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Posted on 02/17/2010 9:08:09 AM PST by Palter
Is there a right to secede from the Union, or did the Civil War settle that?
Certain Tea Partiers have raised the possibility of getting out while the getting's good, setting off a round of debate on legal blogs. The more cerebral theorists at the smart legal blog The Volokh Conspiracy question whether such a right exists.
Enter a New York personal injury lawyer, and Supreme Court Justice Antonin Scalia.
The lawyer, Eric Turkewitz, says his brother Dan, a screenwriter, put just such a question to all of the Supreme Court justices in 2006 -- he was working on an idea about Maine leaving the U.S.and a big showdown at the Supreme Court -- and Scalia responded. His answer was no:
"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."
(Excerpt) Read more at voices.washingtonpost.com ...
Well, I think the COTUS grants the fed power to protect the borders (?)
Then start looking at those BC cases and you better do it fast.
Scalia is right as a legal matter. John Locke’s right of revolution that was used as a justification for the first American revolution is highly contingent — you have a right to revolution under the natural law if you win. If you don’t win, then you didn’t have a right to revolution. Fundamentally, the right of revolution is extra-legal. The constitution cannot trump the natural law, but it also doesn’t have to recognize all of the natural law (although there may be an argument that the catchall phrases in the 9th and 10th amendments indicate that the constitution doesn’t contradict the natural law).
Again,,, it’s an interesting and humorous concept that the Supreme court says it’s illegal to seceed. Imagine the USA truly elected a marxist and became a socialist dictatorship. And that a state decided that the time to end their association had come, but that this SAME state still thought they must abide by supreme court rulings. Odd.
This reminds me of thinking you can stop a mass shooting incident in the mall, by posting signs that guns are priohibited on the premises.
Well then that only leaves us with Judge Napolitano’s opinion:
http://www.youtube.com/watch?v=9b3Q89FZoY0
I never understood the idea that somehow a war decides a constitutional question.
Since when does OVERPOWERING the other side mean you are constitutionally correct?
That’s stupid, and those who say things like “the Civil War decided that” aren’t very logical thinkers.
It is a valid question, but to take the easy way out by pointing to the war is lame.
Beautifully said.
ping
That makes no sense. The winner isn’t necessary right....they just happened to win.
But the point remains,,,If it’s even necessary to argue and discuss the right to seceed, then something has gone *seriously* wrong in DC. Instead of focusing on convincing us that they can force everyone’s continued association, maybe they better start to look deep and hard at why they are pissing off so many people and states.
Time for them to change their totalitarian Bullcrap, and not think they can just use legalistic games to force people to remain.
Of possible interest.
Could Justice Scalia be the author of the majority decision in Texas v White version 2.0?
Then why did the US specifically act to readmit the confederate states to the union? If they had no right to secede, then they never really left.
Also, if Virginia never left the union then the creation of the state of West Virginia, against the will of Virginia, would have been unconstitutional.
I don’t think the Supreme Court had much to do with whether secession is legitimate.
It’s a war issue and if ever the need becomes great enough again it will be settled that way again.
Unless America is so rotten from progressivism that it can’t even lift a finger.
Well technically, Nino, it's not the sort of thing you normally get a legal opinion about.
One would have to assume that a socialist dictatorship would have done away with the Supreme Court when it did away with the rest of the Constitution, so your point is somewhat moot.
With at least two of the three branches of government stating they don’t need no stinkin’ constitution then the states should be able to do whatever they please. Yo, Tony, didn’t one branch slap you down the other night on national, make that world, tv? Bought the clue, yet?
I worry about you brother,, if you keep holding hour feelings inside, you might get an ulcer. Just say what you REALLY think!
Just kidding,, you said it perfectly. They shred the constitution on a daily basis. Then when faced with rising anger,,,they get to wave it in our face to control us? Who do these pricks think they’re kidding? Either both sides are bound by it, or none are.
It’d be nice if Scalia would be so vocal about the illegality of the socialist revolution. Or about Obama being required to prove eligibility.
It didn't. Texas v White did in 1869. But even that case left open the option of secession with the consent of the other states so I don't know where Justice Scalia got his 'no secession at all' position.
If states do not have the right the right to secede, there is no right of a state to deny coercion and power of the Fed.
But isn’t the US Constitution a contract between the Federal Government and the States? Absolutely!
Isn’t the 10th amendment of the “Contract” the opt out provisions given to the states if the Federal Government violates their end of the contract? Absolutely.
Nobody in their right mind would ever enter into a contract that gives exclusive rights for one party to violate the provisions of the contract without recourse?
The States would have never ratified the Constitution without the opt out provision the 10th Amendment legally gives the
states.
The only thing the civil war decided about states rights is that the Union North had a financially superior fighting force and the southern states were beat into submission.
The use of force in upholding individual state rights is specific in the 10th Amendment against federal tyranny. The southern states exercised their option and surrendered.
HOWEVER NOW I don’t believe the rust belt now has the financial power to hold the individual states hostage if the states decide to form a different Republic. A 235 year old contract is still clearly a contract unless 35 states declare it null and void OR the Federal government breaks it’s end of the contract, which it clearly has.
By using Scalia's logic, another civil war where the succeeding states won - would settle the question in the affirmative - yes it is legal.
We didn’t have the right to leave the British Empire either, according to King George. Yet here we are. Ponder that for a moment.
AIP wanted the choice voted on again. Now AIP has transformed into a super conservative party that keeps the Repubs up here honest, somewhat. AIP has had 2 Govs up here in the last 50 years.
Bottomline, we are now all culturally Americans and that prevents any separation.
No, it actually does make sense in the case of a revolution. If the rebels win, then there exists a new country based upon the idea that secession was justified in this case. The only people left standing are the founding fathers of the new country and they say so. If they lose, the definition of who is the "authority" remains unchanged, and of course that "authority" finds the rebellion UNjustified.
You hear the sayings "The winners write the history books" and "None dare call it treason [if it secedes]", which are kind of glib, but they're stating that same basic truth.
I tend to agree that Scalia’s comment about the Civil War deciding it was wrong. I think his opinion that states do not have a Constitutional right to secede is correct though.
The Confederate States had no Constitutional right to secede. If they had won the war it wouldn’t have mattered, but it would have been a successful revolution as opposed to a vindication of their “constitutional right” to secede.
If it gets to the point where a state or states want to secede, I would presume there would be referendums in those states. If they passed, I would then imagine it would be up to the U.S. Congress to pass legislation allowing those states to secede, which the POTUS would then have to sign.
If such legislation was not passed, I would think the seceding states would then have to choose between remaining in the United States, or going to war to win independence. Of course, the mere threat of going to war might convince Congress to consent to the secession.
Alternatively the states might declare themselves free, refuse to abide by the laws of the United States, prevent their citizens from paying Federal taxes, take control of their borders, etc., and then put the onus on the Federal Government to either use force, or consent to the secession.
I hope it never comes to that.
The didn't. Once the rebellious states complied with the requirements placed on them by the Reconstruction Acts they had there delegations readmitted to Congress and not the states readmitted to the Union.
If they had no right to secede, then they never really left.
Bingo.
Also, if Virginia never left the union then the creation of the state of West Virginia, against the will of Virginia, would have been unconstitutional.
No. An organization of Virginia legislators who remained loyal to the U.S., and who coincidentally mainly came from western Virginia, got themselves recognized by Congress as the legitimate legislature. They voted to partition and Congress approved.
Dixie ping
I take his statement with a grain of salt here.
He is given the choice between two answers, outside the courtroom, for a play. He is not a stupid man, and knows that every word he says will be looked at under a microscope.
If he answers No, like he did, some people on the far right will discuss what an idiot he is and that will be the end of it.
If he answers Yes, the incredible sh*tstorm that it would’ve started would be picked up by the MSM and blown so far out of proportion by this administration it is unimaginable how much crap he would have had to put up with.
He chose correctly.
My dad used to say that succession was legal because they were “freely joined” States. I pointed out that ALL legal contracts must be “freely joined” by their adherents, yet they are not all similarly able to be dissolved by the unilateral actions of one of the signatories to that legal contract.
“One would have to assume that a socialist dictatorship would have done away with the Supreme Court when it did away with the rest of the Constitution, so your point is somewhat moot.”
Not really,, ever hear of the Supreme Court of the Soviet Union? A Socialist takeover here would almost certainly leave familiar things like the Supreme court intact as window dressing. FDR demonstrated this with his court packing scheme. They will leave it intact,,, as long as it falls into line. Socialist dictatorships are FAMOUS for having the form of the law. It makes them feel legitimate.
A US Supreme court controlled by the plotters,, Obama types,, would have a Hillary, an Ayers, A Maxine Waters, etc,, happily ruling in the favor of the Socialists. Don’t think Red Dawn,,think Obama and Nancy.
So it seems that your point is somewhat, shall we say, ,,,moot?
I tend to agree.
Interesting though that he states his thoughts that the Civil War ultimately decided the issue. Apparently he feels that’s a insurmountable strike against.
Yes, but the Constitution specifically required the consent of Virginia. At least if Virginia was still a state.
"Section 3 - New States""New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress."
The idea is that winning allows the winner to say what's legal and what's not, because they're writing the laws. The American Revolution was certainly illegal under British law and the Founding Fathers had no doubt that they'd have been hanged had they lost.
Revolution is literally the destruction of the old social contract, putting people back in the "state of nature." From there, a new social contract and government should arise.
“We didn’t have the right to leave the British Empire either, according to King George. Yet here we are. Ponder that for a moment.”
Absolutely right.
When the existing government abuses and usurps, trending toward despotism, it’s time to break away. Or so says the U.S. declaration of independence.
I have the greatest respect for Scalia, and perhaps his was meant to be a more limited response than indicated in this report, but on its face his statement is incorrect.
The judge says we have no right to secede. OK, what happens when a state DOES secede. Does the federal government have the right to invade the state, kill the inhabitants and set up its own government?
That’s what happened in 1861. A more important question for today is, at what point, does the Constitution become a worthless document? For it does become so, the federal government has seceded from the states.
Might does not make right.
Scalia is probably right, exept that if session is the issue then the Constitution is not the document on point.
Does his might ring a bell ?
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, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation
That's exactly right. If the secessionists won, history would view their acts as legal. In the Civil War, the anti-secession forces prevailed, thus settling the legal question, till the next time.
I’d like to see him do something to prevent from happening.
I found that interesting too, almost like he was looking for an excuse not to have to get into the legal side of it at all. To me honest what he thinks is moot anyway, it will never come in front of his bench until after the battles are fought and blood is spilled.
I would much rather know how my Governor and Attorney General feels than him on this subject anyway.
“We, the Delegates of the people of Virginia Do, in the name and behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensover the same shall be perverted to their injury or oppression and that every power granted thereby remains with them and at their will.”
Scalia is probably right, exept that if session is the issue then the Constitution is not the document on point.
Does his might ring a bell ?
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, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation
Will McDonnell veto the senate bill denying Virginia’s right to drill for oil?
Come on Bob!
Here are some other interesting points of discussion
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