Scalia on the Legality of Secession

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A few years ago a screenwriter, Dan Turkewitz, solicited the opinions of all nine Supreme Court justices on their views of the legality of secession.  Apparently, Turkewitz was working on a screenplay in which the state of Maine attempts to secede from the United States to join Canada.  Only one justice responded and it turned out to be, arguably, the court’s most conservative member.

And there you have it.  What value you place in Scalia’s response is entirely up to you.  Like I’ve said before, I have very little interest in the question of whether a state has the right to secede from the union.  I do find it interesting, however, that the most conservative member of the court can find nothing in the Constitution that would render it legal.

Hey, there is always revolution.  [Hat-tip to Andy Hall]

16 comments… add one

  • James F. Epperson Oct 31, 2012

    I find it interesting—and disappointing—that he did not cite Texas v. White.

    • Andy Hall Oct 31, 2012

      I’m not sure Mr. Justice Scalia, in all his idiosyncratic glory, feels bound by Texas v. White — though virtually any other scholar would mention it as the standing law of the land. What’s interesting about this is that of all the Supremes, Scalia is the one who generally makes the loudest noise about being true to the Founders’ original intent, etc. So if present-day supporters of secession can get no love from him, there’s not much left in terms of legal argument to make.

    • Ken Noe Oct 31, 2012

      This is the same guy, after all, who refused to say if he supported Marbury v. Madison during his Supreme Court confirmation hearings.

      • Lyle Smith Nov 2, 2012

        He’s a smart guy.

  • Pat Young Oct 31, 2012

    Apart from Rick Perry, has any important living political figure or judge said there is a right to secede in the Constitution? If there was, the Confederates would have filed a lawsuit instead of firing on Ft. Sumter.

    • Kevin Levin Oct 31, 2012

      No, if you mean anyone who takes themselves seriously and is not pandering to a certain demographic.

  • Richard Williams Oct 31, 2012

    Actually, I believe Scalia is attempting to combat the growing call for secession by those on the left: http://oldvirginiablog.blogspot.com/2009/04/blues-over-secession.html

    • Kevin Levin Oct 31, 2012

      Even if that is true, so what? Personally, I don’t find the political differences to be all that interesting. Those on the right and left who talk seriously about secession are kooks.

      • Richard Williams Oct 31, 2012

        Then I don’t understand why you mentioned Scalia’s conservatism – twice.

        • Kevin Levin Oct 31, 2012

          It was meant to highlight his understanding of the original intent of the Founders.

  • Dudley Bokoski Oct 31, 2012

    I see Scalia as answering the question he was asked, namely what would be the nature and likely result of such a proceeding in the here and now. In regarding the question as having been answered by the war, in that the winners would not then either be required or desired to consent to any adjudication of the question, it is not necessary to enter into any discussion of whether (in 1861 or prior) it would have constitutional.

    It is, as Scalia notes, a settled question. But it is an interesting one. Lincoln advanced the argument, if I remember it correctly, that states were not states prior to becoming part of the Union and therefore had no standing to return to their prior status. While there is a logic to his argument, the interesting legal case would have been if any of the states which joined the Union in documents which specifically reserved the right to leave the compact had attempted to do so (such as, and again my memory could be foggy), Virginia.

    In a way the question is like the designated hitter. You can have whatever opinion you like on the matter, but since the Union (literally, the Union-MLBPA) won’t allow secession (going back to baseball the way it was meant to be) there is not much point to the discussion.

  • Bummer Nov 1, 2012

    I have not always agreed with Scalia, however coming through the University of Chicago and helping create the Federalist Society, his tenaciousness impressed me. The judge is not afraid to argue his positions and the frankness of his response in this letter does not surprise me. As he has matured, this writer believes that Judge Scalia has tempered his opinionated verve and occasionally “lets sleeping dogs lie”.

    Bummer

  • Sir Nov 1, 2012

    Scalia only says that the civil war resolved the issue as to whether there is a right to secede, i.e., it was settled by force of arms. That’s political realist response and I suspect he avoids Texas v. White because it doesn’t provide much more rationale against the consitutionality of secession than Lincoln provided in his first Inaugural (i.e., not much). It’s clearly a post hoc analysis used to justify the outcome. It’s this kind of reasoning/rationale that prevented George Marshall from being brought up on war crimes for fire bombing vast swathes of civilian habitation – the winner gets lots of leeway. Might makes right. Scalia, obviously, doesn’t want to get into the quagmire, as a sitting Justice, of addressing hypotheticals. I suspect he finds Texas v. White to be dubious in reasoning, but also irrelevant because we all know that the political precedent of force of arms to crush secession has been achieved.

    Scalia does NOT address pre-war whether he thought there was a consitutional right to secede and he has NOTHING to say about what the founder’s intent was on that issue. Anyone who thinks so, simply isn’t reading very clearly.

    No one has any idea of what Scalia’s view of the contitutional right to secede was ante-bellum; only post bellum.

    Consequently, I don’t find the letter all that interesting. Did anyone REALLY think that a sitting U.S. Supremem Court Justice was going to opine that there is a modern right of secession? Really?

  • Lyle Smith Nov 2, 2012

    I think Clarence Thomas is the most conservative member of the court.

  • Jayhawk Dec 10, 2012

    Scalia simply was not going to address the issue of Secession. His default position is based on the savage pinning of the seceded states to the union, with bayonets. When the 13 Colonies seceded from Great Britain in 1776, King George III made every effort he could, to force those 13 Colonies back into the fold, at the point of the BAYONET. In that case, it didn’t work. So the 1860-61 Secesion may well have been settled by bayonets and the deaths of over 600,000 soldiers, but from a legal aspect, the question remains. The Constitution is silent on the issue. No court yet, has ruled as to the constituitionality of Secession. The next question is whether or not NULLIFICATION is constitutional? Can a sovereign state nullify a Federal law that the citizens of that state refuse to enact and obey?

  • Bob H Feb 7, 2013

    “Any people anywhere, being inclined and having the power, have the
    right to rise up, and shake off the existing government, and form a new
    one that suits them better. This is a most valuable,— most sacred
    right—a right, which we hope and believe, is to liberate the world. Nor
    is this right confined to cases in which the whole people of an existing
    government, may choose to exercise it. Any portion of such people that
    can, may revolutionize, and make their own, of so much of the teritory
    as they inhabit.

    More than this, a majority of any portion of such people may
    revolutionize, putting down a minority, intermingled with, or near about
    them, who may oppose their movement. Such minority, was precisely the
    case, of the tories of our own revolution. It is a quality of
    revolutions not to go by old lines, or old laws; but to break up both,
    and make new ones.” ~ Abraham Lincoln, 1848

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