It was as an oddball topic for this page for sure, as it dealt with something Prof. Eugene Volokh wrote on whether the issue of secession was resolved at Appomattox. In response I published a letter from Justice Antonin Scalia to my brother — that had been sitting in his drawer for a few years as a family curio — where Justice Scalia gave his very firm opinion that “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede”. The story of that letter is at the original post, and if you want the entertaining background you can get it there.
In the wake of the Obama-Romney election, however, that letter is back in the news. Yesterday Politico reported on people petitioning the government for the right to secede, because if you get 25,000 signatures you will get a response from the White House:
Using the Obama administration’s own We the People website, nearly two dozen petitions have sprung up asking the Obama administration for permission to withdraw from the Union.
The two most popular petitions, Texas and Louisiana, have both drawn more than 10,000 signatures each as of Monday morning. The Texas petition needs only 7,000 more signatures to trigger an official White House response.
That number has rapidly increased, as voters in 47 states who saw their presidential candidate come in second have been circulating petitions on the issue of secession. A quick Googling of Scalia No Right To Secede and you can see many bloggers have already hunted for original sources in the last 24 hours. And that, of course, leads back to the letter from Justice Scalia to my brother.
I’m sure I won’t be the first, or the last, to observe that a desire to secede based on the results of democracy seems a tad odd. Are the secessionists advocating dictatorship instead? Monarchy? Theocracy?
The only question I really have on all this is: When the White House says “No” to the secessionists, will they quote Justice Scalia as authority?
In responding to my brother Dan’s letter regarding the legal plausibility of Maine seceding from the union to join Canada, Justice Antonin Scalia raised two points. First, he said that the Civil War settled the issue of the constitutional basis for secession. Second, he indicated that he didn’t see how such an issue could even reach this nation’s high court.
I’m here today to take issue with both points before turning this blog (hopefully) back toward the personal injury field that is my bailiwick. With respect to the first assertion, Scalia’s exact words were:
If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.
There are no shortage of people willing to criticize such a position, because he simply states that might makes right. But the physically stronger side winning is not legal analysis, it is merely guns and tactics and doesn’t tell you squat about any legal basis. Many found that odd from a guy like Scalia who thrives on analysis.
But this post is really dedicated to Justice Scalia’s second assertion regarding who the actual parties to such a suit would be. And despite many dozens of blog postings regarding The Letter, I haven’t seen any discussion of this second point. Justice Scalia wrote:
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.
Well, let me take a crack at envisioning it: The United States is not party to the action for secession. Rather it is State v. State. Because if one state quits the union the others are saddled with the quitter’s share of the national debt. The other states, being unhappy about Maine (or Texas, Vermont, South Carolina, etc.) shirking its obligations, sue the departing state for its share.
And they bring that suit in the Supreme Court since the court has original jurisdiction to hear matters “between two or more states.” There isn’t any need for years worth of lower court legal wrangling, which is a nice bonus when writing a comedy for the big screen.
In fact, it’s this “It’s the money, stupid” plot line that my brother was using when he wrote to the justices, presaging the conservative Tea Party movement by three years. The set-up in the story, in a nutshell, has three University of Maine stoners in a midnight stupor in desperate need of a political science paper for the next day. They write up a manifesto on the vast sums of money that Mainers owe due to the rapidly escalating irresponsibility in Washington, and then urge Maine to join Canada. Manifesto, of course, is the charitable word for rant. The rant hits the college rag. The local paper picks it up on a slow news day, it strikes a chord with many and people press their state government to address the issue, which ultimately goes to a state-wide referendum as the political farce takes off. Our three heroes use their status as potential founding fathers to further the never-ending pursuit of weed and women.
A Supreme Court battle forms part of the script, albeit not a giant one because courts aren’t as funny as standard-issue politicians or stoners, with the other states insisting that if Maine leaves they take their part of the debt with them. It’s all about the money.
But wait!, I hear you say regarding the legalities. If a state has left the union then the suit is no longer “between two or more states.” A seceding state would most assuredly claim that the high court doesn’t have jurisdiction to hear the matter. Lack of jurisdiction is a common defense in suits, and a court must do an analysis to determine its merit when raised.
And therein lies the issue of how secession can land before the Supremes; the court must resolve a jurisdictional issue. In order for the court to resolve the merits of the money suit they must first decide whether or not the exiting state has legally left. If the state has legally left, the court can’t hear the case because it is not between “two or more states.”
This analysis seems backwards from the way jurisdiction is usually discussed. Merits generally come after jurisdiction has been established. But in this case the merits discussion has to do with money owed. And the issue of whether the court can even hear the case as a dispute between states must first be resolved, and that means looking at the issue of whether secession was legal.
How the case would be resolved in the real world is, of course, beside the point. This is, after all, a movie and the level of detail above wouldn’t be in it.
But Justice Scalia had written that he can’t think of how the matter of secession would get to the court. Well judge, I see how the issue can get to you. At least in theory. And it’s a pure jurisdictional question in a battle between states over money.
And for those wondering how, exactly, the Supreme Court could enforce a judgment against a seceding state in the event the court dumped the unhappy secessionists? Well, that has always been a problem since the judiciary doesn’t have a military wing to it. In 1957, the Army was called in on Executive Order to integrate Central High School in Little Rock. It remains a problem today out in Maricopa County, Arizona, where a court officer was caught on camera reading the files of a defense lawyer while she was addressing the court. The guy was held in contempt, and ordered to apologize on the courthouse steps. This was followed by a law enforcement sick-out. Enforcement can be tricky.
But the difficulty with enforcement of a court order is an issue separate from having the matter heard in the first place. Under this scenario, if a military solution were to be used to stop secession, it would come after a legal analysis of the merits.
Dan’s script, being a political farce, obviously doesn’t end with a military solution. I can’t give away more since it is just now being entered in competitions and my brother is still scrapping for an agent to represent him. (Anyone out there? Is this thing on?) But of his five finished screenplays, this is the best. And all the others have advanced in competitions.
So in the end, Justice Scalia, I think it can be done. Granted, I’m pretty far afield of personal injury law — you really can’t get any further afield than this — but then, so is almost everyone else that opines on the subject with the exception of a few scholars.
If I’ve completely blown the analysis — and I admit that despite its simplicity that is certainly possible — I’m sure people will let me know.
I watched (from my iPhone) with fascination as the story on my little post exploded across big time blogs/media (Washington Post, NBC, CBS, WSJ, Volokh, ATL, Politico, and many more). It’s tough to blog with an iPhone though, and Mrs. NYPILB would not have been pleased if I was tethered to a laptop instead of frolicking on Floridian beaches, pools and golf courses. (That’s Dan with my kids above, in his alter ego role as Super Uncle.)
Thus far, over 23,000 page views for that one post.
A little back story on why he wrote to the members of the court, over my objection, might be helpful. When he wrote his award-winning sci-fi thriller of astronauts stranded in space and fighting with each other for survival, he sought expertise on the plausibility of his plot. So he wrote to astronauts. And he got responses.
If astronauts would respond to him, he figured, why not Supreme Court justices, especially given the lack of people that could speak authoritatively on the issue of secession? When I told him he wouldn’t get meaningful responses, I was right on 9/10 of the justices he wrote to. Scalia was the exception.
But while Scalia was the only one to respond to the substance of my brother’s request, other responses did come in. He received three personally signed rejection letters from Justices Clarence Thomas, Samuel Alito and Stephen Breyer, which are all lovingly reproduced here. While reproducing rejection letters isn’t exactly the norm, these happen to be first rate, classy rejections. If you’re gonna get dumped, it might as well be by the best. Frankly, I was stunned that he even got these. And, as you can see, none of them are form letters. And they use top-notch stationary. Just in case you were wondering.
On the actual substance of Scalia’s letter, I will follow in another post with my thoughts on how the issue could reach the high court, despite Scalia’s protest in the letter that:
“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.”
Regardless of whether one agrees with Scalia’s political-judicial beliefs, the guy clearly picked up major cool points for giving my brother a substantive response. Justices Thomas, Alito and Breyer also picked up a few of those points, to the extent that they did take the time to respond, albeit with rejection. Justice Souter picked up a single point for having a secretary respond.
On the flight back from Florida I pondered a question: Is there any significance to the fact that the responding troika of Scalia-Alito-Thomas form 3/4 of the conservative wing?
I’ll leave it to others to opine on that subject.
Addendum: A commenter notes that Justice Alito spelled our last name wrong and that this deserves a head-shaking response: “‘Turkwitz??’ Not true, Justice Alito, not true.”