Sunday, February 21, 2010

Justice Scalia Responds to a Letter Writer and Concludes There's No Right to Secede

Eric Turkewitz's Personal Injury Law Blog (here) has been listed on the ABA's "Blawg 100" each of the past two years.

Last week, the blog included a fascinating story about Justice Scalia (Turkewitz's post is here).


There's a long-simmering debate among legal scholars about whether states retain, under the US Constitution, the right to secede from the union.

Remember this map from your American history class?

The national media periodically examine the secession debate. Most recently, Texas Governor Rick Perry asserted last April that Texas has the right to secede (you can reminisce about Perry's claim here).

More recently, certain Tea Party members have argued that secession remains a viable, legal option.


On Turkewitz's blog, he explains that his brother (Dan) wrote a comedic screenplay about Maine's decision to secede from the United States and join Canada.

Dan wanted some insight into the legality of secession, and he aimed big by writing a letter to the Supreme Court Justices asking for their opinions.

Amazingly, Justice Scalia wrote back, and his response was not just a generic "thanks for your correspondence."

Instead, Scalia actually addressed the secession question:

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.

It is interesting that Scalia argues the secession question was settled by the Civil War's result, rather than being settled in a pre- or post-War text.

His letter to Dan Turkewitz surely will not be the last word on the controversy, but here is a bravo to Dan for his effort at particpatory democracy -- and to Justice Scalia for taking the time to respond!!


You can read our previous posts about the always-fascinating former Cavalier (Justice Scalia taught at UVa's School of Law in the 1970's) here and here.