Scalia on the Right to Secede

February 17, 2010

Scalia’s argument against succession is based on two parts. One that the civil war was fought over it and it was added to the Pledge of Allegiance, “one Nation, indivisible.” and that to sue for Secession there would be no party to sue. So obviously only the shear will of a militia and it’s blood by force could decide this issue because there is no legal framework for this. …and I think he is right. Some things the law has no procedure for. Let this be a lesson to Conservatives and Originalists that think that intent is always understood, because the intent of our Constitution is that you will and must die for it.
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. -Scalia

Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. 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.