Actually Scalia is wrong….the States can secede. His premise is the Civil War showed us there is no right to secede….that is crazy for a man in his position to make such a statement and he is dead wrong. The only thing settled by the civil war is that the federal government will murder it’s own people to squash dissent.
But could it actually happen? Do states even have a right to secede anymore? The answer, according to arguably the most respected conservative Justice of the United States Supreme Court, is an unequivocal “no.”
Over at New York Personal Injury Attorney Blog, author Eric Turkewitz recounts an interesting story of how his brother, a screenwriter, managed to apparently coax an answer out of Scalia on precisely this topic:
Dan is a screenwriter (whose screenplay Tranquility Base was just named a finalist at the Vail Film Festival, and previously took top honors elsewhere). Back in 2006 he started working on a political farce that had Maine seceding from the United States and joining Canada.[…]
So, on a lark, he wrote to each of the 10 Supreme Court justices (including O’Connor) with this request:
I’m a screenwriter in New York City, and am writing to see if you might be willing to assist me in a project that involves a unique constitutional issue. 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.
At the moment my story is a 12 page treatment. As an architect turned screenwriter, it is fair to say that I come up a bit short in the art of Supreme Court advocacy. If you could spare a few moments on a serious subject that is treated in a comedic way, I would greatly appreciate your thoughts. I’m sure you’ll find the story very entertaining.
I told Dan he was nuts. I told him his letter would be placed in the circular file. And then Scalia wrote back. Personally.
And what did Justice Scalia say? Pretty much that not only could Maine not secede (ironically enough, Maine is one of the three states that has no secession petition on the White House website), but the question is so firmly settled that it could not even get a hearing before the Supreme Court, because the United States government would refuse to entertain it:
I am afraid I cannot be of much help with your problem, 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 am sure that poetic license can overcome all that — but you do not need legal advice for that. Good luck with your screenplay.
So there you have it. No right to secede exists (according to Scalia that is) , and residents of those 47 states are just blowing smoke. Nevertheless, it says something that the topic seems to come up every time a polarizing president is reelected.