But the man has a sense of humor. Responding to a screenwriter’s letter asking how the Supreme Court would respond to Maine’s theoretical secession:
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.
Awesome. But I think Scalia might actually be wrong on the last point: sovereign immunity need not bar a suit against the government to enjoin an illegal war, when phrased as a suit by a seceded state against, say, the Secretary of Defense or the Army. See Ex parte Young, 209 U.S. 123 (1908). Of course, to maintain the suit, the plaintiff seceded state would have to concede its rights under American law, thus instantly revoking its secession. But then again, wouldn’t that concession also terminate the war? Of course this all assumes the state could surmount the political question doctrine. Huh.
It’s best not to think about it. Maybe the answer is just that secession isn’t a good idea.
Another plus to come out of this letter: if there was any question, we now know how Scalia, and thus the Supreme Court, would resolve any controversy over secession, that fevered dream of tea party “patriots.”