Scalia: No Right to Secede
A fun tidbit from the Justice’s fan mail. Patriotic Texans and Vermonters are no doubt disappointed.
by Will · February 17, 2010
A fun tidbit from the Justice’s fan mail. Patriotic Texans and Vermonters are no doubt disappointed.
Will
Will writes from Washington, D.C. (well, Arlington, Virginia). You can reach him at willblogcorrespondence at gmail dot com.
July 18, 2013
July 17, 2023
January 31, 2020
Devcat is spending time with extended family right now. After some intermittent hiccups, our web host moved us to a new server. With any luck, performance will improve.
The Days of Real Sport: The Hay Mow
September 6, 2024
September 5, 2024
Movie of an Amateur Poker Player Catching Four Aces
September 3, 2024
September 2, 2024
Welcome to the Hotel California.Report
Damn you, Will. This time you beat me to the punch. This shall not be taken lightly.Report
I’m on the Middlebury Institute (the pro-secession “think tank” in Vermont) email list and I have like five Google alerts keyed for secession-related words and phrases. When it comes to leaving the Union, you’ve got to get up pretty early in the morning to beat me to the punch, Thompson.Report
I thought the Americans hammered out that states couldn’t secede after that civil war thing once and for all?Report
It was back burnered.Report
That’s pretty much what Scalia says. It’s not exactly a law-oriented analysis, though. The standing issue is more interesting. If a state were to secede, presumably the US or a citizen would have standing to sue the state for a ruling that the secession is unconstitutional. This would be rather silly, though, since the state will refuse to recognize the Court’s jurisdiction over it. On the other hand, there’s no law (to my knowledge) prohibiting secession, so there would probably be no pre-secession right to seek a declaratory judgment that secession is constitutional as I suspect there would be no “case or controversy” for the Court to rule upon (I’m a bit rusty on the “case or controversy” requirement though, so I could be wrong). Post-secession, I suppose the state could challenge the federal government’s right to stop the secession once the federal government acted to do so. But even there, the state would be claiming that it is, in essence, a foreign power and that the federal government has no right to intervene in its affairs. I’m not aware of any cases where a foreign government has successfully litigated for an injunction against an attack by the USA. All of which is to say that I can’t imagine the Court ever reaching the question of the Constitutionality of secession even if a state were to attempt to secede. As such, Scalia’s probably right – the right to secede exists only insofar as the elected branches of the federal government permit it to exist without the use of force or threats of force.Report
So Mark, you’re a law talking guy. There has always been a part of the constitution , that I found interesting and also relates to this topic.
Article one, Section 10 – Powers prohibited of States
No State shall enter into any Treaty, Alliance, or Confederation; …
Now I have deployed that quote on peeps when they talk about the Noble Confederacy and such, the sputtering and stunned looks I got were quite amusing. But this section reads to me like states just can’t do certain things on their own. While certainly not saying they can’t secede, it does read like some powers that individual countries have are off limits.
How does this section enter into any of this discussion?
Signed
Uncertain in the USReport
Definitely an appropriate quote to use, greg, I mean Uncertain. I actually don’t have much to add that wouldn’t be fairly self-evident from looking at Art. I, Sec. 10. At a minimum, though, that section makes clear that there are many arenas in which the states are not intended to be sovereigns. Indeed, those arenas are the arenas that traditionally make up the core duties of any true sovereign – foreign policy, coinage, etc. Of course, as you say, this doesn’t really refute the case for the constitutionality of secession. But it does make clear that, so long as they remain in the union, the states are far from true sovereigns.Report
Speaking of Art. I, Sec. 10……
http://www.palmettoscoop.com/2010/02/17/bill-would-ban-federal-currency-in-sc/
In addition to the cites in the article, I’d like to see how this would be implemented without violating Art. I, Sec. 10’s “No state shall….coin money.”Report
Unless, of course, you’re seceding from a seceding state. I’m still not entirely sure how West Virginia is a state…Report
Because Lincoln and his GOP pals said so!Report
Umm, really?
So a legal/moral question can be resolved through violence rather than civilized means?
Might makes right, I guess.Report
Of course, if a corporation wanted to declare itself a sovereign nation to avoid U.S. taxes, Scalia would have no problem with that.Report
Well, I love the Eyetalian stallion, Anton Scalia, however if he bases the legal position that a state can’t secede on “The Pledge of Allegiance,” he can blow it out his ass!
And, the South (New England, Vermont, Maine, the Ohio Valley, Texas, the Left Coast) shall rise again!!!
…look away, look away, look away Dixieland, live free or die, etc, etc!Report
This has been said many times before but I just want to say that regardless of viewpoint, it is time extremely well spent to take a look at a sampling of Scalia’s opinions on major topics. They are indeed gems of logic and (seemingly — I am not a lawyer) knowledge of the history of Anglo-American legal interpretation and action. His dissent in McConnell v. SEC I found particularly compelling — both those who would dismiss free speech concerns in campaign finance law as well as those who defend them but seek to draw lines on the extent to which they would follow the orthodox free-speech line need to contend with a statement of the latter as clear and sound as this.
This doesn’t mean his view must become our law at all or any times — but it does mean that there is always a logical counterpoint available that should force the prevailing view to be completely clear about the basis for its actions.Report
McConnell v. FEC, I meant, of course!Report
Sure, Scalia’s dissent to Lawrence v. Texas, in which he declares the impossibility of distinguishing homosexuality from bestiality, is a masterpiece of logic.Report
And the same of two- from three-, four-, and more-person marriages. I didn’t mean to say he was uniformly cogent. People have off days.Report
Lawrence v. Texas is perhaps unique, in that what Clarence Thomas wrote makes some kind of sense.Report
His stuff normally does.
It’s Scalia that requires you to have a background in conservative Catholicism to understand why he voted the way he did in Gonzales v. Raich.
Thomas’s stuff only asks you to have read the Constitution before.Report