Skip to comments.Antonin Scalia: No right to secede
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:
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.
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.