Eugene says the Civil War didn’t settle whether there is a right to secede. Ilya agrees. But it looks like Justice Scalia might disagree. (Incidentally, how cool is it that Scalia actually answered a screenwriter’s letter with a substantive response?) Thanks to Ben Smith for the pointer.
tde says:
I thought Scalia’s response was strange.
He offered two reasons why there’s no right to secede: the civil war and the pledge of allegiance. No real “legal” analysis at all.
The first is nothing more than a might makes right argument and the second one is about as persuasive as positing that God exists because God is mentioned in the pledge of allegiance.
February 16, 2010, 6:37 pmfwb says:
Wow, he invokes the Pledge of Allegiance. Wow. Golly. Gee willikers.
I guess he wins the argument.
Wars do not settle questions. Wars suppress the issue but nothing is decided.
Scalia should try rereading the Constitution some time and locate the phrase he believes makes secession illegal. It will be hard because it does not not exist nor does any clause in the entire document even hint at a requirement that once in, there is no way out.
The Pledge is filled with inaccuracies and has had one purpose during its life in our Union. That purpose is to destroy the concept of State sovereignty and the knowledge that the US is not a nation but is a Union of nations. The Pledge exists for no other proper purpose.
Tiocfaidh ar la!
February 16, 2010, 6:48 pmMike says:
Tough crowd.
My thought was, “Wow. Cool.” Didn’t even occur to me to nit-pick the letter.
Incidentally…Nit-picking is usually not the sign of high intelligence. The smartest guys in the building are never working in the copy editing department.
Anyhow, cool story.
February 16, 2010, 6:52 pmii says:
Wouldn’t SCOTUS have original jurisdiction over a secession like the one imagined by this writer? “Seriousness and dignity” and all. I mean, Texas v. White was heard by SCOTUS as an original case. If they wanted to hear the case, they could, as it would be at the Court’s discretion, I would think. Is Justice Scalia suggesting with his comments that Congress could limit SCOTUS original jurisdiction under Art. III? That doesn’t seem right.
February 16, 2010, 6:54 pmDjDiverDan says:
If the question were put to me as a Judge (or as a Justice of the Supreme Court), it’s likely that I would read the question as: “Is there a legal right to secede under our Constitution.” Scalia is almost certainly correct that the answer to that particular question is NO. However, the existence [or nonexistence] of such a legal right would almost certainly be rendered irrelevant under the circumstances in which it is most likely to come up.
If one were to tell John Adams, Thomas Jefferson, John Hancock, and the rest of our Founding Fathers that there was no legal right in British Law for 13 transatlantic colonies to secede from the British Empire in 1776, their answer would likely have been “We’ll see about that.” So, no such legal right existed then – shall we all throw out our American Flags and start singing “Hail to the Queen” — or shall we just recognize that that particular question of secession (and no others) was settled at Yorktown?
February 16, 2010, 6:55 pmtroll_dc2 says:
Prof. Kerr, what do you think? You don’t have to be an expert in the field of secession law to have a belief. (In fact, I know of no one who is an expert.)
February 16, 2010, 6:56 pmDavid McCourt says:
To raise a question about the “right” of secession (as opposed to revolution) that I didn’t see addressed in the old thread (forgive me if it is there, and I missed it in my quick read through):
I can understand the argument for the original 13 colonies (and a few others perhaps, such as Vermont and Texas): we were a pre-existing entity which voluntarily entered this compact of colonies, and now we wish to end our participation in it. Sort of a Lockean bargain in wholesale (“we the states”) rather than retail (“we the people”). This argument, of course, presupposes that the nature of the compact is such that continued consent to the compact is necessary, and puts to one side the effect of the Civil War on the idea of rescission. (Wars do decide things; they decided that the 13 colonies would be free and independent, for example).
But what of the 31 states that were originally territories of the United States, owned — bought and paid for — by the entity that is the U.S. and all its people? By what compact among equals did these territories enter the Union? These lands were Union property, and their inhabitants, having largely moved from the U.S., sought and were given the power to become self-governing states within the union. By what contractual right should the people who moved to these territories be allowed to take them out of the union? If Nebraska or Colorado, say, wished to rescind the bargain by which they became states, then the land should revert to being a territory, owned by the United States. Shouldn’t it?
February 16, 2010, 6:56 pmU.Va. Grad says:
(Incidentally, how cool is it that Scalia actually answered a screenwriter’s letter with a substantive response?)
The Justices’ personal files at the Library of Congress have a good amount of that stuff. For the most part, they only return correspondence to “important” people or personal acquaintances, but on occasion, you’ll see a letter to, e.g., a schoolkid explaining why a Justice voted in favor of some controversial ruling. It’s pretty cool to come across one of those.
February 16, 2010, 6:58 pmShelbyC says:
What if there is only one guy left in the building, a copy editor working late?
February 16, 2010, 6:58 pmU.Va. Grad says:
Wouldn’t the Equal Footing Doctrine, to the extent it has any force, cover this?
February 16, 2010, 7:00 pmOwen H. says:
tde- Scalia doesn’t cite the mention of God in the Pledge (which wasn’t added until the ’50s anyway), but the phrase, “On nation, indivisible”.
fwb- the separate states are not and never have been, under the Constitution, separate and sovereign nations. They did not view themselves as a collection of countries, but a single country. Always was.
However, Supreme Court precedent currently holds that unilateral secession is not Constitutional. Texas v. White, 1869, held that the rebelling states never left the Union and that the acts of rebellious legislatures were invalid.
February 16, 2010, 7:02 pmii says:
Gee, are you comparing America to an overbearing, heavy handed empire that was willing to march thousands to their graves so it could continue to consolidate its political power?
At any rate, I’m sure Jefferson, et al., would have been delighted to have averted the Revolutionary War with a bloodless and victorious lawsuit instead. If those means are available to states in this country, as opposed to a prolonged fight to the death just to realize independence which more domineering sovereigns have historically been prone to force secessionists to resort, then I can hardly see how it would be irrelevant. For a secessionist, nothing would be more relevant: It would mean the difference between wielding a suitcase or a sword.
February 16, 2010, 7:05 pmDeezRightWingNutz says:
This strikes me as niave. Was the American Revolution decided by the Delaration of Independence or by the Revolutionary War?
February 16, 2010, 7:08 pmDavid McCourt says:
U.Va. Grad,
So the territory-become-state wishes to rescind the agreement by which it became a state, but at the same to retain the benefit of that part of the agreement by which it was elevated to equal status with the other states?
February 16, 2010, 7:09 pmoledrunk says:
Seems that Scalia is innocent of the origins of the pledge. Socialist, unless I am mistaken.
February 16, 2010, 7:18 pmGatito says:
The Articles of Confederation (at 13) declared the union to be perpetual, and implicitly rejected any power on the part of states to secede. Having bound themselves to that, the same states then adopted the current constitution, which makes no mention of this point. But are we to suppose, from that set of events, that the states abolished the perpetuity of the union sub silentio when they ratified the constitution of 1787?
This is a real lawyers’ question, and I’m not one, but I think that at least one can say that it is not clear that they DID abolish it. Hence it is not clear that, as a legal matter, any state — or at least any of the original 13 — has that power.
February 16, 2010, 7:30 pmAnderson says:
You don’t have to be an expert in the field of secession law to have a belief. (In fact, I know of no one who is an expert.)
Daniel Farber’s Lincoln’s Constitution, blurbed by VC’s own Kenneth Anderson (or some other Kenneth Anderson?), is a good short treatment of secession, civil rights, etc.
Lincoln’s homely example from contract law, that the states were parties to a compact and could not unilaterally withdraw from it, is not bac.
February 16, 2010, 7:30 pmDangerMouse says:
This…
Wars do not settle questions. Wars suppress the issue but nothing is decided.
and this…
I’m sure Jefferson, et al., would have been delighted to have averted the Revolutionary War with a bloodless and victorious lawsuit instead.
..really doesn’t do lawyers any justice. Talk about a over-inflated sense of importance. What, is it so bad that a soldier is just as conseqential as a lawyer, in the scheme of things? That issues are “settled” by events outside of a courtroom?
If Earth were to be invaded and conquered by aliens tomorrow, there’d be some moron lawyer trying to file a complaint declaring it illegal with the UN Declaration of Human Rights, or something, as if paper-pushing lawyers had any consequence whatsoever.
Know your limits, people.
February 16, 2010, 7:33 pmpublic_defender says:
I can see there might be a theoretical “right” to succession, but Scalia is being a realist. He’s correct that there is no judicially enforceable “right” to succession. So the realist’s next question is how that might happen.
In reality, I’d think* that succession could only happen as a result of a constitutional amendment or a successful war. If you think you have the votes in Congress and the States for a constitutional amendment, it’s your tinfoil. If you want to start a war, remember what we call people who start unsuccessful wars of succession? “Traitors.”
But if you want put realism aside and debate the “legalities” of succession, be sure to consider how many angels must dance on the head of a pin before a succession attempt becomes lawful.
*I hedge this with “I think” because I haven’t put all that many brain cells into sorting through this issue.
February 16, 2010, 7:38 pmtroll_dc2 says:
Anderson, thank you. But here is a review that I found of Farber’s book, and it is not encouraging: http://74.125.93.132/search?q=cache:BnxDvJgdpu4J:www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/Farber104.htm+%22Lincoln%27s+Constitution%22&cd=6&hl=en&ct=clnk&gl=us
February 16, 2010, 7:39 pmChris Travers says:
Scalia’s response had me scratching my head.
1) If there was any Constitutional question settled by the civil war? I didn’t know we still held our legal standards to trial by combat. The pledge of allegiance? That’s a document of Constitutional law?
2) Scalia provides much more substantive views on whether the court could decide such a question (answer to that issue being “no”).
The only thing I can see here is that secession, and the possible attempt at reconquest, would both be unreviewable political questions to which there is no way the court would get involved.
Does that seem right?
February 16, 2010, 7:50 pmaeolius says:
DH Fischer in his seminal book “Albion’s Seed” traces four distinct cultural streams brought over from England in the 17th and 18th centuries. And major elements of each are still distinguishable.
February 16, 2010, 7:58 pmOne of these four,from the English/Scottish borderlands
went into the backlands of Appalachia the Ozarks. Fischer’s description of them in Britain and early America could have been written about the Teabaggers today. Their re-emergence today is perhaps a unexpected result of multi-culturalism.
Perhaps, rather then full secession we could consider a devolution in the manner of the UK
Chris Travers says:
There’s a more interesting side to this question:
Can Puerto Rico secede? After all it’s not a state.
February 16, 2010, 8:08 pmDavid McCourt says:
“If there was any Constitutional question settled by the civil war? I didn’t know we still held our legal standards to trial by combat.”
Chris Travers,
The independence of the thirteen colonies from Britian was settled on the battlefield by a war, or “ordeal by combat,” as you would have it. You didn’t think we litigated it, did you? Many, perhaps most, issues of great political and even constitutional import are settled on the battlefield, or by other political processes not involving a court.
Like it or not, the Civil War did settle the question of secession, far more emphatically and with greater finality than any court ruling of 1865 could have done.
February 16, 2010, 8:08 pmDukeDan says:
What about if rather than one state wanting to secede the other 49 wanted to kick them out?
February 16, 2010, 8:14 pmBrett Bellmore says:
In much the same way as we’ve always been at war with Eastasia, I expect.
Secession has much in common with regicide: If you try it, you’d best succeed. Legality has little to do with it, the rules of the game are not involved in whether you’re going to quit the game.
I’ll just say this: If any collection of states try to secede, they’d better leave with part of the nuclear arsenal.
February 16, 2010, 8:16 pmSkyler says:
It seems to me that the substantial and convincing part of his answer was not the throw away about the pledge (he was addressing a moviemaker, and that’s a legit way to put things in context), nor the point that the war settled the issue. The convincing part of his answer was standing.
Without standing, original jurisdiction doesn’t count for much.
So, who would have such standing? Would the other states be able to enjoin the seceding state? Would the Executive have standing? Who would be able to bring it to the court?
And if a state is seceding, why would they bother listen?
The answer is, that secession is a extra-legal action, by its very nature. Arguing about right to secede is moot. It’s like asking how many angels can dance on the head of a secessionist.
February 16, 2010, 8:17 pmMike McDougal says:
I can imagine scenarios in which a few states want to break off without waging war.
February 16, 2010, 8:18 pmMichael says:
Well done.
February 16, 2010, 8:21 pmOwen H. says:
Dude, they tried to resolve the issues through legal channels. That’s what the Continental Congress was doing for some time even after the first shots were fired. They wanted a negotiated settlement, if it could have been attained.
In any case, these constant references to the Revolution are stupid. There was no provision under British law for what they did. They knew that, and went ahead when it became clear that the law would not protect them from the ones administering the laws. Our Revolution may have been necessary and justified, but it was in no way legal under British law.
February 16, 2010, 8:24 pmBrett Bellmore says:
The question isn’t whether the states leaving want a war. It’s whether the states they leave behind will let them leave without a war. The only way I see that happening is if the states leaving are capable of effectively fighting a war, whether or not they want to. As I said above, they’d better take part of the nuclear arsenal when they go, a nuclear deterrent is about the only thing that would guarantee a peaceful parting.
February 16, 2010, 8:24 pmRandy says:
David: “Like it or not, the Civil War did settle the question of secession, far more emphatically and with greater finality than any court ruling of 1865 could have done.”
Realistically, one way or another, this is the ultimate answer. any state that wants to secede may vote on it, and it will be ignored by congress and the president. If they file a lawsuit, it will be thrown out of court.
It’s highly unlikely a landlocked state such as S. Dakota or Kentucky will even attempt to secede. To be surrounded completely a foreign country doesn’t strike me as a smart move. Only a coastal or border state will be able to even think about secession. But even they would have to form a citizen’s army. (will homos be allowed to serve? Seeing how they will need every man and woman for their quixotic adventure, I’m sure they won’t be asking and ignore anyone telling) I realize that’s a wet dream for certain types, but most rational types will laugh.
February 16, 2010, 8:30 pmMark Field says:
A good deal of the confusion on this issue, ISTM, arises from a confusion of terminology. To the secessionists in 1860-1, secession meant “a legal right to leave the union regardless of the consent of others”. It was distinguished from revolution, which is a natural right, not a legal one.
Some people seem to be arguing that “secession” means a departure in which everyone consents. That’s a new meaning; nothing wrong with that, but then we have to keep the terms clear.
A Justice might reasonably answer that secession (as the term was used in 1860) is unconstitutional, but that consented-to departure is an open question. Revolution, being a natural right, doesn’t present a legal issue at all.
But as Brett says, all of these are moot points unless you win. Nothing secedes like success.
February 16, 2010, 8:31 pmAnthony says:
This appears to fall under the same logic as a state seceding (the government can’t be sued unless it lets itself be sued), though in the particular case of Puerto Rico, if there was a solid majority for independence we’d probably let them go.
February 16, 2010, 8:35 pmShelbyC says:
My hat’s off to you sir.
February 16, 2010, 8:38 pmtexasfox82 says:
what we need is a real dinkum thinkum computer to plan this for us; of course, we’ll also need to be on the moon and be able to throw rocks at ‘em…
February 16, 2010, 8:39 pmPragmaticist says:
Imagine if the population of Hawaii was comprised overwhelmingly of people descended from native Hawaiians, and if they overwhelmingly voted in a referendum to secede from the Union. I can’t imagine the U.S. taking any military action against such a breakaway Hawaii. It would be so politically incorrect to fight against the indigenous people.
February 16, 2010, 8:53 pmohwilleke says:
Secession is as more of a regional issue than it is a partisan one. Even conservative, Northern Republicans generally don’t view this as a state’s right. Those who believe that secession is a state’s right are overwhelming whites from the South (overwhelmingly Republican, but Southern Democrats in the South are probably more prone to see secession as a state’s right than Northern Republicans or Democrats). Secession didn’t enter the Republican vocabulary until it started absorb the segregationist win of the Democratic party under the leadership of Richard Nixon.
The clear majority of U.S. Supreme Court justices are Yankees, including Justice Scalia, from whom we have an expression of an opinion. Roberts, Ginsberg and Sotomayor hail from New York State. Scalia and Alito are from New Jersey. Breyer and Kennedy are from Northern California (those Southerners who did move to California favored places like Orange County in Southern California). Stevens is from Illinois. None of these eight justices has ever even lived in the former Confederate South or in a border state, other the the Northern Virginia portion of the District of Columbia metropolitan area.
Justice Thomas is the only Southerner on the U.S. Supreme Court, hailing from Georgia and having practiced law for a while in Missouri, a border state. Despite the fact that he is frequently the most conservative justice on the court, his conservatism is not necessarily of the Southern white secessionist variety. As a Southerner, he might be the most likely to call secession a state’s right, but as a black man whose primary professional experience was in a border state rather than a former Confederate state, even the most prominent conservative black man from the South in the United States, his vote for that position is hardly a reliable one.
February 16, 2010, 8:57 pmrpt says:
I am surprised to see such criticism; I thought Scalia spoke ex cathedra to conservatives.
February 16, 2010, 9:13 pmjcm says:
Can Puerto Rico secede? After all it’s not a state.
February 16, 2010, 9:14 pmYes, they can, voting for it on the periodical referendum on the subject
ohwilleke says:
On this issue, I think that it is entirely plausible that the Pledge is a relevant source.
It’s indivisible language was an intentional direct reference to the Civil War. (Justices Scalia is also probably well aware that it was adopted on Columbus Day in 1892 and that the “under God” language was added at the behest of the Knights of Columbus, both of which are associated politically in the U.S. with Catholicism). It was proclaimed by a President, and reaffirmed by FDR when the civilian hand over heart salute accompanying it was adopted (the old one looked too much like the Nazi salute) and modified with “under God” language with the encouragement of President Truman and the official signature of President Eisenhower (famous for proving the limits of state’s right at Little Rock). The United States Congress officially recognized the Pledge as the official national pledge on June 22, 1942. It is frequently recited in the way of an invocation at almost every official U.S. military, civilian governmental and many non-governmental civic gatherings (e.g. the Freemasons). In times of crisis, the attitudes of the civic and military leadership of a country means a greate deal.
The Pledge is very much a part of the living law of the United States, particularly on issues as abstract and infrequently arising as secession. It is trumped by the First Amendment free expression right, but that doesn’t mean that it is a dead letter.
February 16, 2010, 9:14 pmMark N. says:
The part where Scalia suggests the Court wouldn’t have jurisdiction to hear the case because the U.S. federal government is immune to suit by states seems odd, though I am not much of an expert on how sovereign immunity interacts with original jurisdiction.
As precedent, though, there were a number of post-Civil-War suits by southern states against the U.S. federal government, complaining of various aspects of Reconstruction, and according to this book (pp. 406-409), the Court accepted that it had original jurisdiction over those suits, rejecting the federal government’s objections on that point. The Court did decline to adjudicate most of them, holding that they were political questions, but the political-question doctrine is different from sovereign immunity.
February 16, 2010, 9:34 pmAndy McGill says:
The cutting edge on succession is in historical semi-territories, such as Puerto Rico and the Pacific islands. I don’t think any state was granted statehood when a majority of the citizens didn’t want it. Succession is an interesting academic question that helps us define what a democracy should be. If there was a state where a super-majority wanted to succeed, peacefully, over a long period of time, then it would be interesting to see how a democracy would react.
February 16, 2010, 9:34 pmRepeal 16-17 says:
Exactly. Whether a State attempts to secede is not affected by what the Supreme Court thinks. To think a State attempting to secede from the Union would be a matter for the Supreme Court is like thinking the Civil War was decided by Texas v. White.
February 16, 2010, 9:38 pmhieronymous says:
Considering the horrific loss of life expended over the question of secession during the Civil War, I find it rather distasteful for anyone to believe it has not been settled. Indeed, for the vast majority of the volunteers in National Army (up until conscription began in 1863), the reason they enlisted and fought was not to end slavery or to seek adventure, but to uphold the Constitution. They clearly believed that secession was unconstitutional. I direct those who believe otherwise to James McPherson’s masterly “For Cause and Comrades: Why Men Fought in the Civil War.” I find it inconceivable that the current generation could ever fight for such an abstract ideal – individuals, of course, but not on such a scale as then. These men were clearly of the same mind as Lincoln, who pointed to the Declaration of Independence as the moment the Union was formed, likening the document to an “apple of gold.” The President stated that, “The Union, and the Constitution, are the picture of silver, subsequently framed around [the Declaration]. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture.”
Yes, one could argue Lincoln was making a rhetorical or a political argument, but at the core he made a legal argument. While no court has backed up his notion, the scores of Union dead strewn across the eastern half of this nation did. They quite definitively settled the issue of secession. For those who snidely disregard Justice Scalia’s mention of the Pledge of Allegiance, I remind them that the Declaration of Independence isn’t part of the Constitution either. Yet Justice Thomas, undoubtedly the most conservative justice in the past 60 years, repeatedly refers to the Declaration in his Con Law opinions. I have no doubt Thomas would be of the same mind as Scalia on this issue. Lest we forget, indeed . . .
February 16, 2010, 9:39 pmEdward A. Hoffman says:
The real question is whether Scalia will recuse himself if a secession case somehow comes before the Court. My guess is that he would. But he might decide to quack like a duck instead.
February 16, 2010, 9:44 pmOren says:
How can we have a thread winner this soon?
Just a quibble, but I bet that if:
(1) A State legislature petitions Congress to secede (or perhaps conducts a referendum).
(2) Both Houses of Congress pass a regular bill (similar to the bills admitting new States into the Union) accepting the secession.
(3) The President signs this bill.
(4) The issue finds its way to the Supreme Court free from procedural defects (there are a dozen ways this could happen, it’s just a matter of who gets there first).
I think the result would be the Court ducking the political question and letting the concurrent act of Congress, the President and the State legislature stand.
February 16, 2010, 9:52 pmii says:
I think this misses the point, because it assumes that a state’s resolve to secede, come hell or high water; legal or illegal, precludes other considerations, such as whether or not the secession will open a Pandora’s box of civil unrest, or if it could actually be accomplished peaceably. If a state were ready to secede (state legislature passed a bill, the executive signed it, the state judiciary reviewed and upheld the law, the people of the state overwhelmingly wanted to secede, the state has compensated, ceded, or whatever it needs to do with all federal property within its territory, etc.) but the federal government stood in its way, the Supreme Court could, theoretically, come to the state’s rescue, without having things devolve into a violent conflict. In short, if there is a “right to secession” under the Constitution (or, I think, to put it better: If the federal government does not always have the power to prevent secession) then it matters, because a state absolutely committed to secession might be able to avert bloodshed or some sort of martial law or other federal intervention.
As a side note, I find the insistence that states not secede from America to be most bizarre. I’m not for secession, but, really, what on earth would I care if Montana wanted to secede? How could that possibly affect my life in any meaningful way? All I know is, I’d rather see a state secede peaceably, if that is what its citizens really want, than to witness the federal government march in there and unleash a parade of terribles just to make a point.
February 16, 2010, 9:53 pmScott Forster says:
All the picking of nits on this thread seem to ignore the fact that Justice Scalia writing this letter in the first place is abundantly cool.
February 16, 2010, 9:53 pmButternut says:
Nino is such a hoot. What a sick sense of humor, your honor…
He is toying with you all.
February 16, 2010, 9:53 pmRandy says:
“he Pledge is very much a part of the living law of the United States.”
Really? Then name one case that relies upon the Pledge for any reason.
“Yet Justice Thomas, undoubtedly the most conservative justice in the past 60 years, repeatedly refers to the Declaration in his Con Law opinions.”
So what? Justice Thomas can site his daughter’s mutterings if he likes. It may be tradition, but it isn’t law. Unless you can cite a source that shows that any legislature, including the congress, has adopted the Pledge as law, your argument fails.
Not only that, but the “pledge as law” theory doesn’t even pass the laugh test. The pledge is made by individuals, and it isn’t even required for any individual recite it.
February 16, 2010, 9:58 pmRepeal 16-17 says:
The key word in that sentence is “theoretically”. How likely would the Supreme Court, assuming it ruled on the merits, do anything short of reaffirming Texas v. White?
February 16, 2010, 10:00 pmRandy says:
” For those who snidely disregard Justice Scalia’s mention of the Pledge of Allegiance, I remind them that the Declaration of Independence isn’t part of the Constitution either.”
So SCOTUS could have struck down the sodomy laws in Lawrence v. Texas just by citing my right to the “pursuit of happiness?”
February 16, 2010, 10:02 pmloki13 says:
One area of analysis that I have yet to see in these secession threads in this-
The United States was founded upon the notion of dual sovereignty. In other words, every person had allegiance to two sovereigns- their state, and the Federal Government. The Federal Government (the United States) did not derive its power from the states a la the Articles of Confederacy, but, rather, from the people themselves. This is why the Constitution was ratified not by the state legislatures, but by ratifying conventions within each state. This is seen clearly in the preamble-
“We, the People of the United States… do ordain and establish this Constitution for the United States of America.” Note that it is not, “The states of the United States….”
To me, this has profound implications on the concept of legal secession. There is no *right* for states to legally secede from the Union, as the Union is not simply a compact of the states as the Articles of Confederacy were. Instead, the United States is a sovereign entity deriving its power from the people. States have no ability to abrogate that bond. They simply don’t enter into the equation.
This only deals with the legal right of secession under the Constitution. Were there an amendment, following the procedures a outlined, that allowed a state to leave, that would be different. In addition, were there a war or revolution, well, then words on a paper no longer matter. But in terms of a legal right to secede?
1. There is none.
February 16, 2010, 10:02 pm2. The argument is not just fringey, it’s silly.
EvilDave says:
Some people are just more concerned about their burning hatred of Justice Scalia
February 16, 2010, 10:13 pmJay says:
Perhaps this was all a scheme so that when the author of the letters to the justices takes over a state and secedes, the SC will be unable to stop him, having all written him letters expressing their opinions in advance.
February 16, 2010, 10:14 pmii says:
Well, yeah, I think this much is obvious. The Court would reaffirm Texas v. White, if they even heard such a case at all. It’s more likely that they’d duck behind the political question doctrine. But, this is a blog run by law professors, and their world of inapplicable theory sucks me in sometimes.
February 16, 2010, 10:15 pmEMB says:
^Win.
In all seriousness though, I think complaints about the reference to the pledge of allegiance are hardly “nit-picking”, especially when this is coming from Scalia (who for instance apparently has strong opinions about the “Under God” controversy).
In any case though, it’s certainly pretty nifty that he replied to the letter.
February 16, 2010, 10:17 pmSkyler says:
I think another important point being glossed over is that we now have a United Nations, and this did not exist in 1861.
The UN and the subsequent development of international law tends to support self-determination, most prominently among former colonial states. One of the reason there are so many states in Africa is because the UN has been encouraging every ethnic group to break away from western imposed borders. The UN is only persuasive, not authoritative on this, and in the end political power tends to over ride any preference by the UN and NGO’s, but there is an influence of sorts.
What the UN and international law would say about an attempted secession is not a moot point. Other nations would give support or withhold support depending on how it would be perceived by other nations and the UN.
I think being the primary military power in the world, that an attempt at secession would bring collusion with the seceding state from a number of nations wishing to help reduce our power, and thus intensify the counter reaction from the federal government.
Those who have posited that a seceding Hawaii or any other state would be allowed to leave peacefully are ignoring that the federal government will not allow such a reduction in its perceived status in the world. It will be stopped at any cost.
February 16, 2010, 10:21 pmEvilDave says:
As anyone who took Con Law II knows the SCOTUS can do anything for any reason, no reason, or an obviously intellectually dishonest reason.
“They are not final because they are infallible; they are infallible because they are final.”
Of course theoretically Congress could impeach the Justices after a particular odious ruling, but this has been used … ? never? certainly less than the Queen removing a Prime Minster from office in the last 230+ years.
February 16, 2010, 10:23 pmWe don’t even have Canada’s Notwithstanding clause.
For all the talk of checks and balances there is very little practical check on the power of the Judiciary.
Oren says:
But the political question doctrine could cut either way depending on the political wind.
If the President and Congress accept the secession (or whatever you want to call it when it’s bloodles, divorce maybe?) and withdraw the apparatus of the United States government from the territory, the political question doctrine would likely prevent the Court from ordering them not to do.
February 16, 2010, 10:25 pmOren says:
Except of course that the Justices are themselves chosen by the President. Details, details….
February 16, 2010, 10:28 pmWilliam Wallace says:
I’m willing to bet that if someone in the American Colonies wrote to someone in the British Parliament and asked if there was a right to secede, the answer would also have been a “No.”
The right of secession doesn’t flow from any political document. It comes from Natural Law. That’s exactly where the Framers appealed when they wrote:
“Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. 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.”
February 16, 2010, 10:32 pmSkyler says:
Which predident was it that said something along the lines of, ‘the court has had its say, now let them enforce it.’ The supreme court’s opinion may be final, but they have been ignored a few times.
February 16, 2010, 10:33 pmEvilDave says:
I didn’t say there was no power, just little power.
You could also argue that until they are seated they aren’t on the Judiciary. But this line of argument (for or against) is mostly only good for points on an exam.
February 16, 2010, 10:33 pmii says:
Would this mean that it would be left to the D.C. Circuit to review this and hold it unconstitutional because an odious ruling is not a deviation from “good behavior”?
Tangentially related, how come we never hear talk about how it would not be legal to unilaterally withdraw from the United Nations? After all, the U.N. Charter does not have a member state withdrawal provision. Wouldn’t withdrawal from the U.N. be a type of secession, loosely conceived anyway?
February 16, 2010, 10:35 pmarthur says:
Scalia’s argument that no one would have standing is ridiculous. There are many routes to the Supreme Court, some of which would have the Solicitor General seeking cert. E.g. a citizen of Miane would stop paying federal taxes. The United States would not recognize the secession and enforce a tax obligation, or charge criminal tax evasion. The dispute starts in federal court and whichever side loses would petition for cert.
February 16, 2010, 10:38 pmSkyler says:
Membership in the UN is by treaty. We have the power to unratify treaties, but the UN might not agree with that power. Notice that the UN does not require membership to take military action against a nation. Kind of makes me nervous just thinking along those lines . . .
February 16, 2010, 10:38 pmthat's what she says:
Ironic how Scalia mentioned exactly what I have been reading about in my pre-law coursework: there would be no “case in controversy” as the United States would not be a party to such a suit.
Thank you Justice Scalia for keeping things interesting.
February 16, 2010, 10:39 pmWilliam Wallace says:
I’m sure that the British Crown thought the issue of secession was settled as well. That didn’t work out too well for them.
I find your comment quite ironic given the fact that you pointed out that the Colonies actually seceded from England. If a State were ever to take the same course, the action would hardly be “settled.” It would result in either acquiescence or in an attempt to impose will by military force. The latter would hardly be settled until the fighting stopped.
I suspect that the former would most likely be the option in modern times. If things were to deteriorate to the point where a State or group of States wanted to secede, those who voted to secede would likely be far more determined and willing to die for their cause than the majority of the population in the other States. Most simply do not have the stomach for all out war in Modern Times.
February 16, 2010, 10:39 pmCato The Elder says:
How can there be any sort of Law if the legitimacy of Sovereign enforcing it is in dispute? I’m probably misinformed, but the two are inextricably intertwined, are they not? At least I’ve read statements to that effect before in the comments, I guess took it to be a bedrock of legal philosophy. If so, isn’t the question simply ill-posed? By the way, it’s kind of weird to me that the same people that argue that corporations and market are contractual social artifices don’t believe the same about legal rights and traditions — the topic frequently comes up when discussing “human rights” in more ancient & barbarous times.
February 16, 2010, 10:40 pmSkyler says:
Good point, Arthur. There are plenty of people in Maine, were it to secede, that also have property in other nonseceding states. Even were there to be a nonviolent secession, the feds could still levy property and bank accounts of citizens of Maine. With modern financial systems, it would be virtually impossible to shield a state’s citizens from this type of levy for unpaid federal taxes.
I think Texas is in the best situation of the continental states for this. They try hard to keep themselves out of being entangled with other states (separate and isolated power grid, for instance), but money would still be a tremendous hurdle for individuals.
February 16, 2010, 10:43 pmShelbyC says:
Andrew Jackson
February 16, 2010, 10:52 pmEvilDave says:
True, although that wouldn’t be a very legal check, would it?
In fact, it would be slightly more legal if the President had the disagreeing Justices shot in the head. After all, they only serve for life.
A possible and more legal check would be FDR’s court packing scheme.
February 16, 2010, 10:58 pmMark Field says:
Calhoun’s answer to this was that conventions of the people in each state could undo what they’d done in ratifying the Constitution in the first place. That’s why all the seceding states called conventions rather than having their legislatures pass resolutions.
IMO, this argument suffers from a number of flaws, but it was an attempt to get around your point.
As I said above, it’s REALLY important to keep the terminology straight. The colonies did not “secede”. They revolted. Those are 2 very different things. Jefferson et al. never claimed a legal right to revolt because it’s not one, it’s a natural right. The South never claimed they were revolting, they claimed that secession was legal.
February 16, 2010, 10:59 pmShelbyC says:
Or stripping SCOTUS of jurisdiction to deal with the issue at hand.
February 16, 2010, 11:01 pmDavid McCourt says:
William Wallace,
You deny the question has been settled by posing what amounts to a sci-fi hypothetical, that some “states wanted to secede, [and] those who voted to secede [were] far more determined and willing to die for their cause.” This imagined pit bull is then set against today’s supposed toy poodle: those in favor of union would acquiesce because they “simply do not have the stomach for all out war.” Anyone can play this game — to what end? — and conjur up imaginary circumstances where anything is possible: North Korean revolutionary opera making a hit in Branson, Missouri; stormtroopers goosestepping down Central Park West.
The question of secession is settled precisely because, after Appomattox, the idea is about as plausible as these other sci-fi scenarios.
February 16, 2010, 11:18 pmEli Rabett says:
More interesting, which state gets tossed first.
February 16, 2010, 11:19 pmSkyler says:
No, I disagree. The checks and balances purposely do not allow the court to enforce its decisions. Enforcement comes from the executive branch. The executive branch may indeed ignore the supreme court’s decisions, but that brings the legislative branch’s power (along with the chief justice) to impeach and convict the president for high crimes and misdemeanors.
If the supreme court were to rule that it is unconstitutional to own money or read books, we don’t need a constitutional amendment for the executive branch and the legislative branch to ignore that ruling. The executive could simply refuse to enforce that ruling and if the legislature doesn’t act, then it is all legal. Hopefully, they would impeach some judges instead, but they are not obliged to enforce the law until amending the Constitution or impeaching the justices.
This is the ultimate check on the supreme court and this is why the court is very careful to not exceed its bounds. This is why Marbury v. Madison was decided the way it was, by denying relief but still claiming the power to decide constitutionality. It is why the court is very careful to avoid deciding political questions because if it decides political matters it will be ignored and thus lose its credibility.
February 16, 2010, 11:28 pmRandy says:
“”ne of the reason there are so many states in Africa is because the UN has been encouraging every ethnic group to break away from western imposed borders.”
Which state has a strong ethnic group that would want to secede?
Frankly, any state that wants to secede, I say let’em. I’d love for Alaska to leave, since it means more money for us. They’ll come screaming back once their pork runs stop. Texas? Leave — that way we don’t have to have all the other school textbooks held hostage to their creationist ways of thinking.
February 16, 2010, 11:35 pmDavid Nieporent says:
Thought about that, but Article V says that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Expelling a state would presumably lead to it being denied its suffrage in the senate, without its consent.
February 16, 2010, 11:39 pmpublic_defender says:
Back to Kerr’s point. It was really “cool” of Scalia to respond. I wouldn’t want a bench of nine Scalia’s, but one certainly makes the Court more interesting.
February 16, 2010, 11:41 pmChris Travers says:
So if Puerto Rico can secede, why not Texas?
I guess what I am getting at is it is one thing to suggest that secession wouldn’t be legal. It would be another thing to suggest that the war to reconquer such territories would not be legal.
What I hear Scalia saying is that both are unreviewable from the Court’s perspective.
February 16, 2010, 11:46 pmyankee says:
Tomayto, tomahto. It’s all angels on pinheads to me.
February 16, 2010, 11:47 pmD.R.M. says:
The Articles of Confederation were clear; the Union was perpetual. The states thus did not have the right or power to secede at the time of the adoption of the Constitution. How, then, could they possibly retain what they did not have? As a result, even if the first thirteen states could withdraw from the compact that is the U.S. Constitution, they would be stuck without the authority to engage in diplomacy or form compacts with each other or foreign states, those powers perpetually surrendered to the Union of the Articles.
Accordingly, at least the states of Virginia, North Carolina, South Carolina, and Georgia were still parts of the perpetual union in 1861, forbidden to enter into compacts with each other or with any foreign states. Joining the Confederacy was accordingly an illegal act by those states. (Joining a Confederacy with those states was then an act of war on the perpetual Union by any states that had managed to lawfully secede from the Union.)
On the other hand, Texas deliberately and intentionally retained the right to secede in its treaty of annexation. It could make a case that it would retain that unsurrendered power under the 10th Amendment. If it had not made war on the United States by joining the Confederacy, it would have had an excellent argument for resuming its status as an independent republic.
The remaining states that seceded did not exist as such until created by the Federal Government. Among them they fall into two categories. Tennessee, Alabama, and Mississippi were created from territory that belonged to Articles states, while Florida, Louisiana, and Arkansas were created from land that was never previously part of any state. Their claims fall somewhere between those of Texas and the Articles states. On the precedent of the Declaration of Independence, the latter three can claim a right to secession, the Colonies having been created wholesale as subsidiary governments on land that was never voluntarily bound in a perpetual union with England. The former three have a weaker case, having been created as part of the United States from what was the territory of perpetual members of the United States.
Consequently, we can divide the U.S. states into five classes of rights to secede. The Thirteen Original Colonies have the absolute weakest claims, having voluntarily joined in an explicitly perpetual union. The second-weakest are those of states created from territory ceded to the United States by those thirteen (all states east of the Mississippi except Florida). The middling claims are in those states that were never independent entities but never part of the perpetual union of the Articles. The second-strongest claim to a right to secede would be from Hawaii, which was an independent kingdom and republic before joining the United States, and never disavowed the right to secede, but which did not join as a state. Finally, the strongest claim would be that of Texas, which moved directly from independent to United state, and did so with an effort to explicitly reserve the right to secede.
February 16, 2010, 11:55 pmCharlie says:
Maybe I am crazy, but isn’t the case or controversy issue easy for a screenwriter to come up with? Maine secedes from the Union. The federal government tries to enforce any federal law in Maine, or a Maine citizen gets sued in federal court on the basis of diversity jurisdiction.
The Maine citizen claims that the federal court does not jurisdiction over the claim, because they are no longer bound by the U.S. Constitution as they have legally and constitutionally seceded from the Union.
What’s the issue with that?
February 16, 2010, 11:55 pmarch1 says:
1) Why has no one mentioned:
which would seem to be fairly relevant?
2) Re: Scalia’s “…the United States cannot be sued without its consent” – can someone help me better understand the rules around this, and their rationale?
February 16, 2010, 11:59 pmEdward A. Hoffman says:
According to the Texas State Library, that’s just a myth.
February 17, 2010, 12:01 amA. Zarkov says:
The Third Punic War sure decided the dispute between Rome and Carthage. After that Carthage was no more. The Battle of Watling Street sure decided it for Queen Boudica and the Iceni and determined who was going to rule Britain for the next 400 years. WWII decided the future of National Socialism and put an end to militarism in Japan. WWII decided the fate of Europe for the next 40 years. Wars can decide a lot if you fight them to win.
February 17, 2010, 12:24 amSkyler says:
This just cries out for a quote from Heinlein.
February 17, 2010, 12:37 amA. Zarkov says:
Ultimately the question of secession will be settled on the battlefield if it comes to that. Who is willing to fight and how hard decides the question, not lawyers arguing in the Supreme Court. Let’s hope we never have to face this question again. While wars can certainly decide disputes, they almost always turn out to be far more horrible than anyone thought going in. Now days there are very few WWII soldiers left to talk to. I have had the good fortunate to know some of wonderful men who fought it. Lesson learned: stay out of war if at all possible.
February 17, 2010, 12:40 amMJSamuelson says:
I don’t believe that secession is a legal right – but then, neither is revolution. In reality, if a state (or whatever) wanted to secede from the Union, there is not a thing any court in the land would be able to say about it. And the only way the secession question was settled, or even handled, in the 1860s? War. Lincoln couldn’t make the Confederate states come back into the Union, he had to have war, and he knew it.
February 17, 2010, 12:50 amRicardo says:
Puerto Rico is legally “unincorporated territory.” Nowadays, people who are born in Puerto Rico and reside there are considered U.S. citizens with full Constitutional rights but under the Insular Cases that was not always the case. Puerto Ricans have citizenship rights under federal law, not under the Constitution. Since the territory is treated differently under the law and the relationship between Puerto Ricans and the federal government is different from that of other Americans, a different approach to secession is justified.
February 17, 2010, 12:57 amD.R.M. says:
Because that text is useless for adjudicating the question as a legal matter. Who decides when the criteria of destructiveness is met? Through what forms is this right exercised?
February 17, 2010, 1:11 amRicardo says:
“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
“…[T]he members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution”
In addition to loki13′s point about the United States being formed by the people rather than by the several states, the Constitution states plainly that the legislatures of the several states are “bound by oath” to support the Constitution and that the Constitution and the laws and treaties of the United States are the “supreme law of the land.”
An ordinance of secession, like the ones passed by the Southern states before the Civil War, are acts of state legislatures declaring that the government officials and citizens of the state are no longer bound by what the Constitution describes as the “supreme law of the land.” The acts of secession were illegal under the plain text of the Constitution.
A state probably could secede with the consent of Congress and possibly the consent of the President as well. It would at the very least become a political question that courts would avoid. But without the consent of the federal government, secession is pretty clearly illegal.
February 17, 2010, 1:16 amDan Lavatan says:
The US has already given up soverigenty of various minor outlying islands and there is no reason to think the court would rule against succession given the support of congress.
A related issue is that even having given up territory the inhabitants therof would remain US citizens. Under such a circumstance, the US would probably need a more sensible way for individuals to renounce citizenship.
In practice, non-mutual succession would probably result in thermonuclear warfare.
February 17, 2010, 1:54 amNoah David Simon says:
interesting point about who would be sued. not sure I guy the line about the pledge Scalia
February 17, 2010, 2:10 amrpt says:
Take Texas…please. Send all of the military bases and federal revenue back.
February 17, 2010, 2:14 amRicardo says:
Yes, I think that’s the legal distinction between incorporated and unincorporated territory. People born in unincorporated territory only have citizenship under federal law and the people of American Somoa don’t even have citizenship — they have U.S. “nationality” instead so cannot hold certain federal offices without becoming naturalized citizens. I know that Filipinos lost their U.S. nationality when that country became independent — maybe if they held full-blown citizenship the situation would have been different.
But the difficult case would be if incorporated territory ever successfully seceded from the U.S. or was otherwise ever given up by the U.S. Because the residents of that area would acquire citizenship under the 14th Amendment, they have a stronger claim to continue to be considered U.S. citizens. On the other hand, those who took an active part in any rebellion could be held to have engaged in an expatriating act just as the Confederates were held to have done.
February 17, 2010, 2:24 amManju says:
i can’t believe scalia’s saying this. my dad always told me that in america, if you study and work hard, you will be allowed to secede.
February 17, 2010, 2:34 amleo marvin says:
You seem to assume the contractual analog to secession would be rescission ab initio. Assuming the secession was otherwise found legal (which I strongly doubt), I think it would more likely be treated like a prospective termination, the seceding state and the U.S.A. retaining lots of rights and obligations that survive the secession.
Consider it in a different context. Assume company “A” simultaneously spins off and enters into contracts with company “B”, and 40 or 50 years later “B” legally terminates the contracts. Does that turn “B” back into a subsidiary of “A”? Pretty unlikely. So is the idea that some states are more sovereign than others, and that would be the implication of the US having retained contingent possessory rights over territories that became states.
February 17, 2010, 2:46 amRicardo says:
On the citizenship of residents of former territories, this did apparently become an issue when the U.S. ceded control of Rio Rico when the course of the Rio Grande was illegally changed by an irrigation company. Rio Rico was unambiguously part of Texas but the U.S. decided keeping control of it was silly and so ceded it to Mexico under a treaty. People born in the town sued to keep their U.S. citizenship and the federal government allowed them to without the case going to court.
So the question of whether birthright American citizens can lose their citizenship due to the U.S. renouncing claims of territory has apparently never been tested.
February 17, 2010, 3:13 amohwilleke says:
Not necessarily. Secession requires something close to consensus within the ruling class of the departing area. This requires the idea to be legitimated in their eyes. Authoritative dismissal of an idea by a source like the U.S. Supreme Court, which any departing state has complied with rulings from hundreds of times without fail, affirmatively changes how people view the legitimacy of a legal idea. It took decades of rhetoric and ferment to build the consensus that secession was legitimate in 1861, and that was in the face of considerable indecision about issues like slavery, even from opponents, like Lincoln himself.
Nipped in the bud with clarity, by a U.S. Supreme Court decision, or by something else dramatic, like the public humiliation of a secessionist advocate in the mass media that discredits the idea, the meme is dies and returns to the realm of insane crackpots not to be taken seriously again for centuries or more.
There are lots of people who would entertain the idea of secession in the South if the idea were given legitimacy. For example, if the U.S. Supreme Court were to hint in dicta that this was a legitimate right of a state. But, there are far fewer who are willing to make a direct assault on the legitimacy of the government and laws of the United States of America directly in order to secure secession. Bending the rules (a la “tax motivated planning”) is one thing; breaking the rules (a la open defiance of tax laws) is another.
It is notable that even hard core advocates of the notion that states have a right to leave the United States unilaterally, no longer argue seriously that states have a right to selectively disregard federal law while remaining in the United States, a common argument prior to the Civil War that really didn’t die until Little Rock.
There have been many divisions of sovereign nations since World War II, but a very large share of them have been either with what amounts to mutual consent (Germany, Korea, the USSR, most of Yugoslavia) or with outright legal process and approval (decolonization, Pakistan, Czechoslovakia, Eritrea (at the end of a long civil war), and coming soon South Sudan). Israel and Pakistan are probably the closest thing the post-World War II world has seen to successful unilateral secession movements and that cases of state formation spawned produced bloody wars and both nations have trouble with legitimacy among some people within the borders they control even now. Kosovo, Kurdistan, Taiwan and Western Sahara are good examples of cases where even almost fully de facto independent nations have been willing to accept indefinite delay of their secessionist aspirations in order to secure the blessings of legitimacy. Even in countries cobbled together without a whole lot of rhyme or reason in recent history like Nigeria, the instinct to secede without legal approval has ultimately failed with more people taking the unity side in civil war than took the division side.
In Quebec, a formal Canadian Supreme Court decision setting forth a not impossible set of hoops it had to go through to separate itself legally from Canada (approval in Quebec and from the Canadian parliament) deflated the secessionist movement that had previous set its own bar a bit lower, claiming a right to unilateral secession. Most people in the Quebec secessionist movement decided that settling for automony or going through legal channels under the Canadian Supreme Court’s terms set forth in a definitive way was a better course of action than outright rebellion.
The key point is that the current secession advocates do not dispute the legitimacy of the United States of America’s regime. They merely assert that states have a disputed right within that regime that has not recently been adjudicated.
February 17, 2010, 3:37 amohwilleke says:
A more recent case involves the spin off of the Phillipines from the United States. The law is muddy, as it involves distinctions between concepts like U.S. Nationality and U.S. Citizenship.
February 17, 2010, 3:42 amAnthony says:
I think that the Civil War did establish the principle that the US has the right to use force to prevent states from seceding. That, in turn, implies that secession is not a (legal) right, though it might be a ‘right’ in some other understanding of the word.
February 17, 2010, 3:46 amRicardo says:
Ah, but the Rio Rico case is from the 1970s. As far as I know, Filipinos only ever possessed U.S. nationality rather than citizenship (except, of course, for the ones who moved to the mainland and naturalized) and so lost that nationality status when the country became independent.
February 17, 2010, 4:05 amii says:
All of this talk about the Union being “perpetual” and the Constitution being adopted by the people rather than the states strikes me as just as circular as it was when it was announced by the Court in Texas v. White.
Consider the “people, not the states” point. If we accept that rationale, then it’s the people who would have the right to secede. But what would they be seceding with? Their cars? No, their states. And they would likely voluntarily entrust the formalities of that endeavor to their state legislatures. If the response to this is that the use of the word “people” is meant to exclusively mean the people of all of the states, I’d ask for evidence of THAT. Because it wasn’t as if the Constitution was adopted in some interstate plebiscite, rather, it was ratified by the individual state conventions — the “people” acted pursuant to their state citizenship and not beyond that concept. So, what is solved by announcing that it is the “people, not the states” that ratified the Constitution?
As for the perpetuity of the Union, if you think the Union is perpetual, then stand by your guns. It would seem that perpetuity is an all or nothing kind of thing. That means, once you’re in, there’s absolutely no getting out, under any circumstances short of revolt. Congress and the Executive cannot “okay” a secession, then. And if they tried, the Supreme Court would, under the theory of a perpetual Union, be obliged to tell the other two branches no. I have strong doubts that many here would be able to stomach that. Besides, even Texas v. White, if you read the opinion closely, allows for a consensual secession. Maybe dicta, but still precedential, sort of. So how can a Union be truly perpetual if there are exceptions, and why can’t non-consensual secession be one of the exceptions?
I am also puzzled by all of this talk about the compact that the Constitution created, as if compacts are one way streets. What if, say, Heller were overruled, and a national gun ban were imposed. Would Montana be in its rights to declare that the compact has been broken (because although it consented to the Art. III judicial review power when it entered the Union, it also only entered with the understanding that the Second Amendment would preclude an absolute federal firearms prohibition, too) and subsequently secede from the Union? I don’t see why not, if we’re using the compact theory — the compact that Montana entered into was broken, after all.
February 17, 2010, 4:36 amPeter Gerdes says:
I’d like to point out that Scalia’s response is vague as to whether the “resolution” in question is a matter of practical political significance or of legal significance. I mean one can resolve a constitutional question in direct conflict with the underlying text.
Moreover, it’s also not clear whether merely resolving the question should be understood to to somehow block future resolutions in the opposite direction.
February 17, 2010, 4:44 amRicardo says:
The Constitution deprives states of many of the powers they previously held. This clearly leads to the idea that the Constitution rejects the idea that the people exercise political power primarily through their state legislatures. Certain internal state laws like bills of attainder and ex post facto laws were inherently illegitimate even if they had popular support and didn’t concern the citizens of other states. Moreover, the Constitutional procedure for admitting new states makes clear that a new state can only be created within the territory of an existing state by the consent of Congress:
“[N]o 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 People of the United States exercise political power through the executive and legislative branches of the federal government in relation to all powers explicitly granted to the United States. For all other powers that don’t violate the U.S. Constitution or the treaties or laws of the United States (the “supreme law of the land”), those can be exercised by the state governments.
It’s not one or the other. State governments and the federal government share sovereignty but when there is any conflict, the federal government wins out. The United States government is a creation of the people according to the Constitution and can only be dissolved by the people: not the people of any given state but the whole of the people acting through both Congress and the state legislatures. The Constitution even provides for the calling of a Constitutional Convention that could, theoretically, scrap the whole Constitution and start from scratch. If you want a right to revolution, it’s right there. It cannot be exercised by any individual state acting unilaterally, though.
February 17, 2010, 5:03 amDavid Nieporent says:
Montana didn’t “consent to” anything or not consent to it. The 13 original colonies did, and arguably Vermont, but Montana was part of the U.S. without any action on Montana’s part. Montana didn’t agree to join the union on the condition that the second amendment was enforced/enforceable. Congress made Montana a state.
February 17, 2010, 7:16 amXenocles says:
I think even Colonel DuBois would agree that violence only settles each specific instance. If I have something of value and I fight off your attempt to take it, the issue of possession seems settled. But even if I kill you during the fight someone else can gather more power than you had and try again. More might not even be necessary; perhaps I have gotten weaker or lost my resolve. Likewise, there’s no guarantee that members of today’s military would even be willing to kill their former countrymen or that their civilian masters would order a resistance to secession.
February 17, 2010, 7:57 amAnderson says:
Troll, if you’re still here, I wouldn’t let that review of Farber’s book scare you off. As I said, it’s a short book, so doesn’t cover every conceivable nuance.
And the reviewer criticizes it for being something it’s not, a purely historical work; Farber, like the commenters here, is interested not just in whether secession (say) was justifiable at the time, tho he does go into that, but also in what later developments suggest about the legality of secession. So for instance he considers Canadian jurisprudence on Quebecois secession efforts, and then considers the South’s claims in that light as well. Lincoln’s use of executive powers is considered under Jackson’s Youngstown analysis.
And so on, though with more attention to contemporary analysis than the reviewer lets on. His sneers at Farber for looking at Buchanan’s statements are just silly — Farber’s point is that even Buchanan thought secession was illegal.
February 17, 2010, 7:59 amLeroy says:
The comments against the Pledge of Allegiance are spot on. The Pledge was written by a socialist in the nationalism movement to promote socialism and a government takeover of education. The early pledge used a stiff-armed salute that was the origin of the salute of the National Socialist German Workers Party. See the work of the symbologist Dr. Rex Curry.
February 17, 2010, 8:12 amXenocles says:
That’s not how my Constitution reads:
The Feds can make any law they please but if it relies on a non-enumerated power and results in a conflict with a state law, the state wins. At least it should…
Back to the matter at hand, since the Constitution is silent on the matter of a state, through its duly constituted government, choosing to dissolve its bond to the Union, it seems clear to me that each state retains that power.
February 17, 2010, 8:14 amStephen Lathrop says:
Better not be. If it is, you’ve got a problem for the Constitution. With the Pledge you get an oath of fealty to the flag and the state, no matter what they do. It’s blind loyalty, or maybe a profession of faith. Not an ounce of principle in it. If someone running the state decides the Constitution is a quaint artifact that’s getting in the way of more streamlined governance, the Pledge supports that. If we must have a public oath, and I wish we didn’t, then a pledge of loyalty to the Constitution seems far more appropriate.
A personal note: Like a lot of people I learned the Pledge in first grade. In the classroom, we had a flag on wooden pole, about 4-feet tall. The pole was stuck in a hole in a big block of wood on the floor, right in front of the teacher’s desk.
I wanted to understand the pledge, but no one bothered to explain it. I was on my own. “Allegiance” was a bit of stumbling block, but I got it from context. “…the flag” was obvious; there it was. “one nation indivisible” clearly meant you couldn’t divide it up, although in the context of first grade in 1952 that seemed like a pointless throw-in; no idea why we would be saying that. What puzzled me most was, “the republic for which it stands.” I decided it must be that block of wood.
February 17, 2010, 8:35 amTheReasonedMind says:
Your argument stands upon your statement of “non-enumerated power” while the premise of the original argument was “For all other powers that do not violate the US Constitution…”
You are reinforcing the original argument by application of the 10th Amendment with respect to non-enumerated powers or powers that, in fact, would violate the US Constitution.
For those powers that are so enumerated within the Constitution, or conferred upon it by Article 3 judicial decision, Article 6 Section 2 and the 14th Amendment hold that federal law supersedes state law.
February 17, 2010, 8:48 amSkyler says:
Lathrop misattributed:
WHOA! I never said any such thing. You must have me confused with someone else.
February 17, 2010, 8:56 amAnon21 says:
Article V entrenches each state’s equal suffrage in the Senate. So for practical purposes, I think the existing states would need two constitutional amendments (one to repeal the entrenchment, one to kick the state out) to execute such an expulsion.
February 17, 2010, 9:10 amXenocles says:
I concede. Shame on me for that one.
February 17, 2010, 9:12 amXenocles says:
Couldn’t we get around that with the logic that the expelled state is no longer a state and therefore no longer entitled to the protections guaranteed to states?
February 17, 2010, 9:16 amRicardo says:
That’s exactly what I wrote. I explicitly said the people of the United States exercise political power in relation to enumerated powers through Congress and the Presidency.
There is a long list of things that the Constitution prohibits states from doing (coining money, passing bills of attainder, raising an army, signing treaties with other countries, etc.). These prohibitions would be quite toothless if a state could leave at any time. In fact, they would be completely unenforceable. If the federal government tells a state not to pass a bill of attainder and the state says “if you don’t less us pass it, we’ll secede,” there is nothing for the federal government to do in that case. The prohibitions simply become suggestions and the United States becomes like a United Nations of independent states.
Aside from depriving the several states of the power to raise an army, the Constitution also asserts that the U.S. President is the Commander in Chief of both the Army and Navy as well as the state militias when called into the service of the United States by the President. Again, that clause makes no sense if a state can withdraw from the Union at any time and assert that its militia is under no obligation to obey the orders of the President.
These are examples of federal supremacy written into the Constitution in addition to the others I cited earlier. The states have the power to do anything not explicitly delegated to the United States. However, the powers that have in fact been delegated to the United States include those powers we typically associate with sovereign countries: the power to coin money, to raise an army and navy, to sign treaties, to impose duties and tariffs, to establish the rules governing nationality, etc. If a state wants to assert for itself any of these sovereign powers, it is directly violating the Constitution.
February 17, 2010, 9:17 amPer Son says:
Here is a problem with secesion. What about the folks there? Do they remain US Citizens, because since when can a measly state say the Constitution no longer applies to you. That being said, what would happen to Texas if it seceded? All subsidies for cattle ranching would end. I recall reading that if beef subsidies ended, burgers would cost 20-30 bucks each. That may be BS though.
February 17, 2010, 9:21 amSkyler says:
Person has a good point. The 14th Amendment would seem to settle the secession issue all by itself. Secession would deprive the citizens of a state of their priveleges to US citizenship and the protection of the Constitution.
February 17, 2010, 9:39 amwvufan says:
“each State having expressly parted with so many powers as to constitute jointly with the other States a single Nation, cannot from that period possess any right to secede, because each secession does not break a league, but destroys the unity of a Nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offence against the whole Union
. . .
Disunion by armed force is treason”
http://www.digitalhistory.uh.edu/documents/documents_p2.cfm?doc=62
February 17, 2010, 9:44 amPer Son says:
To add to that Skyler, if a state were to attempt to strip a US citizen of his/her panoply of rights under the constitution, it would seem incumbent upon the US government to intervene and protect those citizens.
February 17, 2010, 9:45 amDavid McCourt says:
Leo Marvin,
Your analogy assumes the answer that you wish to arrive at: “Assume company ‘A’ [the U.S.] simultaneously spins off and enters into contracts company ‘B’ [the territory-become-state], and 40 or 50 years later ‘B’ legally terminates the contracts. Does that turn ‘B’ back into a subsidiary of ‘A’?”
A territory of the U.S. that is granted statehood is not “spun off.” It is still part of the United States. A better corporate analogy might be to an unincorporated division becoming a subsidiary.
And when the few inhabitants of the Blank territory were allowed to become a state, they were not given the right to cart off the land that the inhabitants of the United States had acquired through the expenditure of blood or treasure. I would say, if the inhabitants of Blank [one of the 31] no longer wish to be a state, fine, we’ll take our territory back, thank you.
From the standpoint of a Lockean compact, the 31 territories that became states are indeed in a different position from the original 13, and states like Vermont and Texas. The latter had an independent existence before entering the union, and so retain at least some argument that they have the right to reassume that existence. The 31 had no such independent existence.
February 17, 2010, 9:46 amegd says:
I think there are a lot more interesting non-legal issues than there are interesting legal issues in the “right to secede.” Legally, I think Scalia is right that the case of State vs. the United States would never happen, but federal laws could still be attempted to be enforced in the seceded state.
Given our distaste for war, especially all-out war, balanced against the significant military power of the Federal Government, how would the feds react to a secession attempt? Would they attempt to take out the leadership of the secession movement and impose martial law on the people of the state? Would they destroy important government infrastructure, forcing them to rebuild once the war is won?
Also, obviously one state wouldn’t be able to succeed, given the balance of forces, but what if a few states, each having significant military resources within their borders, decided to try to break away? What would be the reaction of the U.S. Military personnel in the states?
I think that these are more interesting questions than the legal questions.
February 17, 2010, 9:55 amS says:
Scalia has a good legal point with the Pledge. Everyone who has taken the Pledge, would have to break their personal compact (pledge) with the US to support secession. That would be illegal.
February 17, 2010, 9:56 amStephen Lathrop says:
Apologies to Skyler. I did misattribute. Clicked it wrong I think. It was ohwilleke, addressing Skyler, who said: “The Pledge is very much a part of the living law of the United States,…”
February 17, 2010, 9:56 amPer Son says:
S-
I did not know that breaking a pledge was an illegal act.
February 17, 2010, 10:04 amTheLastBrainLeft says:
I find the debate about the legality of secession, and the whole argument is irrelevant. Had the South won the civil war, they would have successfully seceded from the Union. Clearly, secession is a matter of political will and military power. If Maine wanted to secede and join Canada, and if Canada sends it’s Army into Maine, and the United States cannot physically drive them out, then secession is a matter of fact, no matter what the Anointed Nine say.
February 17, 2010, 10:17 amPer Son says:
TheLastBrain – you are missing the point. The discussion is more about whether a state can peacefully secede as a matter of law.
February 17, 2010, 10:22 amJones Act and Maritime Law Attorney says:
While I understand the intrinsic joy of discussing the intricacies of succession law, the debate does seem slightly irrelevant. But it looks like I’m in the minority on this one.
February 17, 2010, 10:29 amS says:
Jones, I think you are in the overwhelming majority but, as you know, angels on a pinhead . . .
February 17, 2010, 10:34 amAnderson says:
Given our distaste for war, especially all-out war, balanced against the significant military power of the Federal Government, how would the feds react to a secession attempt?
That is the interesting point. Farber’s book that I mentioned considers the moral case for secession as well as the moral case against resisting secession by force.
If not for the abolition of slavery, it would be difficult to argue that the 600,000 dead and innumerable other lives wrecked, were worthwhile. (Difficult, but not impossible.)
February 17, 2010, 10:41 amDavid McCourt says:
“If not for the abolition of slavery, it would be difficult to argue that the 600,000 dead and innumerable other lives wrecked, were worthwhile.”
The 600,000 is hindsight, as almost no one on either side expected anything close to a fraction of that.
But, Anderson, you seem to be laying all those bodies at the door of those who resisted secession, rather than with those who attempted to secede. Why, I wonder?
February 17, 2010, 10:55 amS says:
Per Son, As you know, promises are often legally binding and courts enforce them in multiple ways. You are right that not all promises are legally binding but this I suspect is, as stated by the Justice.
February 17, 2010, 10:55 amA. Criminal says:
Ask a Government Lawyer. They’re really sharp and work hard because they know they can be replaced at any moment; and they’re completely impartial because they don’t know who pays their salary.
February 17, 2010, 10:55 amPubliusFL says:
I’m betting on BS. Various web sources say Americans eat 100-150 burgers per capita annually. If cattle ranching subsidies total $600-900 billion per year, I guess we’ve discovered how to put a heck of a dent in the budget deficit: eat more chicken. ;)
February 17, 2010, 11:02 amtroll_dc2 says:
I know that a lot of good stuff was posted (Note to EV: “posted” is not a good verb here because commenters do not write posts, but what verb would be better?) after this comment, but Skyler’s comment makes me think of a few things:
1. In terms of foreign support, it can be questioned whether we would have won the Revolutionary War without the assistance of France.
2. A number of European states supported the Confederacy during the Civil War, the most important one being Great Britain. The genius of the Emancipation Proclamation was that it focused Europe’s attention on the slavery problem and made it impossible for Europe openly to support the South. But there was still support, especially in the effort to break the North’s blockade of Southern ports.
3. If I recall (without having to look it up), was there not strong secessionist sentiment in New England before and during the War of 1812?
February 17, 2010, 11:03 amFront Porch Philosopher says:
Let’s take it from a different direction, that I believe HAS made it into popular fiction.
I understand that Texas, an essentially conservative state, was GUARANTEED – by the treaty under which it became a part of the Union – the right to divide itself in 5 individual political entities at some undetermined future point.
NO impact on the House, but potentially 8 new Conservative Senators. How would THAT upset the political applecart?
To the best of my knowledge, as a mere civilian, NO ONE ELSE has that guaranteed right?!?
February 17, 2010, 11:21 amDjDiverDan says:
That was President Andrew Jackson.
February 17, 2010, 11:39 amAnderson says:
But, Anderson, you seem to be laying all those bodies at the door of those who resisted secession, rather than with those who attempted to secede.
Not so. There are two questions, the morality of secession, and the morality of resistance to secession. I consider the South’s secession to have been illegal and treasonable, so I am scarcely one to blame Lincoln for the war.
February 17, 2010, 11:48 amRandy says:
Skylar: “WHOA! I never said any such thing. You must have me confused with someone else.”
Thank goodness for that. I’m glad to see you are right about *something*! (jus’ kiddin’)
February 17, 2010, 12:01 pmMike Giles says:
I have never understood why the South didn’t go the Amendment route. The North and Midwest were heartily sick of their domination of the Union; and with the settling of some issues (navigation on the Mississippi, division of unorganized territories, percentage of national debt), the probably would have been willing to send them on their way. The method they choose – state succession – was a final slap in the face of the rest of the Union by the “Slave Power”.
February 17, 2010, 12:17 pmWilliam Wallace says:
I’m sure that the British Crown thought the idea of a rag-tag group of colonists seceding from the authority of the Crown was a “sci-fi” scenario too. The point is, we exist as a nation because we seceded from the Crown. The Crown obviously didn’t think that we had that right. The Crown thought the issue was settled as a matter of law. It obviously wasn’t. Secession flows from Natural Law, not a political document. Appomattox no more settled the question than did the American Revolution. Secession will always be an option for those who have the will to exercise that option.
February 17, 2010, 12:25 pmMick says:
I have to think that Scalia’s response was a joke, but if he wants to cite the Pledge of Allegiance, I will cite the Declaration of Independence.
“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.”
More?
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. 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.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.”
You know, Natural Inalienable Rights— Natural Law. It is not the right of the government to govern, it is by our permission that they govern.
Pretty easy question really. Again, I have to think that Scalia was joking.
February 17, 2010, 12:41 pmStan says:
William, you again mix up claims. Revolution is never legal. The US Declaration you quoted abolished the government.
Secession, on the other hand, was a State’s legal right according to its proponents. But that right does not exist under US law. See, White.
So you claim the right of revolution not secession (besides the fact that you would have to be a State to make the secession claim).
February 17, 2010, 1:06 pmMark Field says:
There certainly was some such sentiment. How “strong” it was is hard to measure. Certainly not strong enough for even the Hartford Convention to recommend secession.
February 17, 2010, 1:08 pmMark Field says:
I’m beginning to think it’s deliberate. Lots of people, in multiple threads, have made the distinction clear, but we still have unreconstructed Lost Causers who come here and try to justify their views by misstating the facts.
February 17, 2010, 1:10 pmSkyler says:
I think it’s more accurate to say that whether they have the will is immaterial. They need to have the might.
February 17, 2010, 1:32 pmMick says:
It also guarentees Liberty and Justice. So there are conditiions put upon indivisibleness. If the Federal Government interferes with the liberty of the individuals of a state then it has broken the pledge.
February 17, 2010, 1:35 pmMick says:
That would certainly be the cause of a “Kent State” type moment and surely would turn public and world opinion against the central US government.
February 17, 2010, 1:37 pmSkyler says:
Mick, I didn’t say that secession is right, only that power is what allows it.
The alternative to the Kent State example you bring up is that if the US were to allow a state to secede, that would look like a grave weakness to other nations and reduce the federal government’s perceived standing in the world. I suspect that they would use all their might to suppress another insurrection, Kent State be damned.
Civil disobedience and world opinion are only important if they allow them to be important.
February 17, 2010, 2:02 pmXenocles says:
I fail to see the difference, Mark. Both events endeavored to “alter or abolish” the allegedly oppressive government and “dissolve the political bands” between the rebels and the orthodox government. There’s a case to be made that the Declaration is itself an article of secession since the Crown wasn’t abolished; the only alteration was in the breadth of its power worldwide. When the original government still exists with minimal structural change, it’s a poor example of a revolution.
(1789, on the other hand, is an excellent one.)
February 17, 2010, 2:45 pmStan says:
Xeno – The Crown was abolished in the United States and Americans deposed their king. They declared themselves a Republic – something new under the sun. That was the most revolutionary act you could take in the 18th century. If that was not a revolution, it has no meaning.
February 17, 2010, 2:57 pmXenocles says:
The true American Revolution was in 1789, in which the Convention completely overthrew the existing government and created a new one in its place. The difference here is that there was no separation of groups as there was in 1776 or 1860.
I won’t deny that a secession will most often involve the creation of a new government from whole cloth. That may be revolutionary in the sense that it’s rarely or never done, it may even fall under the umbrella of a revolution, but my point was that the Colonies’ Declaration of Independence and the Confederate States’ respective declarations of secession are very similar. Similar enough, in my opinion, to put them in the same class.
February 17, 2010, 3:14 pmTCO says:
Section 3.
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.
——————–
West Virginia?
February 17, 2010, 3:25 pmKipchuk says:
After reviewing most of the posts above, I can’t even conceive of secession arising in a serious fashion ever again. Except for one caveat: following a possible future collapse of the US Monetary system, i.e., the dollar and accouterments. Following closely on the heels of such an event, regional groups of states may well decide that they would be better off together and separated from a super mess in Washington. Plus the size of the US population, surging past 300 million, has become a real bottleneck in trying to achieve that supposed nirvana state of “Can’t we all just get along together?”
February 17, 2010, 3:30 pmDilan Esper says:
The South never claimed they were revolting, they claimed that secession was legal.
The rest of the country, on the other hand, has always found the South revolting.
February 17, 2010, 3:33 pmXenocles says:
The justification there was the consent of a puppet Virginia legislature since the Feds no longer recognized the one that seceded. I think after the war it was challenged and it held up.
February 17, 2010, 3:49 pmMark Field says:
Putting aside how we might characterize the 2 situations, we need to understand how the people of the times did. There’s no doubt that Jefferson et al. thought they were engaged in a Revolution; they expressly said so and we called it that. The Declaration makes the case that revolution is a natural right, i.e., one outside of law.
But the Southern states didn’t make any claim for revolution in 1860. Instead, they argued that secession was a purely legal issue, not an exercise of natural right.* Their argument was that the Constitution allowed them to leave, i.e., that the fundamental law was in their favor.
When we today say that “secession is illegal” we’re talking about secession as claimed by the South in 1860, not about revolution. If you want to change the meaning of the word “secession”, then you need to make it clear that you’re doing so; then we can debate that new concept.
*Everyone, including Lincoln, conceded that they had a natural right of revolution. They chose not to claim that.
February 17, 2010, 3:51 pmRich Rostrom says:
Mark Field says: That’s why all the seceding states called conventions.
Not quite true. Tennessee and North Carolina never had secession conventions. In both states, the “conditional Unionists” defeated the referendum calling for a convention. Then after Fort Sumter, both states joined the CSA by immediate legislative/executive action, later ratified by referendum.
February 17, 2010, 4:01 pmRich Rostrom says:
Skyler says: One of the reason there are so many states in Africa is because the UN has been encouraging every ethnic group to break away from western imposed borders.
Completely wrong. The cardinal principle of the post-colonial political order in Africa is the inviolability of the borders laid out under colonialism. Essentially all African governments support this – because they all have reason to fear secessionism in their own territories. That is why the colonial borders remain almost perfectly intact today.
All African states were distinct colonial territories, and none have been created since independence (except Eritrea). The UN has never encouraged or supported any post-colonial secession movement in Africa. The only such movement to succeed, AFAIK, is Eritrea – and Eritrea was not part of Ethiopia before 1945. (It was an Italian colony and was merged with Ethiopia when the latter was conquered in 1935, and was awarded to Ethiopia after the war.) Morocco’s takeover of Western Sahara has never been recognized by other African states; neither has Somaliland’s de facto secession from Somalia.
February 17, 2010, 4:22 pmTCO says:
I know. But was that the proper legal adjutication or an act of political expedience? If such puppeting is allowed, then any part of a state could always so puppet and by doing so, negate the Constitution’s requirement for assent by the state legislature.
February 17, 2010, 4:54 pmXenocles says:
It depends on who you ask. IMO it was pure expedience in the vein of Lincoln’s decision to suspend habeas corpus in order to arrest pro-secession members of the Maryland legislature. I don’t think there’s a real provision for the Federal government to dissolve and replace a state body.
February 17, 2010, 5:04 pmSkyler says:
The American colonies all had representative government, such as Virginia’s House of Burgesses (there might be an exception to the rule, but I am not aware of it). They really already had a form of government and they simply claimed sovereignty separate from the crown.
The Confederate states did exactly the same thing. They had their own representative governments and simply asserted their own sovereignty. Seems to be very little difference. Remember too, that many confederates considered the war the second American Revolution.
You make a distinction where there really isn’t one.
February 17, 2010, 5:13 pmXenocles says:
Skyler, please read the rest of my posts in the thread. I think we’re on the same side, mostly.
February 17, 2010, 5:22 pmMick says:
BS, you are creating the straw man. Natural Rights are not “outside the law”, the bill of rights are Natural Rights and are very much w/in law.
February 17, 2010, 8:04 pmDilan Esper says:
BS, you are creating the straw man. Natural Rights are not “outside the law”, the bill of rights are Natural Rights and are very much w/in law.
So you have a natural right to jury trial, in federal court only, if the amount in controversy in your civil case exceeds $20?
February 17, 2010, 8:40 pmJR says:
I’m confused by Scalia’s argument that this question could never end up before the Court. Why wouldn’t the obvious scenario be that a state would schedule a referendum on secession (a la Quebec) and the federal government would sue to stop the vote from taking place? Or, perhaps the federal government would take action to stop the vote by force, and the state would sue the federal officers carrying out that action, arguing that it was ultra vires?
Am I missing something? Maybe it’s a political question, but that doesn’t seem to be Scalia’s argument.
February 17, 2010, 9:19 pmChris M says:
I haven’t seen anyone address what to me seems like a very important point: the Constitution is a two-way street, no? Yes, the states ceded certain powers to the federal government, but they did so under certain conditions (laid out in the Constitution), it wasn’t a permanent delegation of total authority to Washington. If, for an extreme example, the Federal Government began warrantlessly arresting swathes of American Citizens and indefinitely sending them to detention camps without trial, wouldn’t the states (or, at least, the people of the various states) have a legal right to claim that the federal government had broken its end of the contract, and therefore the whole thing was null and void? Or are those who say that secession is illegal giving the federal government a blank check to do as it pleases, rendering the Constitution nothing more than a yellowing piece of paper. I’m not trying to be snarky, I’m legitimately curious what people think about this.
February 17, 2010, 9:39 pmEdward A. Hoffman says:
What you describe would violate the constitution, of course. But it would violate the rights of (many) individuals, not of the states. Individuals could then challenge the practice in federal courts, which would surely strike it down. But the states probably wouldn’t even have standing to bring a lawsuit over this, let alone to secede.
February 17, 2010, 9:45 pmChris M says:
and if the federal government ignores the courts, or in an even more extreme example has packed the court with judges who uphold its actions? I’m just curious how far the federal government has to go before the people or the states can decide “that’s enough?”
To be honest, though, I don’t really think the legal question is very important. It’s been mentioned, but what Adams, Jefferson, Washington & company did was every bit as illegal (if not more so) than what Davis, Lee, and Jackson did four score and five years later, the difference is that the Founders won & the Rebels lost. Maybe the mistake the south made was that they tried using the legal argument, rather than the natural rights argument (though I suppose that would have rung hollow, considering the major states rights issue at play in 1860 was human slavery). Maybe the British should have issued an emancipation proclamation after they captured Philadelphia and turned us into the bad guys.
February 17, 2010, 10:04 pmMark Field says:
You misunderstand. We have lots of natural rights. Some of them have been codified in the Bill of Rights or statutes. Some have not. Those which have not, like the right to revolution, can always be asserted, but not as a legal defense (because no law protects them). If you want to vindicate a natural right which the law doesn’t recognize, you usually have to do so by force.
Bingo! Yes, the reason the South avoided any appeal to natural rights before the War was precisely that any such appeal would have created real problems for the owners of slaves.
February 17, 2010, 10:39 pmRicardo says:
They would but the recourse would be through Congress, the federal courts and the Presidency. I suppose you could construct a scenario where the President suspends Congress, ignores the Supreme Court and abolishes elections or where there is a military coup; in that case, the United States government as we know it would arguably cease to exist until democracy was restored. In any event, to the extent the federal government becomes dictatorial, legal arguments by definition won’t carry any weight. Or at least they will not until checks and balances are restored and the leaders of the dictatorial government are put on trial.
Just as a contract may specify an arbitrator or a jurisdiction where disputes are adjudicated, disputes over the U.S. Constitution are aired in any one of the three branches of the federal government. Checks and balances, when operating properly, assures that no one branch acquires excessive power.
February 18, 2010, 1:04 amGroujo says:
Might may not make right in a moral sense, but it does in FACT make RIGHTS. On a practical level, rights (in the sense of human rights, natural rights, or legal rights) only exist to the extent others, particularly those with the power to deny those rights, agree they exist and chooses to defend them or at least abide by them. Imagine a Roman slave declaring he has a natural right to be free. Laughable and meaningless, until Spartacus backs the idea up with an army. Thus until there is a legal code of some kind to discuss, might is the only thing that makes a “right”. In the musical 1776, the conservative John Dickinson asks incredulously whether the revolutionaries’ proposed Declaration was attempting to declare that an illegal rebellion is in fact a legal one. It’s Franklin who reminds him that rebellions are always legal in the 1st person: “our rebellion”. They are only illegal in the 3rd person: “their rebellion.” That’s how rights exist. They are “declared” and either accepted or not.
So in one sense, a state has the right to secede to the extent that 1) the U.S. is forced to admit that the state has that right or 2) the state declares this right and the U.S. decides to accept it or 3) the state declares this right and successfully defends it. This principle is only otherwise when we’re talking about the abstract notion of rights in under a legal code such as the Constitution. Of course, even the Constitution isn’t worth the paper their printed on unless the government has power and the will to back it up. But since enormous power does seemingly back it up, its words can matter a great deal.
The answer to this academic question of whether the Constitution prevents secession seems to be: “it doesn’t really say”, and my guess is it will end up “saying” whatever those in power wish that it “says”.
My own take is that, ever since the 14th Amendment, states do not have the right to take away any U.S. citizen’s federal rights. Secession would certainly violate this provision, unless you could demonstrate that every one of your citizens is in agreement to leave the union. If there is a single person objecting, it seems to me the U.S. government is legally bound to protect that citizen any way it can. It’s enough to hang your legal hat on, anyway.
The enduring question (whether the U.S. actions against the Confederacy in the early 1860s were legal under the Constitution as it existed then) is not answered by this 14th Amendment argument because that Amendment postdates the Civil War. The ‘might makes right’ reality of the world doesn’t stop today’s Confederate sympathizers from complaining about their victimization in “Lincoln’s War Against the Constitution”. I’d very much like to know the legal argument behind the United States’ choice not to recognize the secession of South Carolina, et al. Anybody?
I’m guessing it went basically like this: If states could simply up and leave whenever they didn’t like a decision of the federal government (or more realistically, threaten to secede as a bargaining tactic), it would make the federal government essentially powerless, beholden to each individual petulant member of the union. A functioning union requires that members be bound by the will of the majority, and that they cannot simply veto its decisions of that majority. Therefore, though prohibition of secession is not explicit in the Constitution’s language, a “right of seccession” is clearly untenable, and its prohibition is implicit and requisite. How’s that?
March 6, 2010, 7:13 pm