Scalia: No Right to Secede

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Will

Will writes from Washington, D.C. (well, Arlington, Virginia). You can reach him at willblogcorrespondence at gmail dot com.

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20 Responses

  1. Avatar Jaybird says:

    Welcome to the Hotel California.Report

  2. Damn you, Will. This time you beat me to the punch. This shall not be taken lightly.Report

    • Avatar Will in reply to Mark Thompson says:

      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

  3. Avatar North says:

    I thought the Americans hammered out that states couldn’t secede after that civil war thing once and for all?Report

    • Avatar Jaybird in reply to North says:

      It was back burnered.Report

    • Avatar 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

      • Avatar greginak in reply to Mark Thompson says:

        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

        • Avatar Mark Thompson in reply to greginak says:

          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

        • Avatar Mark Thompson in reply to greginak says:

          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

    • Avatar Kyle in reply to North says:

      Unless, of course, you’re seceding from a seceding state. I’m still not entirely sure how West Virginia is a state…Report

    • Avatar Louis B. in reply to North says:

      Umm, really?

      So a legal/moral question can be resolved through violence rather than civilized means?

      Might makes right, I guess.Report

  4. Avatar Mike Schilling says:

    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

  5. Avatar Bob Cheeks says:

    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

  6. Avatar Michael Drew says:

    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