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.
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.
By using Scalia's logic, another civil war where the succeeding states won - would settle the question in the affirmative - yes it is legal.
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.
Scalia is legally and morally correct.
The CSA is an example of a “failed state”. The civil war decided the issue. The confederates failed to establish a seperate nation. The USA is firmly correct in opposing secessionists.
This is no different than tax nulification nosense that is passed in state legislatures.
The judges work for the winner, or for the side that has more firepower. "Law" is all and only about power. "Constitutionally correct" is a patina.