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).
That makes no sense. The winner isn’t necessary right....they just happened to win.
However, there is a difference between right and law, as our Declaration of Independence makes plain in the context of providing a logical and practical justification for the American revolt against British rule:
"...governments are instituted among men, deriving their just powers from the consent of the governed." (But) "whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government..."
At the same time: "prudence, indeed, will dictate that governments long established should not be changed for light and transient causes..."
"But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security."
That sounds very much to me like an expression of natural law, but not a deterministic one in the sense that the validity of those propositions depend solely upon their successful achievement.
Rather, the words above are intended to express an objective standard for the maintenance of self-governance under duress, which may be summarized in this way:
People have a natural right to be free and choose their own form of political organization, significant alterations to which ought not be made easily or due to temporary circumstances. But if their government demonstrates a pattern of behavior for which the sole rational explanation is a desire to impose tyranny, the people then have both the right and a duty to act to establish a new government.By the standard expressed above, in both original and derivative forms, I think we have as yet fallen far short of the standard for revolution. The right of states as sovereign entities in our Federal Republic to secede from the Federal government is a much broader matter. I think the standard ought to be something higher than a majority vote of state legislatures and for something truly immutable in the absence of withdrawal from the Union. After all, it really didn't work out too well the last time.
(The latter, by the way does codify the DUTY not right, or people to overthrow tyrannical governemnts, but I'm back to revolution when I want to stay on secession).
The question of secession is much simpler: is the Constitution an irrevocable contract, regardless of what anyone does.
Scalia's answer does not satisfy. It is simply: Might Makes Right. That's not a legal answer.
The answer is to be found in a careful study of the Constitution and the documents surrounding its creation. There are several books that explore this:
One Nation, Indivisible? A Study of Secession and the Constitution (Paperback) ~ Robert, F. Hawes (Author)
There is also the historical view, ie: what was said the first time. Like this book:
Constitutional History Secession, A (Hardcover) ~ John Graham (Author), Donald Livingston (Foreword)
When in the Course of Human Events: Arguing the Case for Southern Secession (Paperback) ~ Charles Adams (Author)
There is even a "how to" guide for Vermont.
I imagine Scalia would have a better answer if it came up before the court, as it well may. This was a short sweet note to someone.
Bump. Good information.
In this type of discusson people need to be precise in their choice of words, as the founders were in their choice of words in the Constition.
Per John Locck, PERSONS have the right to revolution. That is quite different from GOVERNMENTS having such a right. Governments (state, federal and world) do not have rights. They have powers.
The proper way to phrase the question= is whether Maine (or any government) has the POWER to do what it wants.