of such an event and, of course, a big showdown in the Supreme Court is part of the story.

At the moment my story is a 12 page treatment. As an architect turned screenwriter, it is fair to say that I come up a bit short in the art of Supreme Court advocacy. If you could spare a few moments on a serious subject that is treated in a comedic way, I would greatly appreciate your thoughts. I’m sure you’ll find the story very entertaining.

I told Dan he was nuts. I told him his letter would be placed in the circular file. And then Scalia wrote back. Personally. Explicitly rejecting the right to secede:

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.

So there you have it. At least one vote solidly on record as saying that there is no right to secede. And it likely comes from a place the right wing secessionists most wanted to have a vote.

And yes, Dan still needs an agent. Because writing great scripts isn’t enough if you don’t know The Powers That Be on the other coast. And, for what it’s worth, his now-completed script of Maine joining Canada is better than his award-winning one about a mis-adventure in space.

(Update:Welcome new readers…there seems to be a fair share of incoming to this little joint)

Update #2 -

Update #3: In November 2013, in the wake of the Obama-Romey election, this posting returned to the news.

Elsewhere on the issue of secession:

  • Secession in the Air (Patrick Buchanan)

    No, it is not 1860 again. 

    But with all the talk of the 10th Amendment, nullification and interposition, states rights and secession — following Gov. Rick Perry’s misstatement that Texas, on entering the Union in 1845, reserved in its constitution a right to secede — one might think so.

Nearly one-third of Georgia Republicans would be in favor of leaving the United States, its polling shows. Pause here for any ironic thoughts about the party of Abraham Lincoln that suddenly spring to mind.

  • Glenn Beck: Secession or Suicide (Jason Linkins @ Huffington Post)

    But you can’t convince me that the founding fathers wouldn’t allow you to secede. The Constitution is not a suicide pact. And if a state says, I don’t want to go there, because that’s suicide, they have a right to back out. They have a right. 

  • Texas v. White a Roadblock To Secession; But It Might Also Provide an Escape Route (Brian Stanley @ Lew Rockwell)

    In the 1868 case of Texas v. White, 74 U.S. (7 Wall.) 700, a case dealing with the title to some U.S. bonds, the Supreme Court ruled that Texas’, and hence the South’s, attempted secession in 1861 was unconstitutional. But the opinion also contained some wording that might give secessionists a way around White. 

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82 Responses Leave a comment

  • peter 2010.2.16 at 17:47 | Quote

    I'm all for establishing a "secession zone," where Teabaggers, religious fundamentalists, and nut cases of all sorts can come together and leave the Union. Texas would be an ideal location- it's big and roomy, and already has a political culture that is predisposed to batshit crazy conservatism. Let them go, we will be a better nation for it.

  • Anonymous 2010.2.16 at 19:16 | Quote

    Hence, in the Pledge of Allegiance, "one Nation, indivisible."

    That's funny, he doesn't know the new "under god" version of the pledge.

  • Andrew Oh-Willeke 2010.2.16 at 19:33 | Quote

    Delightful!

    I had cited both the Civil War and the Pledge of Allegiance in a comment at the Conspiracy and I am pleased to see the Justice Scalia agrees (I am myself more frequently in agreement with the left side of the bench).

    Perhaps this is because secession is a regional, rather than a partisan issue in the United States, and Justice Scalia is a Yankee. His procedural point is also well taken.

  • Anonymous 2010.2.16 at 21:41 | Quote

    If you believe in the confines and dictates of the U. S. Constitution, then you are already a descendant of a Tea Party.

  • Anonymous 2010.2.16 at 23:50 | Quote

    I'm having trouble understanding how anyone can seriously claim to be both a "patriot" and a secessionist.

  • Anonymous 2010.2.17 at 00:16 | Quote

    A master never respect the right of a slave to leave.

  • Anonymous 2010.2.17 at 00:23 | Quote

    You misread Scalia's letter.

    Nowhere does he say "there is no right to secede." Rather, he says he cannot imagine a situation where the issue would be, or for that matter could be, resolved by SCOTUS.

  • Anonymous 2010.2.17 at 03:21 | Quote

    Scalia is talking about Texas v White. That case stated that Texas never seceded. But it's far from Airtight.

    Texas v White was in 1869, and was not about Secession itself, but a bond issue. The plaintiffs tried to have it both ways: That the bonds issued by Confederate legislatures were legit today, but that the current Federal military government had no reason to pay them. The case stated out of thin air that Texas was a part of the union from 1861-1865 and so the bonds were legit, but denied that the Federal goverment in Texas had any obligation to pay them. (The dissenting opinion is humorous.)

    The court continues that the Republic is indivisible. 'without revolution or consent of the states.' Now what does 'consent of the states' mean, no one has defined, but it exists in the case.

    As far as arguments in favor of secession, either the States did or did not.

    IF THEY DID, then all of the Fed's actions were Constitutional (because the Confederates were not part of the USA, they had no constitutional rights).

    IF THEY DID NOT, then please explain.
    - The existence of West Virginia (which violates Article IV, Clause 3)
    - How the Senate was able to vote and declare war without a quorum of members
    - How union troops being quartered in old ladies' homes (non combatants) was not a violation of the 3rd Amendment. If they are US citizens, they have US rights. How much is the reparation check?
    - Sames as above for Amendments 4, 5, 6, 7, and 8.

    It would've been legally simpler to just say the South was its own country for a while that was eventually reconquered, occupied, and admitted into the Union. That definately matches the practical real world events.

    Secession has more of a legal ground than I think Scalia is giving it. Texas v White can be overturned, and there's a clause even within the case itself that leaves the door for future secession open.

  • Lieutenant Ambiguous 2010.2.17 at 06:31 | Quote

    To the anonymous fellow who mistakes patriotism for subservience, there is plenty of room for both secessionist sentiments and patriotism, and I have to wonder if he considers Benjamin Franklin, Thomas Jefferson, James Madison, and all the rest to be traitors, because by his definition, they cannot be considered patriots.

    No, a patriot is not a partisan adherent of a particular political arrangement. We call those people nationalists. A patriot puts his love of country over any love of nation or political system. A patriot is loyal to his people, his traditions, his history, and the soil for which he bleeds, not seats of office, or titles, or officialdom. That is the opposite of the true patriot. A patriot may stand up and defend the latter only when it serves the former.

    Secondly, this argument that a previously claimed right can be abrogation by the act of shedding blood has always puzzled me. How many other rights are we willing to let go if enough claimants of that right are murdered? If we kill enough newspaper editors, would that abolish freedom of the press? Would a mass execution, an Appomattox, if you will, of protesters be enough to eliminate freedom of speech?

    If enough abortion doctors are slain, would that be sufficient to overturn Roe v Wade?

    I hope others can see what a cockamamie rationale that is.

    The only way to determine the answer to the question is to determine which furthers the interest of liberty. China does not believe in political self-determination, particularly when it comes to Tibet, Taiwan, Xinjiang, and various other places it has subjugated by force. The founders did. That is all the answer I need.

  • Dan Collins 2010.2.17 at 07:15 | Quote

    As a Vermonter, I find it interesting that the fringy push for a Second Vermont Republic hardly ever gets noticed in the national press, whereas right-wing fringers in Georgia or Texas summon the spectre of secessionism. The Aztlan wing of La Raza pushes its own version of this rhetoric of historical grievance, but seldom emerges in the press as an ominous sign of societal polarization. So: what ought the statute of limitations on historically grievous colonization be?

  • Anonymous 2010.2.17 at 07:38 | Quote

    Of course, the standing issue is really the interesting thing here, partially because it is the one question that might actually be susceptible to an answer: who would have standing to bring a suit forcing a state to stay in the Union, and what would be the nature of the dispute?

    Perhaps a Medicaid beneficiary or a participant in some other joint federal-state program granting vested rights?

  • JCtx 2010.2.17 at 07:58 | Quote

    To those who think secession is valid I have one thing to say: America, love it or leave it (by providing your support for secession, I think we all know which choice you would make).

  • Matthew 2010.2.17 at 08:31 | Quote

    Interesting discussion, but I haven't seen anyone address his most basic point which is that a State would lack standing to bring such a suit. It seems quite clear to me that that particular hill cannot be climbed.

    The second issue here is that if some state did succeed it is hard to imagine a repeat of the Civil War where most of the succeeding state's military officers came from among federal forces. At this far remove, our identities are national rather than tied to a state.

    The only question here is whether as a political matter the nation would permit it. I think the answer is clearly no.

  • Anonymous 2010.2.17 at 09:05 | Quote

    Eric,

    Don't you want to block your brother's home address? Maybe insert his website instead for any traffic or interest that may come his way

  • Ryan 2010.2.17 at 09:15 | Quote

    Awesome…thanks for sharing. As a native Mainah, I'm all for secession. Please tell your brother to have actors get the accent right.

    Scalia's position is contingent on the Civil War resolving any Constitutional issues, though. If it is found not to have resolved Constitutional issues (i.e. the 14th Amendment was necessary to cover the Civil Rights Act, etc.) then all bets are off.

  • Anonymous 2010.2.17 at 09:18 | Quote

    As much as I respect the Justice, it simply defies logic that sovereign states can delegate powers to a central federal agent which then, somehow, becomes superior to them.

    The business analogy would be for 13 investors to form a company and hire a CEO who promptly decrees none of the 13 can stop investing, and that none of the Directors can be allowed to leave the Board of Directors.

    Contrary to popular belief, this logic was NOT "settled" by the Civil War. Logic is never settled by power. Indeed when power suppresses logic, it remains unsatisfied until some future date. In the meantime, the tension between truth and power takes its toll on the relationship between the citizen and those who pretend to serve them.

    Government thus grows into a self-serving, self-protecting Leviathan that becomes a parasite upon the productive citizen. This hardly ever ends peacefully.

  • Anonymous 2010.2.17 at 09:37 | Quote

    ONCE A STATE LEAVES THE UNION, the Supreme Court is no longer the highest court of the land — so who cares what they think?

  • Anonymous 2010.2.17 at 09:45 | Quote

    A state has a right to secede. Just like 13 colonies have the right to secede. Just like a wife has the right to leave her husband. Even, if the husband beats his wife into submission, and gets nine old men to say, "he beat you into submission, so you have no right to leave again". Long ago the SCOTUS abandoned the Constitution and the natural rights of individuals, and is practically irrelevant.

  • jon 2010.2.17 at 10:13 | Quote

    interesting choice your brother made. after all, there would be no "maine" without secession.

    the geographical boundaries of maine were simply a massachusetts enclave until march of 1820, when it seceded from massachusetts under the missouri compromise and became the 23rd state.

    it's too bad scalia doesn't know anything but how to worship the government that pays him. of course, that doesn't mean everyone else has an excuse for being equally ignorant or dishonest.

  • Jason 2010.2.17 at 11:10 | Quote

    Very interesting.

    Recently there has been a growing movement by citizens of the District of Columbia to "secede" from the union as a result of the continued denial of the right to vote.

    In the District's case there is clear precedent — the American secession from England. Even the rallying cry would be the same: "No Taxation Without Representation!"

  • TJ 2010.2.17 at 12:00 | Quote

    The Pledge of Allegiance to the United States is an oath of loyalty to the republic of the United States of America, originally composed by Francis Bellamy in 1892. The Pledge has been modified four times since then, with the most recent change adding the words "under God" in 1954. Francis Bellamy (1855-1931), was a Baptist minister, a Christian socialist, and the cousin of socialist utopian novelist Edward Bellamy (1850-1898).

    Swearing of the pledge is accompanied by a salute. An early version of the salute, adopted in 1892, was known as the Bellamy salute. It ended with the arm outstretched and the palm upwards. It eventually evolved to palm downward. Because of the similarity between the Bellamy salute and the Nazi salute, President Franklin D. Roosevelt instituted the hand-over-the-heart gesture as the salute to be rendered by civilians during the Pledge of Allegiance and the national anthem in the United States, instead of the Bellamy salute. Removal of the Bellamy salute occurred on December 22, 1942, when Congress amended the Flag Code language first passed into law on June 22, 1942.

    Nice to know isn't it. We've all seen where Nationalist Social Statism leads. I'd rather toil with the troubles of freedom than toil with the chains of a despotic government. Peaceful Secessions will solve the problems with the Federal Government and if the Federal governments seeks to enact violence on those wishing to voluntarily leave the union it will show its illegitimacy of existence to the world for the second time. If you want to voluntarily stay and worship the Religion of National Statism than you should be able to do so, others should not be forced with the threat of violence or even a concrete cage simply because you find it offensive that someone would rather be free than be a slave to tyrants.

  • Anonymous 2010.2.17 at 12:17 | Quote

    The Pledge of Allegiance is a legal document???

  • Anonymous 2010.2.17 at 12:19 | Quote

    Anonymous says: "As much as I respect the Justice, it simply defies logic that sovereign states can delegate powers to a central federal agent which then, somehow, becomes superior to them."

    Except the federal government was not formed by the states, is not their "agent" and does not derive any authority from any "delegation" of powers by the States. The federal government derives its powers directly from the people of the United States (not the states), which is why the preamble of the Constitution begins "We the People." The original constitution was not even ratified by the original States as legal entities (their legislatures didn't adopt any bills approving it, their governors didn't sign any bills approving it). Instead, it was ratified by state conventions – delegates elected directly by the people of each state.

    Put another way, the federal Consitution was created by going "over the heads" of the States, directly to the people. As stated in the Declaration of Independence, any governments (state or federal) derive "their just powers from the consent of the governed."

  • Anonymous 2010.2.17 at 12:36 | Quote

    I think Ron Paul made a good point on this issue. With all this talk of "Secession" the States would be more likely to get away with nullification, than secession. We are the "United States of America" & thus for should stay united accordingly. However, in the instance of a complete tyranny in the Federal Government, I think it's pretty clearly stated in the 9th & 10th amendments of the Constitution that we have every right on earth to nullify the federal government when it becomes tyrannical! Of course the Feds will not agree with this, but when the truth is concerned, what part does "Opinion" play anyway? When "We The People" decide it's time to shrink the Federal establishment, well then the peoples will will be done!!!

  • Anonymous 2010.2.17 at 12:58 | Quote

    Divided we Fall! We should all stick together as a union and use our power to throw off shuch government and start over as a Union. Nullification is a good step toward that goal.

  • TJ 2010.2.17 at 13:06 | Quote

    "If any state in the Union will declare that it prefers separation…
    to a continuance in union… I have no hesitation in saying,
    'let us separate.' " – Thomas Jefferson

    Read the following pieces of American History, to explain why Nullification and Interposition are less radical means of providing a check on the Federal government than Seceding.

    The Declaration of Independence (the United States was founded on the right of secession)

    Kentucky Resolution of 1798
    written by Thomas Jefferson

    Virginia Resolution of 1798
    written by James Madison, a Federalist

    Kentucky Resolution of 1799
    State Legislature wrote this one

    All the New England states rejected the resolutions. However, the state governments of Massachusetts, Connecticut, and Rhode Island threatened to ignore the Embargo Act of 1807 based on the authority of states to stand up to laws deemed by those states to be unconstitutional. Rhode Island justified its position on the embargo act based on the explicit language of interposition. Within five years, Massachusetts and Connecticut asserted their right to test constitutionality when instructed to send their militias to defend the coast during the War of 1812. Connecticut and Massachusetts questioned another embargo passed in 1813. The supreme courts of both states objected, including this statement from the Massachusetts General Court:

    “ A power to regulate commerce is abused, when employed to destroy it; and a manifest and voluntary abuse of power sanctions the right of resistance, as much as a direct and palpable usurpation. The sovereignty reserved to the states, was reserved to protect the citizens from acts of violence by the United States, as well as for purposes of domestic regulation. We spurn the idea that the free, sovereign and independent State of Massachusetts is reduced to a mere municipal corporation, without power to protect its people, and to defend them from oppression, from whatever quarter it comes. Whenever the national compact is violated, and the citizens of this State are oppressed by cruel and unauthorized laws, this Legislature is bound to interpose its power, and wrest from the oppressor its victim."

    It is very important to note that many states use these principles today to protect their citizenry from the Federal Government on the Medical Marijuana issue and many others. You will see slander all throughout the Progressive media in attempt to keep these principles from becoming popular in American culture, they threaten their establishment, the status quo and their power. What you are seeing is the struggle of a drowning victim, grabbing and pulling at any piece of power and propaganda that they can.

  • goodmangreen 2010.2.17 at 13:32 | Quote

    Seems typical that a FEDERAL judge might feel that way about a STATE'S right to secede. Ask a state judge.

    If at first you don't secede, try, try again.

  • Richard 2010.2.17 at 13:46 | Quote

    Submit the letter to Letters of Note!

  • Andy White 2010.2.17 at 14:44 | Quote

    America isn't defined by the politicians that lord over it's people. The government is nothing more than a criminal gang that uses violence and the threat of violence to achieve it's goals. To suggest that America and it's criminal government are one in the same is truly the height of ignorance. The mob is well known to operate in New Jersey among other places. If one does not like the mob does that mean they hate New Jersey and have to leave? That's the same logic as saying 'if you don't like the US government you don't like America so get out.'

  • Jared 2010.2.17 at 16:06 | Quote

    The Federal Government was created by the states. The state Governments created by the individual people coming together. If the citizens of a certain state, by a majority vote, vote to secede from the the Union,because they are dissatisfied with it or want to create one that is, in their minds, better for them then that is their choice and their right to do so. But in so doing, they remove the blessings which are to be gained by being in a union.

  • Jared 2010.2.17 at 16:14 | Quote

    Please disregard my earlier comment. The people are correct in that the Federal government was created by THE PEOPLe and not the states. If the people therefore have the right to create a government, they may certainly AND PEACEFULLY remove themselves from it and create a new one. BUT IT MUST NOT VIOLATE THE RIGHTS OF OTHERS : PROTECTION OF LIFE, RIGHT TO CONTROL AND OWN YOUR PROPERTY AND TO PROTECT YOUR RIGHT TO CHOOSE (FREEDOM OF CONSCIENCE) HOWEVER THIS DOES NOT MEAN THAT THE PERSON CAN DO WHATEVER HE OR SHE PLEASES READ JOHN LOCKE ON THAT

  • Anonymous 2010.2.17 at 16:38 | Quote

    pledge post dates war between states circa 1898
    coporations are people
    eminent domain
    shesh! so much for calling balls and strikes. ump needs glasses

  • Sister Sarah 2010.2.17 at 19:02 | Quote

    Millions of Texans don't want these secessionist nutballs any more than you do, so please don't stereotype.

    In any case, who cares whether there is a legal right to secede? It's a stupid idea advanced by cowards and quitters.

    Anyone who really loved their country would want to fit its problems, not run from them.

  • Anonymous 2010.2.17 at 19:02 | Quote

    I think Scalia was wrong. I wasn't law that prevented the southern states from seceding, it was shear force of arms.

  • Anonymous 2010.2.17 at 20:43 | Quote

    "If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede."

    LOL. So much for America's fine, legal minds.

    A question for ordinary Americans. Which of the following statements do YOU agree with?

    1) "If there was any constitutional issue resolved by the murder of Nicole Brown, it is that there is no right to divorce."

    or,

    2) "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 … "

  • Anonymous 2010.2.17 at 21:40 | Quote

    try reading the declaration of independence, the constitution, and the founders intent for the creation, existence and future for this country…its PURPOSE.

    most importantly, the reason for its creation and why it was made in such a manner…
    (for this country is FAR FROM IT)

    secession is clearly legal, a morally right and acceptable choice, and if a people/state deem it necessary or even if they choose to secede it is their choice and their UNALIENABLE RIGHT.

    who grants rights? certainly not the state, government or any man, although they would like to think they do…

    it is not a privilege or something that can be denied by another party, no matter how forceful, manipulative, coercive or destructive they may be…or have been.

    this is all obvious to anyone who has any concept of what, exactly and actually is, freedom/liberty/self-determination.
    regardless of what pompous ignorant firework-july4th amerikans, judges, members of, or the corporation, most unwittingly worship, and call the UNITED STATES, has to say about it…

    but hey, most people are brainwashed by this CULT-ure, so its a little understandable, albeit unfortunate, to see the height of ignorance, arrogance and delusional-false-patriotic-collective-socialists promoting big government-wall street-corporate-banking-military fascism…even as they rape and pillage the lower and middle classes, and wage wars across the globe.

    Most people have no clue what freedom is, who has it, or who gives it, and it is obvious most people are slaves in the worst kind of way, for their minds are already enslaved through their own choosing, willingness and ignorance.

    whats even worse, since people do not take the time to truly learn and understand the matter to a level beyond mere animalistic thought, these types of attitudes will lead to the destruction of this country and the world, and after the 'Greater Depression' and 'WW3' hind sight will be 20/20 as it always has been for those who care to look and perceive, learn and understand, if they are able and willing, however, much to late it will be to change what has already occurred…even so, there will be some witnesses to these atrocities.

    history has already taught all of this, although the majority have not learned and understood…nor will they, for they care not, and love not the TRUTH.

    so their fate is sealed, and the result is inevitable…

    what a wretched curse and a despicable, destructive, disease mankind has become on the face of the earth…

  • Anonymous 2010.2.17 at 22:09 | Quote

    sure you can secede, but can you keep your state from the union once you have it? As for the right to secede, its one of those options that is not and can not be dictated by law, people just have to want it enough to take it. Unfortunately horrible precursors were left when the civil war occurred with it automatically being assumed that right was waived afterward and the actions to keep the status quo was justifiable (i.e war and the destruction across the nation side by the union.)

  • Anonymous 2010.2.17 at 23:04 | Quote

    Of course the States have a right to secede from the Union! As one commenter stated the Declaration of Independence was a statement of our right to secede. It would be irrational and self-contradicting for a government founded through secession to deny that right to secede to its own member States.
    The basic laws of logic dictate that any one (in this case any State) who joins a Union of one's own volition has the right to depart that Union by and of one's own volition.
    As to the commenter who puzzled the question of Patriotism and Secession, please realize that Patriotism is not to a government or a land mass. Patriotism is to an ideology and the ideology of The United States of America is found in The Constitution. Patriotism is loyalty to The Constitution and the principle contain there in. That is why ever elected official must swear an oath to The Constitution. They swear to uphold and defend The Constitution against all enemies, foreign and domestic. The only problem is every member of Congress, with the exception of Ron Paul and Dennis Kucinich, has committed Treason against the very document they swore to uphold. They would have to arrest, try and execute themselves.

  • Allen Charles Report 2010.2.17 at 23:14 | Quote

    The idea of secession will of course vanish when a neocon Republican majority is reestablished in a year or two or a few years which ever comes first.

    A much better return to Constitutional government could be much better served with the orginal way the US House and US Senate was chosen. The House was the PEOPLE's House but the Senate was more accurately established as the STATES' Senate elected to represent the State Legislatures, being elected by the State Legislatures and NOT by a general election allowing the people to vote on their election. If this was still done today none of the federal programs not desired by the states could or would ever be passed and made a binding law. Some have said the chnage in the US Senate election was pushed by JP Morgan and others wanting a Central bank and knowing they could have never been successful establishing the Fed, they bank rolled the Progressives to change the Constitution.

  • Anonymous 2010.2.18 at 09:56 | Quote

    Anyone else notice the irony of stating that secession is unconstitutional, and therefore is not allowed?

  • Anonymous 2010.2.18 at 10:12 | Quote

    The notion that a seceding state would need permission from the body it wishes to secede from seems absurd to me. The act of secession is inherently a state issue requiring no third party. From the state's perspective, upon secession the U.S. Supreme Court retains all the relevance of the Supreme Court of Canada or Mexico.

    The civil war, while fortunately resulting in an end to slavery, was nonetheless an unconstitutional use of federal power so I can't see how it could possibly be used as some kind of legal precedent.

  • KingWPOS 2010.2.18 at 12:23 | Quote

    Yes, nowhere does Scalia outright state that a state does not have the right to secede…probably learn to read things more accurately and not use the statutory, lawyer analysis.

    Even if he did say it exactly, who is he? What is his function? He helps make decisions on issues of Constitutionality and nothing more. The Supreme Court cannot "change" the Constitution in any form…they simply affirm whether inferior law is valid and within the confines of the Constitution. That role is defined in the Constitution itself. Regardless of what they think, say, or do, they have NEVER had the lawful ability to "interpret" as to limit or narrow the Constitution against the people themselves. If they are to "interpret" they are only allowed to define in the most liberal terms, and if to broaden the scope of meaning, only in the favor of the people, never in the favor of government. The Supreme Court is, just as the other branches totally bound by the 9th amendment. It IS the biggest single Constitutional limitation on the Supreme Court. PERIOD. So to answer the question of who is Scalia?: He and his buddies are nothing more than legal janitors of Congress and the President cleaning up their sloppy work.

    Now to the issue of secession, the bottom line is that:
    #1. There is no clause whatsoever in the Constitution that speaks to secession whatsoever, and therefore any possibility of Federal statute to the contrary would be void in whole. Any agreement entered into by a state would still be valid until its expiration or its breach of terms. (So literally any state with an agreement could walk at any time due to blatant breach of terms on many levels.)
    #2. If the people of a state(better described as “country”) decide to split away from the Union, it is a rejection of the binding document(contract) that forms our Union with a Federal government. That document is the Constitution.
    #3. Since it is not in the Constitution it is in any form, and the Supreme Court only deals with issues of Constitutionality, it does not involve the Supreme Court whatsoever. And only involves the Federal government’s involvement only to the extent to facilitate the separation.

    So in the end, the People of a state DO have the right to abolish part, or all of their governing system and install a new one. Sounds like they want their own freedom. Hmm… sounds like something out of the Declaration of Independence.

    But even though we talk of ourselves being a “Nation of Laws” and upholding “Freedom”(Boy, I want to wave my little plastic “made in China” American flag!) We would allow our Federal government to manipulate a secession into a bloodfest for “our own good” and the “good of that state”. Why?… WHY???? Because we are too ignorant to educate ourselves and learn from history(even our own).

  • TechiePatriot 2010.2.18 at 20:00 | Quote

    Just remember what President Abraham Lincoln said.

    "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. Nor is this right confined to cases
    in which the whole people of an existing government may choose to exercise it. Any portion of such people,
    that can, may revolutionize, and make their own of so much of the territory as they inhabit."
    - Abraham Lincoln, speech in Congress January 1848)

    "No state, upon its own mere motion, can lawfully get out of the Union. Plainly, the central idea of secession, is the essence of anarchy."
    - Abraham Lincoln

  • Anonymous 2010.2.20 at 12:24 | Quote

    President Buchanan, in a speech before Congress in December of 1860 (which was when South Carolina left the Union) said the following:
    "The question fairly stated is, Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State. After much serious reflection I have arrived at the conclusion that no such power has been delegated to Congress or to any other department of the Federal Government. It is manifest upon an inspection of the Constitution that this is not among the specific and enumerated powers granted to Congress, and it is equally apparent that its exercise is not " necessary and proper for carrying into execution " any one of these powers. So far from this power having been delegated to Congress, it was expressly refused by the Convention which framed the Constitution."

  • Anonymous 2010.2.22 at 18:26 | Quote

    I find it interesting that legal scholars continue to look for textual support for secession in the very document from which states wish to secede. Indeed, the fear that the "federal power" would, over time, become all encompassing and tryannical is a contingent that the founders strove to prevent but recognized may nonetheless occur.

    Our country was founded on the NATURAL RIGHT inherent in every human being to chose their own form of government. By definition, a natural right exists beyond the text of codified laws.

    Present partisianship aside, the founders most certainly DID contemplate a right to secede. It is set forth in the Declaration of Independence.

    Also, it is interesting that many northern states threatened to secede from the republic over the question of slavery.

    More importantly, to the extent one wishes to find textual support for the right to secede in the constituion, one need look for further than the 2nd Amendment.

    The primary justification and purpose for the second amendment was not for individual protection from thieves or the right to hunt. Rather, it was for the purpose of allowing states to organize militias to oppose a federal standing army. In other words, by providing the right to bear arms, the founders ensured citizens would have the MEANS, not just the right to secede.

    There is no question that states have a right to secede. The REAL question that everyone is addressing is whether the national government will recognize this right absent military force.

    Clearly, if the Civil War had gone the other way, there would be no debate of states' right to secede. Rights can exist on paper and in the minds and hearts of people, but are utterly worthless unless they can be vindicated through force.

    The whole point of civil society is to designate the power of force to a central authority for stability. The founders' principal objective was to diffuse this power and scatter it among as many different political branches and subdivisions so that no one group had sole authority to exercise this power.

    In doing so, they expressly recognized that citizens–whose rights arise by NATURAL LAW and do not depend on any human constructed political system–have the power to resist and overthrow a tryanical government.

    Patriots love their country and see government as a necessary evil. Traitors love only the aggrandizement of power.

  • Anonymous 2010.2.22 at 22:38 | Quote

    Yeah, and once you've succeeded in seceding, have fun negotiating treaties with all of your surrounding states to support commerce.

    And make sure you save your pennies, because once FEDERAL monies stop flowing to your state (to cover medicare, education, defense, etc) you're gonna need it.

    While you're at it, make sure you can provide for you common defense since ALL federal troops will have to vacate your territory.

    Boy howdy, its gonna get expensive really fast.

    And those are just the simple things.

    Good luck.

  • Eric Turkewitz 2010.2.23 at 05:58 | Quote

    My thanks to all who commented who, despite the passionate interest in the subject, kept the conversation civil.

    I've now followed up with two additional posts. The first has the rejection letters from other judges:

    The Supreme Court's Other Responses to the Screenwriter's Secession Question

    But the second takes direct issue with Scalia's inability to see how the issue can get to the Supreme Court:
    How the Supreme Court Could Hear the Secession Issue (A Response to Justice Scalia)

  • Anonymous 2010.2.23 at 23:24 | Quote

    @andrew oh-willeke – you do know that the yankees (new england) contemplated secession as early as 1804, right?

  • Anonymous 2010.3.23 at 08:38 | Quote

    Facinating. The reason SCOTUS may not hear the case is if a state secedes, the SCOTUS is no longer the binding court of that state. The State's Supreme Court is.

    The Constitution is not a document demanding you must be a slave to a federal entity. Each state is sovereign. Has it's own constitution – its own courts.

    You can't "force" a state to stay married to you. And without the states, the federal government doesn't exist.

    Lets face it – 38 states challenging the federal government now over this ugly HC law.

    There's a problem in the nation.

    And those screaming "civil war" are wrong. Our nation is technologically advance now, seceding could be handled on "paper." A "paper" revolution. A "revolutionary" revolution.

    We're all tied together – no one needs to ride on horseback to deliver messages – and months in between.

    We have ballots now instead of bullets. And a "paper" divorce could be handled very easily after a vote in a state.

    And when you have 38 states pushing back against the federal government, you've got a problem brewing. A big one.

    If 38 states say to the federal government "if you ingore our authority, we will ignore yours". . . someone in washington is bound to listen.

    And we'll be treated to the federal government going after 38 states now to declare their "laws" as subordinate. . .what a treat. And if those 38 states band together and tell Washington "fine, you're on your own with 12 states then". . .there isn't anything Washington could do about it.

    Think about it – 38 contiguous states would go on, business as usual, only without acknowledging Washington's authority. (Since Washington wasn't willing to acknolwedge the states' authority.)

    Washington would be in a world of hurt.

    This discussion isn't over – not by a long shot.

  • Eric Turkewitz 2010.3.23 at 08:54 | Quote

    The reason SCOTUS may not hear the case is if a state secedes, the SCOTUS is no longer the binding court of that state. The State's Supreme Court is.

    It would not be the first time that a party to a lawsuit claims that a court doesn't have jurisdiction to hear the matter.

    The theoretical means by which the argument could come before the court is set forth in a follow-up post:

    How the Supreme Court Could Hear the Secession Issue (A Response to Justice Scalia)

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