Aman Betheja of The Fort Worth Star-Telegram recently posted an entry on PoliTex, the paper’s political blog, in which he reports that Supreme Court Justice Antonin Scalia has weighed in on the secession question (to the degree that there is one).
According to Justice Scalia, there is no right to secede. In a letter written to an aspiring screenwriter, Scalia states, "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.’)"
Granted, a judge’s personal correspondence concerning a hypothetical situation is in no way binding. Nevertheless, Supreme Court Justices do find themselves from time to time in a position to give their opinions the force of law, so it behooves one to pay attention whenever they speak on such matters.
Justice Scalia is generally considered to be a strict constructionist and one of the foremost proponents of the concept of originalism, which is the belief that the U.S. Constitution should be interpreted according to the intent of those who composed and adopted it. If his opinion on secession is any indication, it would appear that his reputation in this regard is greatly exaggerated.
When it comes to secession, the founders’ original intent is quite clear, and stands in stark contrast to Scalia’s interpretation. Thomas Jefferson gave his two cents on the issue during his inaugural address, saying, "If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left to combat it."
It may be argued that Jefferson merely authored the Declaration of Independence, not the Constitution, so what did he know about it, anyway? Fair enough. Thomas Jefferson might not have been the father of the Constitution, but James Madison certainly was. Mr. Madison was also clear on the subject of secession. In Federalist Paper 39 he wrote that the proposed Constitution would be subject to ratification by the people, "not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong." The original intent to which Justice Scalia allegedly adheres was that the federal government would be the servant, not master, of the sovereign states. Sovereignty implies the right of association, which in turn implies the right not to associate – i.e., the right to secede.
It would be very interesting to read an in-depth legal argument from Justice Scalia supporting his assertion against the right of secession – and I mean that in all seriousness. I recognize that his comments were made informally, and I suspect that there’s more to his argument than just the claim that the Civil War settled the Constitutional question. As far as the issue of secession goes, the only thing the Civil War proved was that the anti-secessionist forces could kill more people than the secessionist forces could. It was clearly an effective strategy, but it hardly rose to the level of high legal theory.
For now, though, let’s take Justice Scalia’s position and run with it. If there is no right to secede, then surely the original thirteen colonies were not within their rights when they declared their independence from Great Britain. The Declaration of Independence is a secessionist document, after all. Does Justice Scalia believe that the colonies violated the rights of the British when they withdrew their allegiance to King George III? If that’s the case, then we should begin reunification talks with the U.K. immediately to rectify what must surely be one of the rankest injustices ever committed against the Crown.
We are perhaps fortunate that Justice Scalia was not in a position of power during the time of the American Revolution. If he had been, the Declaration might have read something like this instead:
“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 those who feel that way should just shut the hell up and quit whining!”
It might have lacked the poetry of the original version, but it certainly would have conveyed Scalia’s meaning in no uncertain terms.
As I have stated before, I’m not arguing that secession is a good idea in any particular context. I’m only pointing out the fact that the most basic concepts of American civics – and indeed the very founding of the United States as an independent nation - necessarily imply the right to secede. If, as Justice Scalia has indicated, the right to secede does not exist – if there is never any justification for political separation, no matter how long the train of abuses and usurpations, no matter how absolute the despotism - then surely we can do away with the myth that ours is a government that derives its just powers by the consent of the governed. If it is neither possible to refuse to consent nor to withdraw one’s consent once given, then the very notion of consent itself is meaningless.
So be it. Perhaps it would be better to let go of the fantasy altogether, rather than pretend that Americans are still free to shape their own political associations. After all, Justice Scalia is right in one very important regard – history has shown that people who wish to depart a political union once it has been established have a high probability of getting shot for their troubles. So instead of teaching our schoolchildren a bunch of political fairy tales about our fair Republic, let’s teach them Justice Scalia’s “roach motel” theory of political union instead:
“The United States of America – you can check in, but you can’t check out.”
According to Justice Scalia, there is no right to secede. In a letter written to an aspiring screenwriter, Scalia states, "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.’)"
Granted, a judge’s personal correspondence concerning a hypothetical situation is in no way binding. Nevertheless, Supreme Court Justices do find themselves from time to time in a position to give their opinions the force of law, so it behooves one to pay attention whenever they speak on such matters.
Justice Scalia is generally considered to be a strict constructionist and one of the foremost proponents of the concept of originalism, which is the belief that the U.S. Constitution should be interpreted according to the intent of those who composed and adopted it. If his opinion on secession is any indication, it would appear that his reputation in this regard is greatly exaggerated.
When it comes to secession, the founders’ original intent is quite clear, and stands in stark contrast to Scalia’s interpretation. Thomas Jefferson gave his two cents on the issue during his inaugural address, saying, "If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left to combat it."
It may be argued that Jefferson merely authored the Declaration of Independence, not the Constitution, so what did he know about it, anyway? Fair enough. Thomas Jefferson might not have been the father of the Constitution, but James Madison certainly was. Mr. Madison was also clear on the subject of secession. In Federalist Paper 39 he wrote that the proposed Constitution would be subject to ratification by the people, "not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong." The original intent to which Justice Scalia allegedly adheres was that the federal government would be the servant, not master, of the sovereign states. Sovereignty implies the right of association, which in turn implies the right not to associate – i.e., the right to secede.
It would be very interesting to read an in-depth legal argument from Justice Scalia supporting his assertion against the right of secession – and I mean that in all seriousness. I recognize that his comments were made informally, and I suspect that there’s more to his argument than just the claim that the Civil War settled the Constitutional question. As far as the issue of secession goes, the only thing the Civil War proved was that the anti-secessionist forces could kill more people than the secessionist forces could. It was clearly an effective strategy, but it hardly rose to the level of high legal theory.
For now, though, let’s take Justice Scalia’s position and run with it. If there is no right to secede, then surely the original thirteen colonies were not within their rights when they declared their independence from Great Britain. The Declaration of Independence is a secessionist document, after all. Does Justice Scalia believe that the colonies violated the rights of the British when they withdrew their allegiance to King George III? If that’s the case, then we should begin reunification talks with the U.K. immediately to rectify what must surely be one of the rankest injustices ever committed against the Crown.
We are perhaps fortunate that Justice Scalia was not in a position of power during the time of the American Revolution. If he had been, the Declaration might have read something like this instead:
“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 those who feel that way should just shut the hell up and quit whining!”
It might have lacked the poetry of the original version, but it certainly would have conveyed Scalia’s meaning in no uncertain terms.
As I have stated before, I’m not arguing that secession is a good idea in any particular context. I’m only pointing out the fact that the most basic concepts of American civics – and indeed the very founding of the United States as an independent nation - necessarily imply the right to secede. If, as Justice Scalia has indicated, the right to secede does not exist – if there is never any justification for political separation, no matter how long the train of abuses and usurpations, no matter how absolute the despotism - then surely we can do away with the myth that ours is a government that derives its just powers by the consent of the governed. If it is neither possible to refuse to consent nor to withdraw one’s consent once given, then the very notion of consent itself is meaningless.
So be it. Perhaps it would be better to let go of the fantasy altogether, rather than pretend that Americans are still free to shape their own political associations. After all, Justice Scalia is right in one very important regard – history has shown that people who wish to depart a political union once it has been established have a high probability of getting shot for their troubles. So instead of teaching our schoolchildren a bunch of political fairy tales about our fair Republic, let’s teach them Justice Scalia’s “roach motel” theory of political union instead:
“The United States of America – you can check in, but you can’t check out.”
