Orin blogged about it briefly here; the letter itself is quoted here, and reads:
I am afraid I cannot be of much help with [the question of whether there is a legal right, enforceable by the Supreme Court, for a state to secede], principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”) Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.
I agree entirely with Justice Scalia that a state cannot claim in court a legally enforceable right to secede. Following the Civil War, the Court held that states lack such a right to secede. But I suspect that even before the Civil War, the Court wouldn’t have held in favor of a right to secession, whether on the merits or under the “political question” doctrine. Just a it wasn’t for the Court to decide whether a highly unrepresentative state government had an insufficiently “Republican Form of Government”, so I don’t think that it would be for the Court to decide whether the United States should let a state (in the question to which Justice Scalia was responding, Maine) leave the union.
And I doubt that Justice Scalia is saying anything beyond what a court could do. That, after all, is the question he was facing (asked by a screenwriter): “My latest screenplay is a comedy about Maine seceding from the United States and joining Canada. There are parts of the story that deal with the legality of such an event and, of course, a big showdown in the Supreme Court is part of the story…. If you could spare a few moments on a serious subject that is treated in a comedic way, I would greatly appreciate your thoughts.” Whether a state can successfully claim a right to secede, before the nation at large (presumably in persuading the nation not to use military force to keep the state from seceding) is a separate matter.
On that, I stick by my earlier views, and I don’t think that Justice Scalia’s comment is to the contrary (though I’d stick by my earlier views even if he did intend his comment to cover a political claim of right, at least absent further argument explaining why my views are mistaken):
Whether there is a moral right to secede, which the nation as a whole should respect, must be a judgment based on how we see the world today, not based on what happened 144 years ago. A matter is “settled” by political decision only so long as the political decision commands the adherence of the polity. If in 2065 Alaska, California, Hawaii, or Texas (just to consider some examples) assert a right to secede, the argument that “in 1865, the victorious Union government concluded that no state has a right to secede in opposition to the wishes of the Union, so therefore you lack such a right” will have precisely the weight that the Americans of 2065 will choose to give it — which should be very little.
And beyond that, even if there is some precedent of some sort properly set by the Civil War (and I continue to disagree that there is), any such precedent can’t tell us much about consensual secession. The talk I occasionally hear of secession (again, talk that I think is not really serious) is not about departure in the face of military opposition — it’s about creating a political sentiment in some place in favor of seceding, and a political sentiment in the rest of the country in favor of allowing the secession. The results of a bloody civil war tell us nothing about the propriety of a Velvet Divorce.
Appomattox might well have a continuing effect (as does Philadephia) on the psyche of today’s Americans, and of future Americans. Its immediate effect also deeply influenced the economic structure of the nation, and the political structure of the nation’s political institutions; I suspect this also makes future secession less likely.
But that’s not a “settlement” of the secession question for the centuries. And there can be and should be no such settlement. “The past is a foreign country: they do things differently there.” So the present is different from the past, and the future from the present. Poetic allusions to a peace treaty resolving one particular conflict can’t tell us what is right to do in our country today.
Stan says:
Volokh: “even if there is some precedent of some sort properly set by the Civil War (and I continue to disagree that there is)”
Scalia: “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.”
Does sound contradictory. Although, I understand your clarification now, as ‘nothing is ever settled,’ to be rather pointless.
Do you think it’s settled that Fairfax county can’t secede from Virginia?
February 17, 2010, 2:43 pmAF says:
And I doubt that Justice Scalia is saying anything beyond what a court could do.
I think it’s pretty clear that he is saying what he thinks the Constitution means, and not just what a court could do. His second point is about justiciability, but his first point is that “there is no right to secede.”
February 17, 2010, 2:44 pmChris Travers says:
Actually I don’t.
In my state (Washington) there has been a continuous movement for the Eastern half of the state to secede from the Western half and petition for statehood on its own terms.
That hasn’t gotten too far simply because despite the fact that folks think that Seattle pulls too much political weight, we, on the east side of the state, get disproportionate amounts of funding….. Hence the constant belly-aching keeps everyone happy.
February 17, 2010, 3:02 pmRoger says:
The query was about the legality of secession. Even if Scalia is right that the court is not going to rule on it directly, it is easy to imagine the issue coming up indirectly. Eg, a Maine citizen gets prosecuted for not paying his taxes, and the trial court has to determine whether Maine is a state in the USA.
February 17, 2010, 3:04 pmLarvell Blanks says:
Scalia’s gone and done it again. Now he’s gonna have to recuse himself when the next big secession case comes before the Court. I don’t even want to imagine the carnage that will follow the inevitable 4-4 split.
February 17, 2010, 3:08 pmfalafalafocus says:
I don’t understand why, in all of these posts on seccession, no one discusses that at least one quasi-violent secession has already occurred (kind of).
Stangely, I did not need a passport two months ago.
February 17, 2010, 3:10 pmPeter K. says:
Scalia is plainly wrong on one point: The seceding state might not be allowed to sue the “United States” without the consent of the U.S., but any state could sue the other 49, bringing to the judiciary a controversy “between two or more states” in an action in “equity” (Article III, Section 2).
Partition and dissolution of partnerships are settled subjects of equity jurisdiction. And if the alternative is civil war, has Scalia learned nothing from the history he cites?
Furthermore, such a case would be one “in which a State shall be Party”, and thus, the Supreme Court would have original jurisdiction (same section, next paragraph).
Has Scalia prejudged the case, and has he thus disqualified himself?
February 17, 2010, 3:14 pmNaG says:
Justice Scalia is probably correct that there is no court-enforceable legal right to secession. In fact, there is a Supreme Court case (Texas v. Jones, if I remember correctly), that held that actions by a state claiming to have seceded were void as a matter of law. The simple fact is that secession is only enforceable to the extent the seceding party has the force to back it up. Theoretically, a U.K. court could rule that the actions of the United States are void because we had no legal right to break away from the homeland via revolution. The reason why they don’t is only because we won and they lost. The only reason why Texas v. Jones is enforceable is because the South didn’t have the force necessary to invalidate the opinion, plain and simple.
February 17, 2010, 3:24 pmNelson Lund says:
I’m surprised that anyone who had read what Eugene and Scalia wrote would think they were inconsistent.
February 17, 2010, 3:28 pmOren says:
What about Reynolds_v._Sims, which effectively subsumed the right of suffrage under Equal Protection?
February 17, 2010, 3:30 pmPeter says:
Perhaps the real question isnt whether states can secede. It is whether they can have their statehood revoked, as happened (in fact if not in law) after the Civil War.
The most corrupt states–those that cannot control their debts–IL, NY, NJ, CA–should be temporarily denied representation in Congress and forced to draft new constitutions acceptable to congressional majorities (majorities after the midterms, course).
February 17, 2010, 3:38 pmRandy says:
Chris: “In my state (Washington) there has been a continuous movement for the Eastern half of the state to secede from the Western half and petition for statehood on its own terms.”
Back in western New York, there is talk from time to time to split New York into upstate and New York City because Buffalonians seem to think that they are subsidizing all the welfare recipients in NYC. I’ve tried to explain that NYC gives more to Albany that they get, that Buffalo and the rest of NY gets subsidized by downstate to no avail. Then I try to explain that the tax base of one square block of midtown Manhatten is larger than the entire tax base of the city of Buffalo, and then they start to understand. But they still want to secede because they just do.
February 17, 2010, 3:52 pmRandy says:
I’m sure this ‘comedy’ about Maine trying to secede will be a real knee slapper.
February 17, 2010, 3:53 pmAF says:
I’m surprised that anyone who had read what Eugene and Scalia wrote would think they were inconsistent.
Volokh’s argument that the existence of a moral right to secession is not settled is consistent with Scalia’s argument that there is no legal right to secession.
But Volokh’s suggestion that Scalia’s letter is only about justiciability is clearly wrong.
February 17, 2010, 4:01 pmBC says:
If only the South would secede again…then the north could stop funding its existence.
February 17, 2010, 4:09 pmShelbyC says:
The south ain’t forcing you to fund anything. Don’t like all the spending, just stop.
February 17, 2010, 4:16 pmChris Travers says:
I personally found Scalia’s legal argument so heavily hedged so as to be worthless.
Since when are issues of Constitutional law decided on the battlefield?
Also there may be crossed wires here. I think there is a right to secede. If there is no legal right to secede, then the secession must have had no legal impact, and should have been null and void, right?
I also think though the right to secede only addresses the secession process. Once the state has seceded, then the state is foreign territory and hence can be conquered and annexed again. So Scalia may be saying that there is no right, post-secession, to be left alone.
Otherwise, I have trouble accepting the tactics used to force ratification of Amendments 13-15 as being Constitutionally permissible. On the other hand, I can’t imagine anyone arguing that case today.
February 17, 2010, 4:17 pmAndy Krause says:
If only the South would secede again…then the north could stop funding its existence.
February 17, 2010, 4:20 pmIn terms of economics, you have this exactly backwards.
Mark Field says:
When one side appeals to bullets rather than ballots.
February 17, 2010, 4:39 pmAndrew H. says:
I find this whole discussion to be a can of worms. The idea that Congress lacks power to prevent a state from seceding is wildly implausible. For one thing, that would mean a state can confiscate federal property within the state, which is a patently absurd notion.
Perhaps this is all a cleverly fiendish plot by Professor Volokh to enable California to threaten secession unless California gets more voting power in Congress. In any event, such proposals need to be considered without illegitimate threats of secession.
It was not by accident that the Constitution was ratified by conventions in each state, rather than by the legislatures of each state. Ratification was an act of the American people, rather than an act of the separate states.
February 17, 2010, 4:41 pmloki13 says:
What? When you make a bizarre argument, it’s nice to back it up.
For the opposite of what you’re saying-
Here would be an example.
February 17, 2010, 4:43 pmrequired says:
Well played, now just let me clean the coffee off my screen and hope it didn’t get into the keyboard…
February 17, 2010, 5:01 pmCJColucci says:
The Constitution is full of procedures, or authorizes Congress to create procedures, to do a great many things. There’s no procedure for secession, and Congress hasn’t created one. In the unlikely event of a proposed consensual secession, that’s no big deal because Congress could make something up. I suppose Congress would also have to make up what counts as “consent” and whose consent is required: a majority of Congress, two-thirds, unanimous consent of the non-seceding states, some lesser portion? Whatever Congress came up with would probably be beyond judicial review as a political question. But what is the procedure for non-consensual secession? Contracts often specify how parties can unilaterally get out of them, but (with a few exceptions) in the absence of such a procedure, unilateral withdrawal from a contract is a breach. If the Constitution is thought to allow non-consensual secession (it neither forbids nor allows revolution), one would think there would be a specified way to do it.
February 17, 2010, 5:02 pmThales says:
A commenter writes:
“The query was about the legality of secession. Even if Scalia is right that the court is not going to rule on it directly, it is easy to imagine the issue coming up indirectly. Eg, a Maine citizen gets prosecuted for not paying his taxes, and the trial court has to determine whether Maine is a state in the USA.”
I think the trial court (if federal, and not in the putatively seceded Maine) would take judicial notice that Maine is in the USA, then likely dismiss without briefing the contrary argument and sanction the party and attorney bringing it for making a patently frivolous claim.
Eugene writes:
“Whether there is a moral right to secede, which the nation as a whole should respect, must be a judgment based on how we see the world today, not based on what happened 144 years ago. A matter is “settled” by political decision only so long as the political decision commands the adherence of the polity. If in 2065 Alaska, California, Hawaii, or Texas (just to consider some examples) assert a right to secede, the argument that “in 1865, the victorious Union government concluded that no state has a right to secede in opposition to the wishes of the Union, so therefore you lack such a right” will have precisely the weight that the Americans of 2065 will choose to give it — which should be very little.”
This is pretty inarguable, but I’d go further, in that all alleged “moral rights” of any kind depend on societal support to have any meaning or effect. And it’s an open (and likely at best unanswerable) question, whether there are in fact any moral rights or if they are simply imaginary.
February 17, 2010, 5:08 pmDNJ says:
Well, as you noted, this related to the Equal Protection Clause, not the Republican Form of Government Clause.
I wonder when the Republican Form of Government Clause would be violated. Suppose a state replaced its Governor with an hereditary monarchy. Presumably this would violate the Republican Form of Government Clause, and the President and/or Congress would have the authority (using force if necessary) to return the state to its previous form of government. But if they declined to act, it appears from Luther v. Borden that the courts would not strike down the state’s constitutional amendment.
February 17, 2010, 5:10 pmThales says:
Also, in the realm Eugene is describing, the distinction between power and right or authority has broken down.
February 17, 2010, 5:10 pmii says:
One could argue that if the Constitution is thought to prohibit non-consensual secession, there would be a specific provision doing it. Instead, we have to make a whole lot of inferences — some of which are counterintuitive — and stretches to come to that conclusion.
February 17, 2010, 5:12 pmAndrew says:
As I understand Professor Volokh, it would have been perfectly constitutional for the people of Alaska to have seceded from the United States against the wishes of Congress, on the day after Congress paid Russia to acquire Alaska. It boggles the mind how absurd such a notion is, IMHO.
February 17, 2010, 5:14 pmCJColucci says:
One could argue that if the Constitution is thought to prohibit non-consensual secession, there would be a specific provision doing it.
What would a procedure for forbidding non-consensual secession look like. Not language saying “no secession,” which wasn’t my point, but a procedure.
February 17, 2010, 5:20 pmActually, I take that back. There is a procedure. Art. I, Sec. 8(11)-(15).
Cloudesley Shovell says:
I think I’ll write a letter to all the justices of the Supreme Court asking if the other 49 states could kick Maine out of the union. (Could be any state–not picking on Maine, but it’s the state from the screenplay)
Hasn’t been a war about that issue yet.
February 17, 2010, 5:27 pmii says:
But why arbitrarily limit the thrust of your point to procedure? Yes, the Constitution is full of procedures, but it’s also full of substantive rights; prohibitions; and enumerated powers, none of which even HINT at secession. The fact is, secession in the Constitution is the same as abortion in the Constitution — it just isn’t contemplated in the text, and you have to engage in juristic acrobatics to tease it out of the text.
My response is simply a tit-for-tat. Okay, there’s no procedure for secession, but there’s also no substantive prohibition of it, among many other substantive prohibitions of what states may do. The anti-secession provision many seem to think ought to be there is conspicuously absent.
February 17, 2010, 5:28 pmPersonFromPorlock says:
An important point is being missed here! If we’re talking about “Maine seceding from the United States and joining Canada” then Maine’s not seceding from the US, it’s un-seceding from the American secession from Britain. And since Scalia says there’s no right of secession, he can hardly oppose undoing one. ;^)
February 17, 2010, 5:44 pmMaine-iac says:
This argument is asserted all too often. Yes, the Constitution was ratified by conventions – but conventions in each state. Accordingly, ratification was an act of the people of the individual states, rather than an act of the American people as a whole.
On an entirely different matter: as someone from Maine, I find it very humorous to think of Maine seceding to join Canada. After all, Maine is the only state to have waged war against Canada on its own – the Aroostook War. The issue was the location of the northern border. Only one person died, and he froze to death. But at the time it was a pretty significant issue, even causing the US to authorize 50,000 troops (led by Gen. Scott, I believe). In the end, the conflict was averted when Daniel Webster, then Secretary of State, negotiated the Webster-Ashburton Treaty that settled the northern border of the US.
February 17, 2010, 5:51 pmAndrew says:
Maine-iac, if what you say is correct, then the first words of the preamble would have been: “We the peoples of the several states.”
February 17, 2010, 5:54 pmMaine-iac says:
No. It could have said that, but it is not necessary. “We the people of the several states” are also “We the people of the United States.”
February 17, 2010, 6:00 pmleo marvin says:
The word “microcosm” comes to mind.
February 17, 2010, 6:00 pmThales says:
“Maine-iac says:
Andrew: Maine-iac, if what you say is correct, then the first words of the preamble would have been: “We the peoples of the several states.”
No. It could have said that, but it is not necessary. “We the people of the several states” are also “We the people of the United States.””
I don’t agree with this description, and I don’t think the framers did either. Akhil Amar has a pretty good exposition of the preamble in his recent book America’s Constitution: A Biography.
February 17, 2010, 6:12 pmThales says:
From an Amazon review of Amar’s book, which nicely captures the point:
“The virtues of Amar’s textualism are very much in evidence in his analysis of the Preamble. Contrasting the ratification process of the Articles of Confederation with that of the Constitution, Amar persuasively argues not only that the Union formed under the Constitution was legally indissoluble by unilateral secession, but that it was so understood by its authors and ratifiers. He secures this result by a close reading of the phrase “more perfect union”: the proposal of such a union, Amar demonstrates, was based at least in part on the legal (and legally indissoluble) union of England and Scotland in 1707. Moreover, as Amar reminds us, it was widely agreed by Federalists and Anti-Federalists alike that the new government would be impossible to back out of: for the Feds this was, if anything, an advantage (albeit one to keep quiet about), while for Anti-Feds it was deplorable and dangerous. A nice feature of this analysis is Amar’s reading of the Feds’ relative silence on the issue of secession: had it been generally understood that unilateral secession would remain as a sovereign right of states under the new Constitution, the Feds would certainly have stressed the fact in order to reassure and win over their opponents. They didn’t. All of this–the historical background of the union of Scotland and England, the explicit pronouncements of the participants in the great debate on ratification, and the “roaring silence” of the Federalists on the issue of unilateral secession–is used to give dispositive content to a phrase normally dismissed as a rhetorical flourish. (To be sure, the Court itself appealed to the phrase “more perfect union” in Texas v. White, its 1869 decision disallowing secession; but the reasoning in Texas is tortuous and unpersuasive, ascribing a weirdly persisting occult validity to the Articles of Confederation except as explicitly overridden by the Constitution. Amar’s account is much cleaner and more intuitive.)”
February 17, 2010, 6:21 pmjcm says:
If only the South would secede again…then the north could stop funding its existence
February 17, 2010, 6:24 pmGm, Chrysler in the North bailed out
Toyota, Honda , Mitsubishi in the south making cars that people want.
Sixth economy in the world, even broken , in the south
David McCourt says:
“If the Constitution is thought to allow non-consensual secession (it neither forbids nor allows revolution)….”
Of course it forbids revolution and “non-consensual secession.” It does so by proclaiming its own existence as a sovereign government. No sovereign government can acknowledge the legality of defiance of its own legitimate (even if greatly limited) powers, or recognize a legal right for any to citizen to attack and overthrow it. To recognize a legal right of revolution a government would have to recognize that its own existence was unlawful and illegitmate. No government on earth recognizes or could recognize such a right, whatever the constitutions of several states may pretend to say about the matter.
A goverment which lacks the legal authority to enforce its laws against those who would disobey them is not a government at all, but a debating society.
As Learned Hand said, “[r]evolutions are often ‘right,’ but a ‘right of revolution’ is a contradiction in terms, for a society which aknowledged it could not stop at tolerating conspiracies to overthrow it, but must include their execution.”
How could the constitution provide for the punishment of Treason and recognize the right to commit it?
February 17, 2010, 6:32 pmThales says:
McCourt: Some political theorists and U.S. constitutionalists would distinguish between “revolution” (in the Locke-Jefferson sense) and “rebellion” (in the . . . well, CSA sense) [maybe there's a third category for Velvet secession, per EV], but I think that’s largely decided in hindsight by the victorious parties.
February 17, 2010, 7:04 pmLupus Wonderboy says:
The Constitution is not the only document that pertains. Our Declaration of Independence states, “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.”
February 17, 2010, 7:05 pmNobody Really says:
Seriously, though, how about Article V? If you don’t like being in it, amend the constitution to get out. I think that specifically answers the question of if 49 states could kick out Maine. In fact it would take 34 to get the ball rolling, and 38 to make it official. But unless the Senate was abolished at the same time, Maine could keep its two Senators.
February 17, 2010, 7:17 pmjnheath says:
J. Scalia quoted “one nation, indivisible.” Notice he left out *under God*.
February 17, 2010, 7:22 pmCJColucci says:
But why arbitrarily limit the thrust of your point to procedure?
Because it’s my point. If you want to talk about something else, be my guest. If what you want to talk about interests me, I’ll join in.
February 17, 2010, 7:23 pmCJColucci says:
David McCourt: I don’t think we actually disagree, so perhaps I wasn’t clear. Of course the Constitution does not recognize a right to revolution, which would, indeed, be a contradiction in terms in a document of government. What I thought I was saying, and meant to say, is that the Constitution doesn’t address revolution, just as the rules of football don’t address home runs. Revolution is outside the rules, and is justified, if at all, by success or public opinion, not by the charter of government. Though I suppose that a constitution could provide for a means of peaceful exit, consensual or otherwise, just as a contract can provide for unilateral termination. Ours doesn’t.
February 17, 2010, 7:30 pmOn Justice Scalia’s Letter About Secession | Liberal Whoppers says:
[...] the article here: On Justice Scalia’s Letter About Secession [...]
February 17, 2010, 7:32 pmDavid McCourt says:
Thales, What some theorists would say and what any government would do are two completely different things. I don’t think anyone going down to the federal courthouse tomorrow with a grenade launcher and a copy of the Declaration of Independence is going to have the government recognize his legal right to get all Jeffersonian on them, or to have much patience with his attempt to say he’s committing Lockean revolution, as opposed to ol’ Jeff Davis rebellion. Try filing a declaratory judgment action first, and see where that gets you.
LW, The Declaration of Independence is a historical document in the way of political explanation and justification, and a statement of small “l” liberal political theory, but provides no legal basis for anything. What it is defending are extra-legal remedies that can’t by definition be approved by any government on the receiving end. It may pertain, but not in a legal sense.
My question is: if the government (hypothetically speaking) becomes so “destructive of these ends,” why would anyone want to look to it for “legal” permission for acts taken to overthrow and destroy it? Kill Daddy if you must, but don’t ask him to smile and pat you on the head while you’re doing it.
February 17, 2010, 7:40 pmPhil says:
There are probably people better versed in 18th century treaty law but I recall that perpetual treaties were silent on how they end and any breach at any time meant war, whereas only treaties that could end, stated the procedure (or time limit) for ending them.
February 17, 2010, 7:51 pmAndrew H says:
Yet another textual command that secession is unconstitutional: the Fourteenth Amendment says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Thus, if you were born in the United States, you are still a citizen of the United States. That precludes stripping people of U.S. citizenship via secession.
February 17, 2010, 8:17 pmBart says:
I’m not sure it matters whether there a state may constitutionally secede.
Suppose it can. Since the United States has the power both to declare war and to admit new states, it could go to war against the seceding state in order to acquire it as a new state – albeit with the same name as the one that seceded.
And if during this process the United States says – regardless of whether it is true – that the state never seceded in the first place, why would it matter? When the Civil War ended, the Confederate states lived under federal control – just as if they were territories – until they each were “readmitted.” Would anything have been different – constitutionally – if the United States had treated them as newly admitted states instead of as newly re-admitted states?
February 17, 2010, 8:40 pmJohn Herbison says:
Whenever I see the phrase, “tit for tat”, I recall Dennis Miller’s inquiry: What’s tat? Where can I get it? And how can I exchange it for the other?
February 17, 2010, 8:45 pmBart says:
A corollary to the above: if a state could militarily repel (or economically or politically deter) an effort by the United States either to “acquire” or “re-acquire” the state – then it is of no consequence whether the secession was constitutional.
If Great Britain had intervened in the Civil War to allow the Confederate States to repel the United States, then it wouldn’t matter whether they had constitutionally seceded. Might doesn’t make right, but it – along with money – does determine what happens.
February 17, 2010, 8:48 pmButternut says:
Wow. Uh. Please, you must all be kidding, right?
You actually believe you are going to argue over secession in a constitutional or, heaven help us all, a judicial venue?
The good Justice is amply aware of that fact.
Wow.
February 17, 2010, 9:52 pmGregatUGAlaw says:
Should Scalia have responded to the letter? It seems like he is issuing an advisory opinion. I remember hearing the Supreme Court refused to tell Jefferson (then Secretary of State) whether a proposed treaty with France would pass constitutional muster because it was not an Article 3 “case” or “controversy.” Should the bar on advisory opinions have applied to the screenwriters letter. I can see some means of distinguishing (not a political division asking for advice and that the most recent letter was meant for literary and not political use). I thought I would throw it out there anyway. Any thoughts?
February 17, 2010, 10:26 pmJoe Hooker says:
Just a clarification on “Appomattox.”
The Late Unpleasantness did not come to an end on April 9, 1865, at Appomattox Court House. This marked only the surrender of the Army of Northern Virginia. The remaining Confederate forces east of the Mississippi did not surrender until May 4 at Citronelle, Alabama. Jefferson Davis was captured a few days later on May 11, and the last organized Confederate force under General Stand Watie did not surrender until June 23 in Oklahoma. Sporadic surrenders of smaller commands and guerilla groups continued until late in the year. The Confederacy itself never formally surrendered, it simply collapsed.
February 17, 2010, 11:24 pmMark Field says:
There was such an incident, but IIRC it involved a question about US neutrality under existing treaties and international law, not a new treaty.
February 17, 2010, 11:38 pmathEIst says:
Because Congress required the confederate states to apply for READMISSION, does that not mean those states had legally, although militarily unsuccessfully, seceded?
February 18, 2010, 12:29 amFat Man says:
So, Eugene has joined the make it up as we go along school of constitutional jurisprudence. Why does he study or teach law, if the whim of the moment controls everything?
February 18, 2010, 1:25 amepluribus says:
But this very issue was argued and decided by the Supreme Court in Texas v. White (1869). That was a judicial venue. The good justice does not appear to be amply aware of that fact.
February 18, 2010, 7:15 amOn Justice Scalia’s Letter About Secession « Secession and Nullification — News & Information says:
[...] Justice Scalia’s Letter About Secession Posted on February 18, 2010 by Bill Miller This article by Eugene Volokh on Volokh.com [E]ven if there is some precedent of some sort properly set by the Civil War (and I continue to [...]
February 18, 2010, 7:57 amPersonFromPorlock says:
It may be worth pointing out that a constitutional question decided by force of arms is always liable to being overturned by superior force. For Scalia to cite force majeure as decisive is for him to admit that the Court does not have the right to the final say.
February 18, 2010, 9:56 amMark Field says:
No. It just means that their governments needed Congressional approval. The state, as such, never left the union, but the government is not identical to the state.
Sure, but King Philip has been waiting a LONG time for the mandela to turn.
February 18, 2010, 10:17 amChris says:
First, if brute force could settle legal questions then there would be no need to have courts, cage fights would be much better. Second, from a legal perspective if it is unconstitutional to secede even though the Constitution is silent on the matter, then it was certaily unconstitutional for the states to secede from the Articles of Confederation which plainly stated the Union was perpetual. Therefore, since the states did secede from the Union under the Articles to form the one under the Constitution, under Scalia’s and your opinions, our entire government under the Constitution is illegal and we should thus return to the government under the Articles.
February 18, 2010, 10:17 amRexx Shelton says:
It occurred to me that there is a way for states to secede from the union without the Supreme Courts having a thing to say about it. That is by having a Constitutional Convention, and giving the right back to the states to secede under certain circumstances.
February 18, 2010, 11:13 amAndy McGill says:
The interesting legal question would be if Congress enacted a statute that directed or allowed a state to succeed, would it be Constitutional?
February 18, 2010, 12:28 pmA. Dawson says:
I view the right of secession as a natural right of the states. The concept that a state can be held, literally, at gun point, in the union is a totalitarian idea. All contracts are be voluntary ones. An involuntary contract is not a contract… it is usurpation.
So, it doesn’t really matter what the courts think about it especially since the Constitution didn’t really say anything about it in particular especially at the time of ratification.
The Civil War was wrong and injust. It is the a case where two wolves and a lamb voted on what to eat for lunch. The vote didn’t go the lamb’s way. The lamb simply wanted to dissolve their relationship with the wolves but the wolves wouldn’t have it. Even though the lamb was armed it wasn’t enough and the lamb was enslaved by the two wolves.
The question posed is somewhat silly in way. Why would we care what the wolves thought about the lamb’s right to secede?
This leads me to conclude that it is a natural right.
February 18, 2010, 2:58 pmPhil says:
Sorry A, states don’t have natural rights – they don’t come from nature; they are artificial.
February 18, 2010, 3:50 pmRob in CT says:
The Confederacy = a lamb, ENSLAVED by wolves.
That’s absolutely hilarious.
The Confederate states threw a colossal hissy fit because they thought the results of a Presidential election might mean the federal government would take away their right (was that a “natural right” by the way? Hah) to own slaves (or simply prevent new slave-owning states from being created). Ah, what a noble lamb.
edit: I’m actually conflicted on the question of secession. I’m sympathetic to the idea that states should be able to leave if they want to. Of course, that necessarily raises the sorts of questions that were raised back in 1860. What happens to federal land, miliary installations, etc? It’s not a simple thing, leaving the Union.
February 18, 2010, 3:54 pmA. Dawson says:
I suppose you think our natural right of self defense doesn’t come from nature either? At what point exactly do you think it would be justified for a state to defend itself from an oppressive federal government? Secession may be impractical and “not-worth-it” right now, but that doesn’t mean a state doesn’t have that right even if it is not codified and enumerated in the Constitution.
At the time of ratification certain states had to be *convinced* to join the union. But now they can’t leave? What about the descendents of the ratifiers? They didn’t agree to the union contract… but they are bound it for eternity? Doesn’t smell like liberty to me. I haven’t read the works of Lysander Spooner, but the more I think of it, the more I think I’d probably agree with his views (even if some of them are impractical).
I think it would have been good for the framer’s of the Constitution to include a right-of-secession clause in the Constitution. Although such a clause would be illogical (in the sense that an oppressive federal government would ignore that clause) to have it would at least help inform succeeding generations where the issue stands. Unfortunately, they didn’t and now the issue is debated in some semi-obscure corner of the internet.
The fact remains… any entity has a duty to itself to rebel if they are being enslaved.
TJ said it best in the Declaration…
February 18, 2010, 4:22 pmA. Dawson says:
I never claimed the “lamb” was noble… but it is their right to secede.
I think of secession sort of like divorce. It may be an unhappy process and deciding what to do with assets and the children and the divorce may not be in the best interest of either party. But it is their right. No one should be indefinitely held to such a contract by having a gun put to their head. To say there is no right of secession to to say that wives can’t divorce their husbands and their husband have the right to chain them in the basement until they become more docile.
It’s wrong. I wish I could say it is un-American. However, ever since the Civil War an “indivisible” nation is our standard ideology that flies in the face of states rights AND individual rights.
The South’s biggest mistake was the attack on Fort Sumter. Having fired the first shot… well… it hurts your argument. Then again, the South knew that there wasn’t going to be any COURT or JURY that was going to be reviewing and deciding their plight. They did what they thought they had to do.
February 18, 2010, 4:31 pmA. Dawson says:
I would add that the British might have had the same reaction… that they colonists were throwing a colossal hissy fit because they didn’t want to pay the taxes levied by the British parliament. I mean after all, the Brit’s were just trying to recoup their costs from the French and Indian war to defend the colonists at the cost of British money and British lives. Those ungrateful colonial bastards…
February 18, 2010, 4:51 pmA. Dawson says:
Scalia’s letter:
I think Scalia’s letter reinforces my point… especially the part where he says: “But the United States cannot be sued without its consent, and it has not consented to this sort of suit.”
My interpretation of what he’s saying is that there is no arbiter on the subject of secession. The government has the ability to be oppressive and majority of the people support it… the minority has a simple choise… take in the shorts… or try to leave. This is not an issue that can be solved by legal precedent or Constitutional scripture.
February 18, 2010, 4:59 pmathEIst says:
If you don’t think the South(lamb)wouldn’t be fleeced by the tariffs to come once there were more northern states, and if you don’t think the northern industrialists weren’t wolves, you are mistaken.
February 18, 2010, 5:00 pmWho won the War Between the States? Northern industrialists.
A. Dawson says:
The subject at hand is whether or not their is a “right” to secede… not whether or not it is practicably feasible, whether or not it is a good idea, or whether one side is more treacherous and capable than the other.
Certain law professors are trying to find a Constitutional basis to determine whether or not such a right exists.
My point of view is that it doesn’t matter if it exists or not. If a state is attempting to secede because of an oppressive supermajority… it won’t matter whether or not there is a legal basis for doing so. This is because even if such a basis existed, the supermajority could ignore it, no Court could stand in their way.
February 18, 2010, 5:23 pmML says:
I thought it was weird that Justice Scalia referenced the pledge. I mean, it’s essentially a statute (4 U.S.C. §4). It may be interesting, but is it relevant what Congress thinks?
February 18, 2010, 5:29 pmA. Dawson says:
What Congress thinks is very relevant… it is they who would initiate a war on the seceding states. No court could stop them.
February 18, 2010, 5:33 pmarbitrary aardvark says:
The case would be governed by a treaty between canada and the us, which the court would have jurisdiction to interpret. Does Maine have the Qbomb?
February 18, 2010, 6:34 pmA. Dawson says:
Does it matter??? The selected Court might get to the issue by the time the gun smoke settles. It would be a day late and a buck short.
Do you think a supermajority in a government would care what a Court thinks if they are willing to kill to preserve the Union? Would the Court even have police powers to put their ruling in effect against the will of a supermajority?
The proposed situation is sort of silly really. It would play out like this.
Supermajority: We mandate X.
Minority: X is unacceptable under any conditions, if you insist, we secede.
Supermajority: You WILL comply with X.
Minority: We’re done with you. Have a nice day. We’re out of here.
Supermajority: Wait… you can’t leave yet… we’ll sue you and take you to Court.
Minority: Take your stinkin’ Court and shove it. We’re done.
Supermajority: (thinking…)
Supermajority invades the seceding states causing massive destruction and loss of life. And mandating X and that the minority pay for X by constitutional amendment.
Minority: This f*cking sucks…
I believe this is why the southerners refer to it as the War of Northern Aggression.
February 18, 2010, 6:45 pmML says:
True, I should have said relevant to the constitutional question, not the force issue. Congress doesn’t decide what the Constitution says.
February 18, 2010, 8:29 pmPhil says:
No, A Dawson. I think that you use words, when you have no idea what they mean. (BTW, individual persons do have natural rights.)
February 18, 2010, 8:37 pmButternut says:
epluribus, let us get something very clear. The judiciary exists within a society at ease. If for one moment you think a truly attentive populace will submit to the will of 9 unelected arbiters on questions of true importance then I gotta a bridge to sell you.
February 18, 2010, 10:43 pmathEIst says:
I was responding to the ridicule heaped upon “lamb and two wolves,” which ridicule was not deserved. It is an accurate appraisal.
February 19, 2010, 12:36 amA. Dawson says:
I wish I could agree with you. Unfortunately, Congress continues to produce actions that far exceed the scope of what their true constitutional powers are. SCOTUS hasn’t been a very good goal keeper and more and more of our constitutional protections has been watered down. When they do intervene, it’s a day late and more than a buck short. I am not impressed with the Court’s opinions.
Simply put, there is no substitute for electing the right people to Congress. The executive branch will alway seek to expand its powers. SCOTUS hasn’t done a great job of stopping these things.
So it doesn’t really matter what the Constitution says if no one understands or plays by the rules as they were intended. They violate the Constitution now… does anyone here actually think these institutions are realistically going to engage on an esoteric discussion over the legality secession? Unfortunately, I don’t think they will. Especially when the Constitution really doesn’t discuss it.
February 19, 2010, 12:42 amLurker says:
What kind of remedy could a state demand from the other 49 states? The remedy mandated by SCOTUS cannot extend further than the powers of the plaintiffs. Allowing the secession would require also federal action, not only state-level acceptance. The states cannot, even together, have a right to legally require their representatives and senators to pass a law allowing the secession. Neither can the home state of the president require certain executive actions from her citizen, i.e. Illinois cannot make a law requiring Obama to make some particular decision.
Thus, even accepting the chance that a state would sue the 49 other states, and win in SCOTUS, the remedy would have to be less than secession.
February 19, 2010, 9:57 amMark Field says:
I can see why you think this (Dred Scott and all didn’t work out so well for your side), but you may want to coordinate your arguments with your fellow-travelers a little more. Half the people upthread are telling us that wars never settle legal disputes, while here you’re telling us court cases can never settle them.
February 19, 2010, 10:20 amRob in CT says:
“I would add that the British might have had the same reaction… that they colonists were throwing a colossal hissy fit because they didn’t want to pay the taxes levied by the British parliament.”
An important difference was representation. You know, “no taxation without representation!” The Southern states were represented just fine. In fact, they had dominated the politics of the Union initially. They didn’t like it so much when the free states started to gain more political power (though Lincoln’s victory was due 4 candidates splitting votes more than it was Northern ascendency, I think).
I do think that a state should be able to leave (the nuts and bolts of how to do so amicably is tricky, but could be done). I wish the Constitution provided for secession. But it doesn’t, and the result was a bloody war. Anyway, the lamb/wolf thing was just laugh-out-loud funny to me. The Confederacy was no lamb. I reacted to that, but that’s not the core of your argument, so I think we should let this drop.
athEIst: so the North and South had differing economic interests. Ok, so do the urban and rural areas of any given state. Both areas of the country had representation. Southern interests (or, I could say the interests of the Southern ruling class, who to my eye were even more wolfish than the Northern industrialists you mentioned) were well-served by their representatives for the first ~70 years of the Republic. But then they lose one election and the sky is falling. Having read a fair amount of the ante-bellum period, I don’t really buy tarrifs as a convincing root cause. The politicians who led the movements to secede were quite clear that their motivation was the preservation of slavery. Lincoln’s victory sent them into a frothing rage. Why? His abolitionist leanings.
February 19, 2010, 11:56 amA. Dawson says:
Just because the Constitution doesn’t have an explicit provision for secession, doesn’t mean that it would be unconstitutional. I suspect the reason the clause doesn’t exist is because the framer’s probably realized that such a clause would be silly. After all, they had just put forward a Declaration of Independence and fought a Revolutionary War. Under the context of a despotic central government, they probably saw a secession clause as being moot.
I would add that the “taxation without representation” argument in the case fo the rebeling American colonies doesn’t really hold much weight. If the British parliament had conceded representation to the colonies and given them a token of representation in parliament, that political argument would have been defeated. Parliament would still have enough votes to pass the levies on the colonists. This particular argument would then fail.
Here’s the conundrum when it comes to secession…
If the supermajority is of the a mindset (“that a state should be able to secede peacefully for whatever reason”) then such secession clause would work and might be superfluous. However, secession would be less likely when such a tolerant and respectful mindset exists in the supermajority.
However, if the supermajority is of a different mindset (“preserve the union at *all* costs*) then a secession clause would be ignored or repealed. Secession would be more likely under these circumstances because some states would be “getting the shaft” by the supermajority under this circumstances.
In either case… its unlikely that a Court could stop secession or a war to stop secession.
February 19, 2010, 12:10 pmohwilleke says:
The Luther case is quite trippy. The facts, as related in the opinion are as follows (paragraph breaks added for ease of reading in blog comment form):
No kidding. Notably, the decision was entered with three justices not participating and another dissenting, and the majority opinion by Justice Taney is not very well reasoned.
At any rate, the history of the whole incident is a great surprise and worthy of a movie treatment.
February 19, 2010, 5:02 pmathEIst says:
Of course there was his abolitionist leanings, but he was a Whig(now purged of Southerners and calling itself Republican) which had brought the South(before Lincoln’s time) the Tariff of Abominations and would do so again as soon as it could.
February 19, 2010, 10:06 pmLook at the tariffs after the War. They impoverished the South(and rural America) and ushered in(financed) the Gilded Age. Wolfish is unfair to Wolves.
athEIst says:
P.S. We usually refer to those Northern industrialists as ROBBER BARONS!
February 19, 2010, 10:11 pmMark Field says:
The so-called “Tariff of Abominations” was passed before the Whig Party even existed. It was actually introduced by Southerners as part of an overly complicated “poison pill” strategy which backfired.
February 20, 2010, 3:39 pmathEIst says:
Technically true
In an elaborate scheme to prevent passage of still higher tariffs while at the same time appealing to Andrew Jackson’s supporters in the North, John C. Calhoun and other southerners joined them in crafting a tariff bill that would also weigh heavily on materials imported by the New England states. It was believed that Adams’s supporters (Whigs) in New England would uniformly oppose the bill for this reason and that the southern legislators could then withdraw their support, killing the legislation while blaming it on New England:
Adams and Clay later formed the Whig Party. Southerers knew who their enemies were whatever they were calling themselves now.
February 21, 2010, 1:20 amJaimeInTexas (Jam) says:
My initial raction without reading the posted comments above (I will read them later) is a question: what if Scalia had answered in the affirmative?
I guess he, like the rest of the bunch thnk that the 9th and 10th amendments are dead.
Another mental exercise: how would the secession question been answered while under the Articles of Confederation, or within the first 25 years after ratification of the Constitution of 1787? Are there Constitutional questions, not addressed by subsequent amendments, that have different answers depending on the date of the question?
Did the Federal government have the authority to require background checks (for gun purchases) in 1789, 1790, 1791, …?
February 21, 2010, 10:15 amJaimeInTexas (Jam) says:
“There’s no procedure for secession”
Wrong way to look at it. There is no procedure to prevent secession is the correct way to look at it. No delegated authority to prevent secession, no authority to stop secession.
When the first two of the united Colonies under the Confederation ratified the new proposed Constitution they were out of the Confederation compact. What was the remedy against them seceding the Confederation? None.
February 21, 2010, 12:24 pmRexx Shelton says:
Actually it was the Andrew Jackson’s supporters, bent on taking the election later in the year, sought to exploit president Adams’s weakness. The pro-Jackson forces thus sought to present their candidate to the South as a free-trader, and to the North as a protectionist. In August 1827, delegates to a convention in Harrisburg, PA signed a petition to force Congress to do something about the grievances of both farm and manufacturing interests by increasing tariffs. The northern states were generally in favor, but southerners weren’t because the higher tariffs meant higher prices for the manufactured products they didn’t produce themselves, while southerners also felt Great Britain and France would retaliate on items like cotton, forcing the region into poverty.
The Virginia Senator John Randolph characterized the Tariff of Abominations as a measure truly concerned with no manufacturers except the manufacture of the next president of the United States. While Randolph’s Virginia colleague, Senator Littleton Tazewell, supposedly said to Senator Martin Van Buren, a key figure in passage: “Sir, you have deceived me once; that was your fault; but if you deceive me again the fault will be mine.”
Vice President John C. Calhoun, however, was provoked and South Carolina’s leading statesman wrote his “South Carolina Exposition and Protest” in response. This argued that a tariff for protection rather than for raising revenue was unconstitutional; passage thus left his state no alternative but to assert its right of “interposition” against the “despotism of the many.” In other words, Calhoun was raising the principle of “nullification.”
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