New York Personal Injury Law Blog » Antonin Scalia, Dan Turkewitz, Secession


February 16th, 2010

Scalia: "There Is No Right to Secede"

The right of a state to secede from the nation is way outside my personal injury wheelhouse. But it has become a source of conversation on professorial and political blogs, and the concept has generated interest from the Tea Party movement.

As it happens, my brother has a letter from Justice Antonin Scalia that is directly on point as to the legitimacy of secession. How he got that letter, and its contents, are the subject of today’s post.

The inspiration for writing, and the release of the letter, comes from Prof. Eugene Volokh, who wrote, “I keep hearing the claim that the legitimacy of secession from the U.S. was ‘settled at Appomattox,’ and I wanted to say a few words about why I think that makes little sense.”

The good prof goes on to write that, while clearly not supporting secession of any State in concept, that the issue is far from settled. He writes:

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. 

Thus far, that post has generated 152 comments.

Well prof, Justice Scalia disagrees with you. Explicitly. Why did he do so in a letter to my brother? Glad you asked.

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.

Bro was well ahead of the tea partiers in contemplating impending problems as we racked up massive debt. This doesn’t get him an agent or a foot in the door of Hollywood to get his screenplays made into films — it isn’t what you write, but who you know — but it does make him a prophet of sorts.

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. Explicitly rejecting the right to secede:

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. At least one vote solidly on record as saying that there is no right to secede. And it likely comes from a place the right wing secessionists most wanted to have a vote.

And yes, Dan still needs an agent. Because writing great scripts isn’t enough if you don’t know The Powers That Be on the other coast. And, for what it’s worth, his now-completed script of Maine joining Canada is better than his award-winning one about a mis-adventure in space.

(Update:Welcome new readers…there seems to be a fair share of incoming to this little joint)

Update #2 –

Update #3: In November 2013, in the wake of the Obama-Romey election, this posting returned to the news.

Elsewhere on the issue of secession:

  • Secession in the Air (Patrick Buchanan)

    No, it is not 1860 again. 

    But with all the talk of the 10th Amendment, nullification and interposition, states rights and secession — following Gov. Rick Perry’s misstatement that Texas, on entering the Union in 1845, reserved in its constitution a right to secede — one might think so.

Nearly one-third of Georgia Republicans would be in favor of leaving the United States, its polling shows. Pause here for any ironic thoughts about the party of Abraham Lincoln that suddenly spring to mind.

  • Glenn Beck: Secession or Suicide (Jason Linkins @ Huffington Post)

    But you can’t convince me that the founding fathers wouldn’t allow you to secede. The Constitution is not a suicide pact. And if a state says, I don’t want to go there, because that’s suicide, they have a right to back out. They have a right. 

  • Texas v. White a Roadblock To Secession; But It Might Also Provide an Escape Route (Brian Stanley @ Lew Rockwell)

    In the 1868 case of Texas v. White, 74 U.S. (7 Wall.) 700, a case dealing with the title to some U.S. bonds, the Supreme Court ruled that Texas’, and hence the South’s, attempted secession in 1861 was unconstitutional. But the opinion also contained some wording that might give secessionists a way around White. 

82 thoughts on “Scalia: "There Is No Right to Secede"

  1. I'm all for establishing a "secession zone," where Teabaggers, religious fundamentalists, and nut cases of all sorts can come together and leave the Union. Texas would be an ideal location- it's big and roomy, and already has a political culture that is predisposed to batshit crazy conservatism. Let them go, we will be a better nation for it.

  2. Hence, in the Pledge of Allegiance, "one Nation, indivisible."

    That's funny, he doesn't know the new "under god" version of the pledge.

  3. Delightful!

    I had cited both the Civil War and the Pledge of Allegiance in a comment at the Conspiracy and I am pleased to see the Justice Scalia agrees (I am myself more frequently in agreement with the left side of the bench).

    Perhaps this is because secession is a regional, rather than a partisan issue in the United States, and Justice Scalia is a Yankee. His procedural point is also well taken.

  4. You misread Scalia's letter.

    Nowhere does he say "there is no right to secede." Rather, he says he cannot imagine a situation where the issue would be, or for that matter could be, resolved by SCOTUS.

  5. Scalia is talking about Texas v White. That case stated that Texas never seceded. But it's far from Airtight.

    Texas v White was in 1869, and was not about Secession itself, but a bond issue. The plaintiffs tried to have it both ways: That the bonds issued by Confederate legislatures were legit today, but that the current Federal military government had no reason to pay them. The case stated out of thin air that Texas was a part of the union from 1861-1865 and so the bonds were legit, but denied that the Federal goverment in Texas had any obligation to pay them. (The dissenting opinion is humorous.)

    The court continues that the Republic is indivisible. 'without revolution or consent of the states.' Now what does 'consent of the states' mean, no one has defined, but it exists in the case.

    As far as arguments in favor of secession, either the States did or did not.

    IF THEY DID, then all of the Fed's actions were Constitutional (because the Confederates were not part of the USA, they had no constitutional rights).

    IF THEY DID NOT, then please explain.
    – The existence of West Virginia (which violates Article IV, Clause 3)
    – How the Senate was able to vote and declare war without a quorum of members
    – How union troops being quartered in old ladies' homes (non combatants) was not a violation of the 3rd Amendment. If they are US citizens, they have US rights. How much is the reparation check?
    – Sames as above for Amendments 4, 5, 6, 7, and 8.

    It would've been legally simpler to just say the South was its own country for a while that was eventually reconquered, occupied, and admitted into the Union. That definately matches the practical real world events.

    Secession has more of a legal ground than I think Scalia is giving it. Texas v White can be overturned, and there's a clause even within the case itself that leaves the door for future secession open.

  6. To the anonymous fellow who mistakes patriotism for subservience, there is plenty of room for both secessionist sentiments and patriotism, and I have to wonder if he considers Benjamin Franklin, Thomas Jefferson, James Madison, and all the rest to be traitors, because by his definition, they cannot be considered patriots.

    No, a patriot is not a partisan adherent of a particular political arrangement. We call those people nationalists. A patriot puts his love of country over any love of nation or political system. A patriot is loyal to his people, his traditions, his history, and the soil for which he bleeds, not seats of office, or titles, or officialdom. That is the opposite of the true patriot. A patriot may stand up and defend the latter only when it serves the former.

    Secondly, this argument that a previously claimed right can be abrogation by the act of shedding blood has always puzzled me. How many other rights are we willing to let go if enough claimants of that right are murdered? If we kill enough newspaper editors, would that abolish freedom of the press? Would a mass execution, an Appomattox, if you will, of protesters be enough to eliminate freedom of speech?

    If enough abortion doctors are slain, would that be sufficient to overturn Roe v Wade?

    I hope others can see what a cockamamie rationale that is.

    The only way to determine the answer to the question is to determine which furthers the interest of liberty. China does not believe in political self-determination, particularly when it comes to Tibet, Taiwan, Xinjiang, and various other places it has subjugated by force. The founders did. That is all the answer I need.

  7. As a Vermonter, I find it interesting that the fringy push for a Second Vermont Republic hardly ever gets noticed in the national press, whereas right-wing fringers in Georgia or Texas summon the spectre of secessionism. The Aztlan wing of La Raza pushes its own version of this rhetoric of historical grievance, but seldom emerges in the press as an ominous sign of societal polarization. So: what ought the statute of limitations on historically grievous colonization be?

  8. Of course, the standing issue is really the interesting thing here, partially because it is the one question that might actually be susceptible to an answer: who would have standing to bring a suit forcing a state to stay in the Union, and what would be the nature of the dispute?

    Perhaps a Medicaid beneficiary or a participant in some other joint federal-state program granting vested rights?

  9. To those who think secession is valid I have one thing to say: America, love it or leave it (by providing your support for secession, I think we all know which choice you would make).

  10. Interesting discussion, but I haven't seen anyone address his most basic point which is that a State would lack standing to bring such a suit. It seems quite clear to me that that particular hill cannot be climbed.

    The second issue here is that if some state did succeed it is hard to imagine a repeat of the Civil War where most of the succeeding state's military officers came from among federal forces. At this far remove, our identities are national rather than tied to a state.

    The only question here is whether as a political matter the nation would permit it. I think the answer is clearly no.

  11. Eric,

    Don't you want to block your brother's home address? Maybe insert his website instead for any traffic or interest that may come his way

  12. Awesome…thanks for sharing. As a native Mainah, I'm all for secession. Please tell your brother to have actors get the accent right.

    Scalia's position is contingent on the Civil War resolving any Constitutional issues, though. If it is found not to have resolved Constitutional issues (i.e. the 14th Amendment was necessary to cover the Civil Rights Act, etc.) then all bets are off.

  13. As much as I respect the Justice, it simply defies logic that sovereign states can delegate powers to a central federal agent which then, somehow, becomes superior to them.

    The business analogy would be for 13 investors to form a company and hire a CEO who promptly decrees none of the 13 can stop investing, and that none of the Directors can be allowed to leave the Board of Directors.

    Contrary to popular belief, this logic was NOT "settled" by the Civil War. Logic is never settled by power. Indeed when power suppresses logic, it remains unsatisfied until some future date. In the meantime, the tension between truth and power takes its toll on the relationship between the citizen and those who pretend to serve them.

    Government thus grows into a self-serving, self-protecting Leviathan that becomes a parasite upon the productive citizen. This hardly ever ends peacefully.

  14. A state has a right to secede. Just like 13 colonies have the right to secede. Just like a wife has the right to leave her husband. Even, if the husband beats his wife into submission, and gets nine old men to say, "he beat you into submission, so you have no right to leave again". Long ago the SCOTUS abandoned the Constitution and the natural rights of individuals, and is practically irrelevant.

  15. interesting choice your brother made. after all, there would be no "maine" without secession.

    the geographical boundaries of maine were simply a massachusetts enclave until march of 1820, when it seceded from massachusetts under the missouri compromise and became the 23rd state.

    it's too bad scalia doesn't know anything but how to worship the government that pays him. of course, that doesn't mean everyone else has an excuse for being equally ignorant or dishonest.

  16. Very interesting.

    Recently there has been a growing movement by citizens of the District of Columbia to "secede" from the union as a result of the continued denial of the right to vote.

    In the District's case there is clear precedent — the American secession from England. Even the rallying cry would be the same: "No Taxation Without Representation!"

  17. The Pledge of Allegiance to the United States is an oath of loyalty to the republic of the United States of America, originally composed by Francis Bellamy in 1892. The Pledge has been modified four times since then, with the most recent change adding the words "under God" in 1954. Francis Bellamy (1855-1931), was a Baptist minister, a Christian socialist, and the cousin of socialist utopian novelist Edward Bellamy (1850-1898).

    Swearing of the pledge is accompanied by a salute. An early version of the salute, adopted in 1892, was known as the Bellamy salute. It ended with the arm outstretched and the palm upwards. It eventually evolved to palm downward. Because of the similarity between the Bellamy salute and the Nazi salute, President Franklin D. Roosevelt instituted the hand-over-the-heart gesture as the salute to be rendered by civilians during the Pledge of Allegiance and the national anthem in the United States, instead of the Bellamy salute. Removal of the Bellamy salute occurred on December 22, 1942, when Congress amended the Flag Code language first passed into law on June 22, 1942.

    Nice to know isn't it. We've all seen where Nationalist Social Statism leads. I'd rather toil with the troubles of freedom than toil with the chains of a despotic government. Peaceful Secessions will solve the problems with the Federal Government and if the Federal governments seeks to enact violence on those wishing to voluntarily leave the union it will show its illegitimacy of existence to the world for the second time. If you want to voluntarily stay and worship the Religion of National Statism than you should be able to do so, others should not be forced with the threat of violence or even a concrete cage simply because you find it offensive that someone would rather be free than be a slave to tyrants.

  18. Anonymous says: "As much as I respect the Justice, it simply defies logic that sovereign states can delegate powers to a central federal agent which then, somehow, becomes superior to them."

    Except the federal government was not formed by the states, is not their "agent" and does not derive any authority from any "delegation" of powers by the States. The federal government derives its powers directly from the people of the United States (not the states), which is why the preamble of the Constitution begins "We the People." The original constitution was not even ratified by the original States as legal entities (their legislatures didn't adopt any bills approving it, their governors didn't sign any bills approving it). Instead, it was ratified by state conventions – delegates elected directly by the people of each state.

    Put another way, the federal Consitution was created by going "over the heads" of the States, directly to the people. As stated in the Declaration of Independence, any governments (state or federal) derive "their just powers from the consent of the governed."

  19. I think Ron Paul made a good point on this issue. With all this talk of "Secession" the States would be more likely to get away with nullification, than secession. We are the "United States of America" & thus for should stay united accordingly. However, in the instance of a complete tyranny in the Federal Government, I think it's pretty clearly stated in the 9th & 10th amendments of the Constitution that we have every right on earth to nullify the federal government when it becomes tyrannical! Of course the Feds will not agree with this, but when the truth is concerned, what part does "Opinion" play anyway? When "We The People" decide it's time to shrink the Federal establishment, well then the peoples will will be done!!!

  20. Divided we Fall! We should all stick together as a union and use our power to throw off shuch government and start over as a Union. Nullification is a good step toward that goal.

  21. "If any state in the Union will declare that it prefers separation…
    to a continuance in union… I have no hesitation in saying,
    'let us separate.' " – Thomas Jefferson

    Read the following pieces of American History, to explain why Nullification and Interposition are less radical means of providing a check on the Federal government than Seceding.

    The Declaration of Independence (the United States was founded on the right of secession)

    Kentucky Resolution of 1798
    written by Thomas Jefferson

    Virginia Resolution of 1798
    written by James Madison, a Federalist

    Kentucky Resolution of 1799
    State Legislature wrote this one

    All the New England states rejected the resolutions. However, the state governments of Massachusetts, Connecticut, and Rhode Island threatened to ignore the Embargo Act of 1807 based on the authority of states to stand up to laws deemed by those states to be unconstitutional. Rhode Island justified its position on the embargo act based on the explicit language of interposition. Within five years, Massachusetts and Connecticut asserted their right to test constitutionality when instructed to send their militias to defend the coast during the War of 1812. Connecticut and Massachusetts questioned another embargo passed in 1813. The supreme courts of both states objected, including this statement from the Massachusetts General Court:

    “ A power to regulate commerce is abused, when employed to destroy it; and a manifest and voluntary abuse of power sanctions the right of resistance, as much as a direct and palpable usurpation. The sovereignty reserved to the states, was reserved to protect the citizens from acts of violence by the United States, as well as for purposes of domestic regulation. We spurn the idea that the free, sovereign and independent State of Massachusetts is reduced to a mere municipal corporation, without power to protect its people, and to defend them from oppression, from whatever quarter it comes. Whenever the national compact is violated, and the citizens of this State are oppressed by cruel and unauthorized laws, this Legislature is bound to interpose its power, and wrest from the oppressor its victim."

    It is very important to note that many states use these principles today to protect their citizenry from the Federal Government on the Medical Marijuana issue and many others. You will see slander all throughout the Progressive media in attempt to keep these principles from becoming popular in American culture, they threaten their establishment, the status quo and their power. What you are seeing is the struggle of a drowning victim, grabbing and pulling at any piece of power and propaganda that they can.

  22. Seems typical that a FEDERAL judge might feel that way about a STATE'S right to secede. Ask a state judge.

    If at first you don't secede, try, try again.

  23. America isn't defined by the politicians that lord over it's people. The government is nothing more than a criminal gang that uses violence and the threat of violence to achieve it's goals. To suggest that America and it's criminal government are one in the same is truly the height of ignorance. The mob is well known to operate in New Jersey among other places. If one does not like the mob does that mean they hate New Jersey and have to leave? That's the same logic as saying 'if you don't like the US government you don't like America so get out.'

  24. The Federal Government was created by the states. The state Governments created by the individual people coming together. If the citizens of a certain state, by a majority vote, vote to secede from the the Union,because they are dissatisfied with it or want to create one that is, in their minds, better for them then that is their choice and their right to do so. But in so doing, they remove the blessings which are to be gained by being in a union.

  25. Please disregard my earlier comment. The people are correct in that the Federal government was created by THE PEOPLe and not the states. If the people therefore have the right to create a government, they may certainly AND PEACEFULLY remove themselves from it and create a new one. BUT IT MUST NOT VIOLATE THE RIGHTS OF OTHERS : PROTECTION OF LIFE, RIGHT TO CONTROL AND OWN YOUR PROPERTY AND TO PROTECT YOUR RIGHT TO CHOOSE (FREEDOM OF CONSCIENCE) HOWEVER THIS DOES NOT MEAN THAT THE PERSON CAN DO WHATEVER HE OR SHE PLEASES READ JOHN LOCKE ON THAT

  26. pledge post dates war between states circa 1898
    coporations are people
    eminent domain
    shesh! so much for calling balls and strikes. ump needs glasses

  27. Millions of Texans don't want these secessionist nutballs any more than you do, so please don't stereotype.

    In any case, who cares whether there is a legal right to secede? It's a stupid idea advanced by cowards and quitters.

    Anyone who really loved their country would want to fit its problems, not run from them.

  28. "If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede."

    LOL. So much for America's fine, legal minds.

    A question for ordinary Americans. Which of the following statements do YOU agree with?

    1) "If there was any constitutional issue resolved by the murder of Nicole Brown, it is that there is no right to divorce."


    2) "When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them … "

  29. try reading the declaration of independence, the constitution, and the founders intent for the creation, existence and future for this country…its PURPOSE.

    most importantly, the reason for its creation and why it was made in such a manner…
    (for this country is FAR FROM IT)

    secession is clearly legal, a morally right and acceptable choice, and if a people/state deem it necessary or even if they choose to secede it is their choice and their UNALIENABLE RIGHT.

    who grants rights? certainly not the state, government or any man, although they would like to think they do…

    it is not a privilege or something that can be denied by another party, no matter how forceful, manipulative, coercive or destructive they may be…or have been.

    this is all obvious to anyone who has any concept of what, exactly and actually is, freedom/liberty/self-determination.
    regardless of what pompous ignorant firework-july4th amerikans, judges, members of, or the corporation, most unwittingly worship, and call the UNITED STATES, has to say about it…

    but hey, most people are brainwashed by this CULT-ure, so its a little understandable, albeit unfortunate, to see the height of ignorance, arrogance and delusional-false-patriotic-collective-socialists promoting big government-wall street-corporate-banking-military fascism…even as they rape and pillage the lower and middle classes, and wage wars across the globe.

    Most people have no clue what freedom is, who has it, or who gives it, and it is obvious most people are slaves in the worst kind of way, for their minds are already enslaved through their own choosing, willingness and ignorance.

    whats even worse, since people do not take the time to truly learn and understand the matter to a level beyond mere animalistic thought, these types of attitudes will lead to the destruction of this country and the world, and after the 'Greater Depression' and 'WW3' hind sight will be 20/20 as it always has been for those who care to look and perceive, learn and understand, if they are able and willing, however, much to late it will be to change what has already occurred…even so, there will be some witnesses to these atrocities.

    history has already taught all of this, although the majority have not learned and understood…nor will they, for they care not, and love not the TRUTH.

    so their fate is sealed, and the result is inevitable…

    what a wretched curse and a despicable, destructive, disease mankind has become on the face of the earth…

  30. sure you can secede, but can you keep your state from the union once you have it? As for the right to secede, its one of those options that is not and can not be dictated by law, people just have to want it enough to take it. Unfortunately horrible precursors were left when the civil war occurred with it automatically being assumed that right was waived afterward and the actions to keep the status quo was justifiable (i.e war and the destruction across the nation side by the union.)

  31. Of course the States have a right to secede from the Union! As one commenter stated the Declaration of Independence was a statement of our right to secede. It would be irrational and self-contradicting for a government founded through secession to deny that right to secede to its own member States.
    The basic laws of logic dictate that any one (in this case any State) who joins a Union of one's own volition has the right to depart that Union by and of one's own volition.
    As to the commenter who puzzled the question of Patriotism and Secession, please realize that Patriotism is not to a government or a land mass. Patriotism is to an ideology and the ideology of The United States of America is found in The Constitution. Patriotism is loyalty to The Constitution and the principle contain there in. That is why ever elected official must swear an oath to The Constitution. They swear to uphold and defend The Constitution against all enemies, foreign and domestic. The only problem is every member of Congress, with the exception of Ron Paul and Dennis Kucinich, has committed Treason against the very document they swore to uphold. They would have to arrest, try and execute themselves.

  32. The idea of secession will of course vanish when a neocon Republican majority is reestablished in a year or two or a few years which ever comes first.

    A much better return to Constitutional government could be much better served with the orginal way the US House and US Senate was chosen. The House was the PEOPLE's House but the Senate was more accurately established as the STATES' Senate elected to represent the State Legislatures, being elected by the State Legislatures and NOT by a general election allowing the people to vote on their election. If this was still done today none of the federal programs not desired by the states could or would ever be passed and made a binding law. Some have said the chnage in the US Senate election was pushed by JP Morgan and others wanting a Central bank and knowing they could have never been successful establishing the Fed, they bank rolled the Progressives to change the Constitution.

  33. The notion that a seceding state would need permission from the body it wishes to secede from seems absurd to me. The act of secession is inherently a state issue requiring no third party. From the state's perspective, upon secession the U.S. Supreme Court retains all the relevance of the Supreme Court of Canada or Mexico.

    The civil war, while fortunately resulting in an end to slavery, was nonetheless an unconstitutional use of federal power so I can't see how it could possibly be used as some kind of legal precedent.

  34. Yes, nowhere does Scalia outright state that a state does not have the right to secede…probably learn to read things more accurately and not use the statutory, lawyer analysis.

    Even if he did say it exactly, who is he? What is his function? He helps make decisions on issues of Constitutionality and nothing more. The Supreme Court cannot "change" the Constitution in any form…they simply affirm whether inferior law is valid and within the confines of the Constitution. That role is defined in the Constitution itself. Regardless of what they think, say, or do, they have NEVER had the lawful ability to "interpret" as to limit or narrow the Constitution against the people themselves. If they are to "interpret" they are only allowed to define in the most liberal terms, and if to broaden the scope of meaning, only in the favor of the people, never in the favor of government. The Supreme Court is, just as the other branches totally bound by the 9th amendment. It IS the biggest single Constitutional limitation on the Supreme Court. PERIOD. So to answer the question of who is Scalia?: He and his buddies are nothing more than legal janitors of Congress and the President cleaning up their sloppy work.

    Now to the issue of secession, the bottom line is that:
    #1. There is no clause whatsoever in the Constitution that speaks to secession whatsoever, and therefore any possibility of Federal statute to the contrary would be void in whole. Any agreement entered into by a state would still be valid until its expiration or its breach of terms. (So literally any state with an agreement could walk at any time due to blatant breach of terms on many levels.)
    #2. If the people of a state(better described as “country”) decide to split away from the Union, it is a rejection of the binding document(contract) that forms our Union with a Federal government. That document is the Constitution.
    #3. Since it is not in the Constitution it is in any form, and the Supreme Court only deals with issues of Constitutionality, it does not involve the Supreme Court whatsoever. And only involves the Federal government’s involvement only to the extent to facilitate the separation.

    So in the end, the People of a state DO have the right to abolish part, or all of their governing system and install a new one. Sounds like they want their own freedom. Hmm… sounds like something out of the Declaration of Independence.

    But even though we talk of ourselves being a “Nation of Laws” and upholding “Freedom”(Boy, I want to wave my little plastic “made in China” American flag!) We would allow our Federal government to manipulate a secession into a bloodfest for “our own good” and the “good of that state”. Why?… WHY???? Because we are too ignorant to educate ourselves and learn from history(even our own).

  35. Just remember what President Abraham Lincoln said.

    "Any people anywhere, being inclined and having the power, have the right to rise up and shake off the
    existing government, and form a new one that suits them better. This is a most valuable, a most sacred
    right – a right which we hope and believe is to liberate the world. Nor is this right confined to cases
    in which the whole people of an existing government may choose to exercise it. Any portion of such people,
    that can, may revolutionize, and make their own of so much of the territory as they inhabit."
    – Abraham Lincoln, speech in Congress January 1848)

    "No state, upon its own mere motion, can lawfully get out of the Union. Plainly, the central idea of secession, is the essence of anarchy."
    – Abraham Lincoln

  36. President Buchanan, in a speech before Congress in December of 1860 (which was when South Carolina left the Union) said the following:
    "The question fairly stated is, Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State. After much serious reflection I have arrived at the conclusion that no such power has been delegated to Congress or to any other department of the Federal Government. It is manifest upon an inspection of the Constitution that this is not among the specific and enumerated powers granted to Congress, and it is equally apparent that its exercise is not " necessary and proper for carrying into execution " any one of these powers. So far from this power having been delegated to Congress, it was expressly refused by the Convention which framed the Constitution."

  37. I find it interesting that legal scholars continue to look for textual support for secession in the very document from which states wish to secede. Indeed, the fear that the "federal power" would, over time, become all encompassing and tryannical is a contingent that the founders strove to prevent but recognized may nonetheless occur.

    Our country was founded on the NATURAL RIGHT inherent in every human being to chose their own form of government. By definition, a natural right exists beyond the text of codified laws.

    Present partisianship aside, the founders most certainly DID contemplate a right to secede. It is set forth in the Declaration of Independence.

    Also, it is interesting that many northern states threatened to secede from the republic over the question of slavery.

    More importantly, to the extent one wishes to find textual support for the right to secede in the constituion, one need look for further than the 2nd Amendment.

    The primary justification and purpose for the second amendment was not for individual protection from thieves or the right to hunt. Rather, it was for the purpose of allowing states to organize militias to oppose a federal standing army. In other words, by providing the right to bear arms, the founders ensured citizens would have the MEANS, not just the right to secede.

    There is no question that states have a right to secede. The REAL question that everyone is addressing is whether the national government will recognize this right absent military force.

    Clearly, if the Civil War had gone the other way, there would be no debate of states' right to secede. Rights can exist on paper and in the minds and hearts of people, but are utterly worthless unless they can be vindicated through force.

    The whole point of civil society is to designate the power of force to a central authority for stability. The founders' principal objective was to diffuse this power and scatter it among as many different political branches and subdivisions so that no one group had sole authority to exercise this power.

    In doing so, they expressly recognized that citizens–whose rights arise by NATURAL LAW and do not depend on any human constructed political system–have the power to resist and overthrow a tryanical government.

    Patriots love their country and see government as a necessary evil. Traitors love only the aggrandizement of power.

  38. Yeah, and once you've succeeded in seceding, have fun negotiating treaties with all of your surrounding states to support commerce.

    And make sure you save your pennies, because once FEDERAL monies stop flowing to your state (to cover medicare, education, defense, etc) you're gonna need it.

    While you're at it, make sure you can provide for you common defense since ALL federal troops will have to vacate your territory.

    Boy howdy, its gonna get expensive really fast.

    And those are just the simple things.

    Good luck.

  39. My thanks to all who commented who, despite the passionate interest in the subject, kept the conversation civil.

    I've now followed up with two additional posts. The first has the rejection letters from other judges:

    The Supreme Court's Other Responses to the Screenwriter's Secession Question

    But the second takes direct issue with Scalia's inability to see how the issue can get to the Supreme Court:
    How the Supreme Court Could Hear the Secession Issue (A Response to Justice Scalia)

  40. Facinating. The reason SCOTUS may not hear the case is if a state secedes, the SCOTUS is no longer the binding court of that state. The State's Supreme Court is.

    The Constitution is not a document demanding you must be a slave to a federal entity. Each state is sovereign. Has it's own constitution – its own courts.

    You can't "force" a state to stay married to you. And without the states, the federal government doesn't exist.

    Lets face it – 38 states challenging the federal government now over this ugly HC law.

    There's a problem in the nation.

    And those screaming "civil war" are wrong. Our nation is technologically advance now, seceding could be handled on "paper." A "paper" revolution. A "revolutionary" revolution.

    We're all tied together – no one needs to ride on horseback to deliver messages – and months in between.

    We have ballots now instead of bullets. And a "paper" divorce could be handled very easily after a vote in a state.

    And when you have 38 states pushing back against the federal government, you've got a problem brewing. A big one.

    If 38 states say to the federal government "if you ingore our authority, we will ignore yours". . . someone in washington is bound to listen.

    And we'll be treated to the federal government going after 38 states now to declare their "laws" as subordinate. . .what a treat. And if those 38 states band together and tell Washington "fine, you're on your own with 12 states then". . .there isn't anything Washington could do about it.

    Think about it – 38 contiguous states would go on, business as usual, only without acknowledging Washington's authority. (Since Washington wasn't willing to acknolwedge the states' authority.)

    Washington would be in a world of hurt.

    This discussion isn't over – not by a long shot.

  41. The reason SCOTUS may not hear the case is if a state secedes, the SCOTUS is no longer the binding court of that state. The State's Supreme Court is.

    It would not be the first time that a party to a lawsuit claims that a court doesn't have jurisdiction to hear the matter.

    The theoretical means by which the argument could come before the court is set forth in a follow-up post:

    How the Supreme Court Could Hear the Secession Issue (A Response to Justice Scalia)

  42. Excellent post Mr. Turkewitz.

    It is a which comes first, "the state that leaves" or "the suit" question.

    I think they would be right to apportion the debt, but the fact is, the debt is so obscene, there is no way to apportion it. And if the states argued that Wahshington has spent beyond a realistically "payable" amount, and seems bound to keep going – there is nothing Washington could do if the state(s) shrugged their collective shoulders and said "so sue me." (grin)

    What's that saying, if you owe me money, it's your problem. If you owe me a LARGE amount of money, it's my problem.

    And if 38 states are already shoving back at Washington with their own legislation, and 13 states are already suing, there's a big problem going on.

    As James Balwin said "The most dangerous creation of any society is the man who has nothing to lose.”

    If Washington creates that in our society with the bottomless spending – there is nothing to lose by the states seceding. Especially if enough of them decide that is a viable option. There would be more "prosperous" people in their state – and a chance to become solvent again, sans Washington and its mandates and edicts.

    The states just simply walk away from Washington and leave Washington to crumble and fall. Of course, Washington would make sure the banks failed, but then again, we've already been through that, haven't we? It doesn't hold any fear for anyone like it used to.

    And as angry as some of the people out there are, some would be glad to watch some of them fail.

    It wouldn't be good for anyone in the nation. However, when you come to a point, as our nation may be, that we are technologically advanced – and it could be accomplished on paper, it may not be as "academic" a discussion as some would like to think.

    And who knows, your brother's script may end up an example of "life imitating art." Or even more than that, prophetic.

    States could secede, and not a single shot fired. We have ballots now instead of bullets.

    People can "vote with their feet" and could move to the states that are no longer under the aegis of the federal government. Of course, during the divorce, a negotiated "contract" would have to be made for defense spending.

    Something tells me, you're going to be having more of this conversation in the coming months, just because there are so many angry and they will need to vent.

    Good luck to your brother, and thank you for the facinating posts you and others have provided.

  43. The suits filed today seem very shallow and very weak to me because the very idea that they are using as an excuse the requirement everyone must buy health insurance and that requirement is not lawful yet the same Attorneys General were silent on the Medicare part D purchase requirement or a larger sum would be applied to those that did not buy into the drug plan. In my state Florida certain people on Medicare were actually assigned a company by the state without any input on their part when they had failed to do it for themselves. The Republicans in Congress and a Republican President passed and signed the Part D plan and wrote the bill so what is so different now.

  44. Alan Charles Report:

    There’s a problem Washington has. There are 2 supreme court decisions that contradict what the Government is doing.

    Bailey V Drexel – 1922

    “So here the so-called tax is a penalty to coerce people of a state to act as Congress wishes them to act in respect of a matter completely the business of the state government under the federal Constitution…. “

    Congress cannot tax as a penalty. Calling it a “tax” does not disguise it for what it is, a penalty, in an attempt to get people to act the way Congress wants them to act.

    The other is:

    Hammer V. Dagenheart – 1918

    “Held, unconstitutional as exceeding the commerce power of Congress and invading the powers reserved to the States.”

    “There is no power vested in Congress to require the States to exercise their police power so as to prevent possible unfair competition. Many causes may cooperate to give one State, by reason of local laws or conditions, an economic advantage over others. The Commerce Clause was not intended to give to Congress a general authority to equalize such conditions.”

    Washington doesn’t have the power to demand people to purchase insurance – to prevent one state from having an advantage over the other in costs. States regulate that, Washington has no authority over that.

    Next – the one that angers most people, Washington cannot FORCE an individual into “commerce” via their authority to REGULATE commerce. (Commerce Clause)

    That’s unheard of. It’s never been done. The feds are bootstrapping their authority to “regulate” commerce into a brand new power to “force” you into commerce, force you to do something.

    The fact that 38 states are drafting legislation opposing it, and 13 states are suing the federal government says the suits aren’t “weak” nor are they without merit.

    Washington shouldn’t be so blasé about thinking they have these powers under the Commerce clause. The Supreme Court has ruled otherwise before in 1918 and 1922. They look like they’re directly on point, too. And given the age of the decisions, it appears these are “black letter” law now also.

    Maybe Mr. Turkewitz will help us out on that one.

    Look, the nation is angry – they’ve watched Washington give our money away, take over car companies, banks, they’re taking over college loans now, and moving toward insurance companies and your Health Care. Next will be power companies and your electric bills. (Can ‘N Trade).

    What are they doing?

    1 in 7 Americans is struggling to buy food. Yes, in America. We’ve been screaming “jobs! Jobs! Jobs!” and all Washington can say is “health care. Health care. Health care.”

    The nation has been angry for over a year, and Washington hasn’t been listening. Without a job, nothing else matters. It’s been the priority from day 1. Not a single poll in America says or has ever said HC reform was the top priority. 70% of the nation doesn’t believe Washington is listening to them anymore.

    And that’s a problem. A BIG one. That’s a “mandate.”

    As I said, I believe Mr. Turkewitz’ brother may be more prophetic than he realizes. And not just in a “spoof.”

    I’m willing to bet this “hypothetical” discussion starts to become more prevalent as Washington continues to anger “mainstream” Americans by ignoring what the real priorities in the nation are.

    Jobs for us. Not those in Washington.

  45. I am afraid too many people concern themselves with pointless issues.

    If let us use The Republic of Texas as an example. If the Republic of Texas were to declare they have seceded from the union. They would be very stupid to appeal this the an invalid authority such as the Supreme court of the United States.

    At the moment of Secession the Republic of Texas become an independent nation and equal to the US not subordinate. So the Appeal would be made to a higher Governing body such as the UN.

    In fact Texas may request assistance from member nations to protect the borders and prevent bloodshed inflicted by a much more powerful nation.

    If this were the case I can think of roughly 20 member nations that just might preemptively offer support just as the US did in cases like the republic of Georgia, Poland and a few other times.

    There might even be tacit support much like the mujahadin and Osama Bin Laden received from the US during the Afgan/Russian conflict back in the 1980’s

    It seems to me that no one has wrapped their head around the fact that a State that secedes no longer accepts the Authority of the US government or the courts is holds. It would be much like a wife leaving an abusive alcoholic husband and requesting her former in-laws be the judge and jury in the divorce proceeding.

  46. Talk about what the Party of Lincoln should think about secession is folly. The Party of Lincoln no longer exists; it was absorbed in the Party of Wallace after 1968.

  47. It is a good thing that the sovereign power (e.g. the right to secede) within a body-politic (i.e. State) does not rest upon the opinion of a biased judge in the Federal government, nor does the natural rights of man rest upon a body of judges within an entity created by the sovereign will of the states.

    This judge openly acknowledges, given his line of reasoning, that the natural rights expressed in the Declaration of Independence, and the powers retained in the 10th amendment, have been conquered (an act of war) by the United States Government and that the any and all natural or constitutional rights of Confederate States of America were subject to the conquestor. In essence, those conquered states became the slaves of the U.S. government.

    However, this cannot be the case, because the U.S. government treats ALL the states as those remaining loyal to the US government equally under the terms of the ORIGINAL constitution (pre-1865). Thus, there is no way that the war could have stripped the States of the rights those possessed as expressed in the Declaration of Independence and reserved in the 10th amendment.

    Treating the “conquered” states as such, they essentially restored to them all of their natural and constitutional rights pre-1865. If this is not true, then why was not the right to secede taken away by a constitutional amendment?

    If the war “settled the issue,” then where comes the notion that the US Constitution is the “Supreme Law of the Land”? If the US Constitution did not settle the issue but the war did, then the literal RIGHT of the states to secede had nothing to do with the war, but rather, the matter of the war was to prevent the states from seceding, regardless of right.

    If this is not true, then why could not 3/4 of the states (at that time) pass a constitutional amendment reflecting that the US Constitution waived the right to secede? Why was there not a US S CT case brought on this most crucial of a matter, which cost the millions of dollars and thousands of lives?

    More than ever before, we see the revealing truth that a state’s right to secede is not only natural to the powers of that body-politic, but also necessary for its survival, security, happiness and prosperity.

  48. To question the constitutionality of secession, presumes that the constitution formed the states– which is clearly the reverse of the actual truth. For this reason, the Constitution could only have formed the states into a single nation, if it clearly and expressly says this to be the intention of the states; for each state was free, sovereign and independent prior to the Constitution, i.e. each was a nation unto itself. Others have claimed the opposite, but they were clearly waffling: i.e. the union among the states was nothing but a military alliance– never a conjoining act to form a single nation.

    As for the “Civil War:” the above facts clearly reveal that to be an act of international imperialism, no different from Saddam Hussein’s conquest and annexation of Kuwait; and few Americans would consent to abide under such a regime of empire, in which legitimate state sovereignty was suppressed by force rather than conjoined voluntarily among the people. Indeed, this would make the federal government into the ruling sovereign, while the people would have choice only choice of some staff-members at prescribed intervals– similar to a slave choosing its master, i.e. neither is truly “free.”
    As such, we see that discussion of this matter has been suppressed since the time of that war in question; and Scalia is simply a puppet of the regime, speaking in behalf of his own interest as denying this very fact. However in this vein, “methinks the man doth protest too much;” for his claim dotes on the “Civil War,” while his statement of lawgivers’ original intent is conspicuous by its absent. One must assume, therefore, that Mr. Scalia has no factual rebuke of this matter– and that therefore he concurs that every state was sovereign by law… and that secession is suppressed solely by threat of unlawful force and intimidation, since no laws were CHANGED via the war.
    That the United States is an empire, is irrefutable; for its behavior and world-involvement is identical to every empire in history, expending vast resources to maintain power-bases in distant lands which bring no benefit other than simply influence over them, but at a cost far greater than any security it could possibly bring. This is what ultimately destroys every empire: i.e. bankruptcy– not only from such over-extension abroad in lands hostile to it, but also domestically, via factionalism among the citizenry over the division of communal revenue between the “haves” and the “have-nots.”
    The Founding Fathers wisely averted this quagmire via maintaining sovereignty within each state via its respective People; however this greed-based factionalism quickly suppressed that sovereignty as early as the Jackson Administration, which denied the very same power of Nullification that Madison and Jefferson, speakign for their states, declared to be absolutely indispensible to uphold the Constitution against a federal majority.

    Naturally, Scalia– being chief justice of the US Supreme Court– will deny this, since he wishes to deny that he could ever affirm an unconstitutional law; however this is the sentiment of a dictator claiming benevolence, since a national constitution makes the Supreme Court into the last word on the Constitution, making the US Supreme Court into an all-powerful body on any law that could possibly come before it. (Even Linoln claimed this upon taking office- and in doing so, he likewise overthrew the Court entirely for the duration of his reign, claiming that the Court had no power of judicial review; and in this way he was able to suspend habeas corpus on his own sole authority.)
    In short, the federal government is an illegitimate empire, and has successfully suppressed all discussion on the matter for 140 years.
    I say it ends now: Mr. Turkewitz, I think your brother should write a movie about the legitimacy of the “national government;” movie-producers are interested in only one thing: MONEY, and such a film would definitely rake in a lot of it. Perhaps not as much as films like “Iron Man,” but Americans have not grown lazy and complacent, so much as hopeless into docility and escape from their long-bereft lack of individual significance, since they have been born and bred to serve the state, rather than vice-versa as they are told.

    • I say it ends now: Mr. Turkewitz, I think your brother should write a movie about the legitimacy of the “national government;” movie-producers are interested in only one thing: MONEY, and such a film would definitely rake in a lot of it.

      He has a finished screenplay (actually 5 finished screenplays) and is looking for an agent. Tough business, that Hollywood.

  49. States could secede, and not a single shot fired. We have ballots now instead of bullets.

    They had that in 1860, too; the bullets were simply in response to the federal invasion. Secession was suppressed via censorship, jailing and torturing reporters and closing hundreds of presses which didn’t support the war. This allowed the federal government to simpy trump up laws against secession– and even today, Scalia basically says that trumped-up laws are valid, simply because the federal government had the power to enforce them!

    This proves that Scalia is a bad man, period.

    However today we have the internet and videophones, twitter etc., so this could make the difference, i.e. if a state seceded, and the federal government quoted more trumped-up law against it, then people could expose the TRUTH without being silenced. If the federal government tried to intimidate people into silence TODAY, then it would backfire: i.e. there would be a storm of protest via internet, television, radio and every other electronic media that would surround the world and drive the federal government out of power.

    The ONLY way that Lincoln won the war, is by silencing opposition, and intimidating everyone into thinking they were alone in their beliefs, but with the rise of the internet, that ship has long sailed. So it will only require one state to nullify a federal law, in order to set off a re-match between the states and the federal government– and the states can’t lose this time.

  50. >>

    Eric Turkewitz:I say it ends now: Mr. Turkewitz, I think your brother should write a movie about the legitimacy of the “national government;” movie-producers are interested in only one thing: MONEY, and such a film would definitely rake in a lot of it.
    He has a finished screenplay (actually 5 finished screenplays) and is looking for an agent. Tough business, that Hollywood.

    He needs to calculate the box-office returns; big-controversy films can do that, just look at JFK.

    The problem here, is that he is going up against Lincoln, who is a government-created idol– i.e. a false god that everyone believes in; and so producers will smell failure.

    Basically we say that states have the legal right to secede, then we’re also saying that Lincoln was wrong– and therefore both parties will pull together and attack us in knee-jerk fashion, saying we’re pro-slavery and racist etc, since slavery is their trump-card in suppressing the issue.

    For this reason, secession-issues are a catch-22 in the American mainstream, i.e. no one WANTS to know the truth; they’re too brainwashed into thinking that “secession = slavery.”

  51. Karl:I am afraid too many people concern themselves with pointless issues.
    If let us use The Republic of Texas as an example. If the Republic of Texas were to declare they have seceded from the union. They would be very stupid to appeal this the an invalid authority such as the Supreme court of the United States.
    At the moment of Secession the Republic of Texas become an independent nation and equal to the US not subordinate. So the Appeal would be made to a higher Governing body such as the UN.

    Actually secession as a matter of right, would indicate that Texas was already an independent nation, and that authority was only delegated to the United States as an agent– and that Texas was simply resuming its governing authority over itself, i.e. telling Washington that its services were no longer required.

    However a sovereign nation, by definition, does not “appeal” to anyone, but simply declares its rights before all other sovereign nations; and so they naturally must join in this recognition, as a condition of maintaining their ownsovereignty.

    It seems to me that no one has wrapped their head around the fact that a State that secedes no longer accepts the Authority of the US government or the courts is holds.

    Again, a sovereign state never accepts the authority of the US, but only delegates authority to it as a subordinate agent. So this is simply like a business-owner firing a manager or a security-guard; i.e. they only have whatever authority that the owner delegates to them in the first place, and now the owner is simply ending that delegation. All authority always exists in the owner.

    This judge openly acknowledges, given his line of reasoning, that the natural rights expressed in the Declaration of Independence, and the powers retained in the 10th amendment, have been conquered (an act of war) by the United States Government and that the any and all natural or constitutional rights of Confederate States of America were subject to the conquestor.

    Actually he’s denying this, instead he’s claiming that the federal government is the proper authority for whether laws are constitutional or not– but he’s also obviously denying that the federal government ever abuses this authority.
    Of course it’s a complete crock: the federal government not only abused its authority from Day 1, but also encouraged the states to do the same by rubber-stamping unconstitutional state-laws and other actions.

    Simply put, Scalia is the head fox, arguing why foxes should guard the henhouse… of course the powerful are going to deny that power corrupts.
    But only a fool would believe him… sadly, that’s the majority.

  52. I was most disturbed of all by this statement by Scalia:

    “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.”

    So Scalia believes that federal armed force can resolve constitutional issues, rather than the proving the original intentions of the lawgivers themselves.

    This really gives him away as pro-fascist dictator– and I think it’s the line which your brother should open his movie with:

    “”If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.”

    Mr. Turkewitz, I’ve been working on getting a book published regarding secession-law, and I have the primary authority writing it, who is a state-history professor. Please send me an e-mail and I’ll give you the details; it might be better to collaborate on a screenplay.
    I’ve also been in contact with other famous authorities you’ve probably heard of. Like you said, producers want big names; this might do it.

  53. I am not a lawyer but wasn’t Scalia incorrect when he said ” I cannot imagine that such a question could ever reach the Supreme Court”. Didn’t it do just that and the question of secession resolved by Texas v. White, 74 U.S. 700?

  54. Pingback: Secession Week 2010: Federalism and Secession « Let A Thousand Nations Bloom

  55. @JCtx
    If a State does not have the right to leave the Union then no one has any rights because we would be little more than slaves to the federal government. Why should any State be held hostage and go down the economic drain with the others against its will? After all, government only has authority by consent of the governed and if the governed of a given State withdraws it’s consent then the federal government has no authority over those people. I’d prefer States be able to leave peacefully if the majority of their people want to but if the majority want to leave the union and the only way to do it is to defend themselves from the federal tyranny by force then so be it. Never start a fight but always be prepared to finish it.

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  58. Pingback: Did the southern states have the a Constitutional right to secede in 1861?

  59. Judge Scalia is glaringly wrong. As a previous commenter suggested, the constitutional compact between the States and the federal government was never intended [by the framers]to be a suicide pact. My understanding of the meaning and intent of the framers is that if the feds overreach and, in so doing, violate their constitutional authority and/or usurp State authority, and if that violation is upheld by the Supreme Court, a branch of the federal government, then a State has no other reasonable recourse than to nullify that violation. And should the nullification fail to resolve the issue, it has a duty to secede in order to safeguard constitutional order at least in the State. Note: As a condition of their ratifying the Constitution, within their state constitutions, New York, Rhode Island and Virginia reserved their right to secede and none of the ratifiers objected. The right to secede on the part of those states which comprised the defeated CSA is prohibited by their respective constitutions. Why? With the barrel of gun pointing at their heads, could they have done otherwise? No free man can be compelled to live under tyranny. And as for the indivisibility of the union, what is remotely redeeming or high-minded about an indivisible socialist or neo-Marxist union? Americans wouldn’t stand for it.

  60. the title reads ” The unanimous Declaration of the thirteen united States of America” and the last paragraph reads “these United Colonies are,and of Right ought to be Free and Independent States” it also reads “To secure these rights [ of Life,Liberty,and the Pursuit of happiness], Goverments are instituted among Men,deriving their just powers from the consent of the governed… Whenever any Form of Goverment becomes destructive of these ends, it is the right of the People to alter or to abolish it,and to institute new Goverment you see where our founding fathers where going with this the south was right in 1861 because america was right in 1776

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  63. here is just a thought, maybe im wrong but hear me out. why would any state need to have the right given from the federal government to succeed? just like in the civil war, succession creates a new country with a new government and a new set of rules aside from the old government and the only way for the old government to take it back would be by force (war). There fore any state can succeed any time it wants because the act is not necessarily an act that requires the permission of the old government. Short of aggression the old government would be powerless to stop it.

  64. Pingback: The Year in Review (2010) – New York Personal Injury Law Blog

  65. Pingback: Nullification, Secession, and Guns Show Constitutional Meaning is Never Settled | Verdict

  66. Always learned that states had the right to leave the union if they desired to and I support it. Can’t have a free country, otherwise. But I guess that’s ok if the U.S. doesn’t want to recognize a “right” to secession; maybe it’ll just have to be violently secured in its own right.

  67. Scalia, said in fact do to the corrupt northern government wining the 1960’s,war, that no right now exist for the now Inslaved States to secede, the problem in this reasoning is the Force of Armes that creates this point on view, opens the reasioning that armed force and wining gives the right to secede, so their is a clear right of states to secede, they only have to kick the shit out of the federal criminals.

  68. I do not understand how we even have time to worry about promoting the confederate flag when there are more important issues like creating jobs. Its not Rick Perry’s fault the issue came up – its the people who want the confederate flag recognized. How can those people push their issue in Perry’s face when there are more important matters like housing the homeless, medical programs for children, and creating jobs. I think that the Sons of the Confederate Veterans need to back down and let our government focus on main issues.

  69. Can a person be a patriot (love of one’s country) and wish to leave it? Interesting. The United States was formed by a secession from Great Britain. The founding father’s referred to themselves and we refer to them as well as patriots. Their patriotism seemed to change from Britain to the new colonies. Obstensibly these new “patriots” would do likewise. Perhaps it’s true, all politics is local.

  70. Why is that Americans have such a tough time seperating nation and government. Most Europeans find it quite humurous that you seem to be unable to do so, when we can do it almost automatically. Whether it be France, Germany, the Netherlands or the UK everyone I speak to finds it easy to see the distinction between the two. I guess in the same way we see ourselves as our country first and then as a European. It is also easy to see that you have lost control of your federal government and it controls more and more aspects of your lives. Any one of our countries could choose to leave the European Union and there has been some talk about doing so. Would there be war because of it? Of course not. I realize the circumstances are different but not too dissimilar. Also we find it much easier to love our countries but openly fight or protest our governments. Whemwill you learn that they are 2 very distinct and seperate things?

  71. It’s absurd to even think there is no Constitutional right of the People to secede from a union. This freedom is foundational to the very precursor of our Constitution, The Declaration of Independence:

    “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

    Anyone who cannot oblige this concept is nothing less than an obstructionist to the God-given rights of all mankind.

    There “ain’t no way” you, Scalia or anyone else will convince me otherwise.