Scalia: No Right to Secede

Mark Thompson in reply to North says:

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