Say What You Will About Tony Scalia…

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.”

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3 comments

  1. Couldn’t a state, having not yet seceded, sue demanding it be allowed to secede? Not that the outcome, as Scalia points out, hasn’t already been determined.

    Certainly, though, one would think that a state could secede through mutual agreement with (the majority of) the other states. If Texas said it wanted to leave the Union and the other states said, “sure, go ahead!” then who would do anything about it? As there is agreement, it would only take some paperwork formalities – some treaties, a constitutional amendment – and it’d be done.

    1. Hypothetically, I think alot of Democrats would go for it, thought the non-Texas GOPers might object to losing 34 reliable electoral votes.

  2. DickTurpis · ·

    Personally, I’d love to see the South secede. Years ago I drew the borders of the US as I’d like them, basically marked by the Potomac, Ohio, Missouri, and Colorado rivers, with a few ranges and artificial lines connecting them where they have gaps. The last thing I’d ever contemplate is going to war to prevent that from happening (I’d seriously consider a “Don’t Let the Door Hit YOur Ass on the Way Out War”). I’m tempted to think of the immortal lines of Phil Ochs: “Here’s to the land you’ve torn out the heart of/Mississippi find yourself another country to be part of”, just add the names of a dozen more states (though it would sort of ruin the meter).

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