Skip to comments.Antonin Scalia: No right to secede
Posted on 02/17/2010 9:08:09 AM PST by Palter
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I also firmly believe that if the south had won the Civil War, they'd have been celebrating their gloriously successful revolution and the brave boys who fought for independence and not continuing to gripe about how the US had no right to oppose them.
Except, Mr. Justice, if the States ratified a Constitutional Amendment that allowed secession! What idiots.
And yet the Constitution gives the government the power to suppress insurrections. If I'm leading an insurrection, what are the magic words that make it illegal for the government to oppose me?
Geez, he talks the talk, but the walk, not so much, eh?
Might there be a difference between an insurrection of individuals and a decision by a state, one of the parties to the original agreement that bound them together, to withdraw? When nations make treaties with one another, if the other party fails to live up to their responsibilities, or if the one nation simply feels the agreement is no longer in their best interests, they can repudiate it, after giving notice to the other parties. Why would this be any different from that?
Scalia is legally and morally correct.
The CSA is an example of a “failed state”. The civil war decided the issue. The confederates failed to establish a seperate nation. The USA is firmly correct in opposing secessionists.
This is no different than tax nulification nosense that is passed in state legislatures.
If employers refused to withhold taxes from employees and employees refused to file voluntary taxes who would pay the military anyway?
The 10th amendment has no “opt-out” provisions.
The constitution explicitly provides for new states, including rules for joining states, or for splitting states.
The constitution says NOTHING about a right for a state to leave, or the rules under which a state could leave.
If they wanted to allow a state to leave, they could have easily included a clause describing how a state could leave.
It doesn’t seem that even a vote by congress and a vote by the state would be sufficient to allow a state to leave. It seems you would need a constitutional amendment, either explicitly removing the state, or defining the method by which states could leave.
All the states are interconnected. You can’t just let a state leave — that state has had federal protection for years, meaning all of our tax dollars have been dedicated to the aid of that state, and also a lot of tax dollars have gone into things built in the state, and to people of hte state, based on our shared union.
So it makes sense that you would need all of the states together to allow a state to leave, which a constitutional amendment process would provide.
I wouldn’t want a state to be allowed to leave on their own vote, nor would i want the feds to be allowed to kick out a state on a majority vote. We are all in this together.
Governments govern only by the consent of the governed.
“By right of conquest” is just a matter of persuading the governed to consent.
Revolution is just a matter of the governed denying their consent.
War is just the process of determining consent (or lack thereof).
I hope Dan wasn't deterred from writing the screenplay. Sounds like an interesting movie, and the comments on this thread suggest it's particularly relevant at this time.
With the socialists in power it would make more sens to appeal tot he U.N. on this issue than the Legislation in Washington, sadly....
Maybe something more akin to the splitting of the Czech and Slovakia compared to the civil war...
However, there is a difference between right and law, as our Declaration of Independence makes plain in the context of providing a logical and practical justification for the American revolt against British rule:
"...governments are instituted among men, deriving their just powers from the consent of the governed." (But) "whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government..."
At the same time: "prudence, indeed, will dictate that governments long established should not be changed for light and transient causes..."
"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."
That sounds very much to me like an expression of natural law, but not a deterministic one in the sense that the validity of those propositions depend solely upon their successful achievement.
Rather, the words above are intended to express an objective standard for the maintenance of self-governance under duress, which may be summarized in this way:
People have a natural right to be free and choose their own form of political organization, significant alterations to which ought not be made easily or due to temporary circumstances. But if their government demonstrates a pattern of behavior for which the sole rational explanation is a desire to impose tyranny, the people then have both the right and a duty to act to establish a new government.By the standard expressed above, in both original and derivative forms, I think we have as yet fallen far short of the standard for revolution. The right of states as sovereign entities in our Federal Republic to secede from the Federal government is a much broader matter. I think the standard ought to be something higher than a majority vote of state legislatures and for something truly immutable in the absence of withdrawal from the Union. After all, it really didn't work out too well the last time.
That argument is invalid. The citizens of that state paid federal taxes during the years in which the feds were building stuff in their state. If they're no longer to be one of the United States, both their tax payments and federal projects will cease, so 100 years after secession, there never will have been any period with projects and no taxpaying, nor with taxpaying and no projects.
It's not reasonable to say that to secede, a state must repay all monies ever received from the federal government. A portion of THEIR money was used to fund projects in OTHER states too. If they were somehow responsible to pay back all that money, even though they were paying taxes during that period, they would also be entitled to a refund of the money they paid out that built stuff in other states, yet no one ever seems to want to think about that.
And as I pointed out, the body of the Virginia legislature that remained loyal to the Union and which was recognized by the Congress as the legitimate legislature of Virginia did vote to partition the state. The letter of the law was followed if, perhaps, not the spirit.
FWIW Lincoln had his doubts on the legality of West Virginia's admission but the president has no constitutional role in admitting a state so there was nothing he could do about it.
Or not. The Supreme Court of the Soviet Union was created by the Soviet Union - there was no corresponding institution under the Tsars. The U.S. Supreme Court has a 220 year history of judicial independence which would not sit well under a totalitarian form of government.
They do? Would you mind dropping them an email on this? I think they may have forgotten.
do not forget that those back in that time were called traitors by the majority because they dared to stand against a Govt who was taking advantage of them.
My grandfather who died 10 years ago at age 100 said his grandmother talked about Union soldiers who were at the voting places and turned away men who were not going to vote secession from VA. I didn’t think that could really have happened but former governor Caperton says basically the same thing in a history of WV that he authored.
nail on head
say TX or my state FL said to hell with DC we’re going it alone and then GA, TN,SC,NC, OK, LA,UT,AK, say we’re joining.
Well we know those states together would be bale to set up their own country as they have all the energy, airports, infrastructure, cities and food they need .
Ofcourse states like MA,NY,VT,ME,DE,MD,IL, would not be happy so what happens now?
Is bozo going to invade like Lincoln did and kill hundreds of thousands, rape, steal from people to make them stay in a country they do not want to?
The elitists would be crying and moaning but today most of them would not have balls to fight.
The war would be very different today too
thanks for the ping and that is some great info, shame it will be missed and ignored by some
When Virginia held its secession vote in May 1861, the people in what became West Virginia voted overwhelmingly against secession by a 6:1 margin. There is no doubt that the overwhelming majority of the people in West Virginia were unionists.
You left out part (as usual):
"except through revolution or through consent of the States"
“Hey stupid at the supreme court! ... Like it or not , pig.”
I am also angry... but how do we convince voters to join us in restoring the Constitution?
Yeah that revolution part really worked for you, didn't it?
It’s possible that this happened in pockets, but the 55 counties in Western Virginia were largely against secession, immediately called a confernce in Clarksburg to discuss severing its ties with Richmond, within two months had declared secession void, and it had declared an independent government by June 1861. The statewide vote for creating a new state was 18:1 in favor. By 1862, it was on its way to statehood.
Granted, this was probably all unconstitutional, but there was never any reason for West Virginia to remain part of Virginia.
Knight of the Golden Horseshoe, 1987.
Oh, I'm sure they thought up some justification for doing what they wanted to do anyway. But that doesn't make any logical sense. The same body cannot be both the original state, and the portion that wants to break off.
True. If I recall, they wanted to secede from Virginia even before the Civil War, but Virginia refused.
Your comment it totally irrelevant to this thread and is simply just more of your 'trolling', which is the reason why I would ban your ass in a second if I were a mod.
But yet they seceeded from Virginia.
Kinda hypocritical, wasn't it?
I didn’t say it was reasonable to ask for a repayment. I’m saying that it is unreasonable to think you can simply untangle a state from the union of the states. States are not independent entities which have some trivial “membership” in a club that they could quit anytime they want. They are an integral part of the whole that is the “United States”, one nation under God, Indivisible.
Oh OK, I see what point you were trying to make. Thanks for the clarification.
I believe 32 states currently disagree with you and your assessments.
The Constitution is specific and didn’t require 2000 plus pages of ambiguity. The reason there is no specific procedure for a state to opt out is because the process is retained by each individual state and not by the Federal Government.
There is no specific right of the Federal government stated in the same Constitution other than national defense, interstate commerce, and diplomacy. All other rights are retained by each state according to it’s own unique State Constitution. The individual sovereignty of each state is determined by the people who reside within. That is why there was no specific circumstances within the 9th or 10th Amendment spelled out as a federal provision. The state(s) retain the power to identify unique circumstances of federal encroachment as defined by the people of said state(s).
The government has become a clearing house of the redistribution of taxes to states,but there is nothing in the Constitution that allows that behavior. Using our confiscated wealth (taxes) to enrich special interest and enterprise within a state is not a specific power enumerated to the Federal government by the Constitution.
Using the argument that the states are forever indebted for services they did not ask for is in no way a binding contract. Business interests and associations change all the time because nobody is forever obligated to binding circumstances because of past business associations.
Review of law by precedent (distribution of federal tax money) rather than original intent does not obligate a state to forever be bound to the federal government.
The use of the public trust to buy favor is not a federal power found anywhere in the Constitution either.
Consider that most of the schemes government uses to distribute tax proceeds to the state are not granted by the Constitution, but have been made rule by executive order or legislation with less than 2/3 of states approval, which is what is required for any constitutional amendment that changes the statutory provisions of the constitution.
America is a Constitutional Republic because of the 2/3 majority required for those statutory changes in the Constitution. Where was there an amendment in the Constitution ratified by a 2/3 majority of states that changed our legislative process to a Simple majority (democracy)?
The key to the sovereignty problem is that judicial process no longer is based on founding documents, but case law precedent. Getting back to the original founders intent (The Federalist Papers) clearly identifies the federal government has gone far and beyond their original specific contract with the states.
West Viriginians saw themselves as part of the Union more than part of Virginia (which culturally, economically, and geographically, the western part of the state was completely separate from Richmond).
The way I always viewed it is that Richmond seceded from us. (I was born there).
I have always thought that West Virginia should have become “Virginia” during and after the war and the remainder of Richmond’s territory should have been called “East Virginia.”
The Union regiments from West Virginia at Antietam were called “Virginia” units. We should have gotten the name in the divorce - like Tina Turner did.
If we had a Marxist dictatorship, the Constitution would be by very definition trashed. Even if there were an enumerated or implicit right to unilateral secession in the Constitution, (which there isn't) the dictatorship would ignore that and attempt to impose their will.
That is when the people revert to their God-given Right to Revolution under Natural Law.
Well politicians are good at achieving their aims while at the same time not making sense.
“When in the Course of human events...”
The problem is... COTUS does specifiy the cure. SCOTUS protects the COTUS, and if SCOTUS fails, then congress should impeach them! So, the voters already have the power to clean up congress & then SCOTUS.
If only we could get a majority of voters to agree!
My thought is that the battle over rights to the interstate highways and federal parks would lead to the biggest law suit in the history of the planet.
A New Yorker would say, “Jesse Helms used my tax dollars to build that road in NC. I want it back.”
Actually it was your comment that was irrelevant since the topic of the thread was the right to secede, not the right to rebel. But I doubt you read that far to begin with.
...which is the reason why I would ban your ass in a second if I were a mod.
Which is the reason why you don't begin to meet the requirements expected of a mod, as I pointed out to you on another thread.
Not at all. The vote wasn't over the concept of secession. It was over whether or not to repudiate their ratification of the Constitution and leave the United States.
The people of West Virginia were perfectly consistent in wanting to remain in the United States, either as part of Virginia or as part of their own state. A state, by the way, which was something they'd been talking about since the Revolution but which Virginia, which held the power, would never allow.
It's Virginia that was hypocritical for demanding the right to secede for itself, but denying that same power to its people.
That’s true, and it was largely a matter of geography. Eastern Virginia is much more suitable for the type of large-scale agriculture that required slaves. Western Virginia and what is now the state of West Virginia is not due to the mountains, and there were relatively few slaves and slaveowners there. Plus, the western counties didn’t feel any particular attachment toward the planter aristocracy in Richmond and the Tidewater. The Appalachians, Blue Ridge, and Smokies were by no means friendly to the Confederates.
I’m not sure 100% of the accuracy of this story, but when I was attending James Madison University in Harrisonburg, a history prof I had said that Rockingham County, which contains Harrisonburg, stayed in Virginia by *one* vote, keeping all of the Shenendoah south of the Potomac in the Confederacy. The irony in this is that Rockingham County became part of two of the most famous military campaigns of the war—Jackson’s 1862 Valley Campaign (most notably the Battle of Port Republic, just outside Harrisonburg) and Sheridan’s 1864 response.
It always surprised me, as I studied history in school, how West Virginia didn’t break away from Virginia prior to 1862. Those western counties were always so distinct from the rest of the Commonwealth that in retrospect, it just seems obvious that there was no way to hold antebellum Virginia together, even throwing out Virginia’s secession from the Union.
I agree with much of the comment by Freeper FateAmenableToChange in #5. Scalia's larger point might be that he doesn't forsee this issue EVER making it to the SCOTUS, but why? Does he see it as being out of the jurisdiction of the courts or extra-constitutional for that matter? I would like to see him expand his thoughts on the subject.
Still in all I am just dumbfounded by his curious observation that the Civil War settled the matter of secession. It's as if after a single battle in a larger war against tyranny the loser is eternally obligated somehow to be under the heel of the winner. That the loser of a single battle and some other lesser skimishes cannot regroup, rearm and reorganize for a counter-attack just takes my breath away.
What you said.
I remember the big dig project in MA and me thinking why am I paying for that road up there when I am down here plus many of the unions were on the take with that project.
Actually I still wonder why the hell did my money pay for a project up in MA when I am down here
He’s not only full of it, if you check his past posting history, I think this newbie is a troll flying under the radar.
Even today, I try to explain life in West Virginia by saying, “Imagine Albania with a sadder history....”
The reason that Richmond kept control of the western counties is pretty simple - people and space. The western counties were about the same size as modern Virginia but modern Virginia had four times as many people. I can’t even begin to imagine how someone in, say, Roane County would ever get news out of Richmond in 1840. Even today, it would take 7 hours by car to get between the two.
So, there were not a lot of people who were spread out over land that only crazy people would try to live on. My guess is that Richmond didn’t exercise much day to day control over them.