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Scalia & the Right to Secede

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Antonin Scalia

QUESTION: Marty; There are those who say Scalia was wrong for he claimed the civil war was correct and he changed the meaning of the Second Amendment. You are the real constitutional scholar on these issues. Is there a right to secede by a state? Did Scalia really change the Second Amendment?

Thank you so much for your diverse background.


Scalia letter on secession

ANSWER: As far as the question of the Civil War, Scalia answered a question for a movie and it was simply a letter and not a court decision that he rendered. Saying that question was decided by the Civil War and that the precedent was that there is no right to secede was not his opinion, but the established law of the Court. Scalia could not respond otherwise for that was in fact the law, right or wrong. The decision of the Court was not Scalia’s. The argument for secession is not nearly as clear-cut as people think. The Supreme Court in 1869 ruled that secession is illegal.

Texas v. White, 74 U.S. (7 Wall.) 700 (1869), was a case argued before the United States Supreme Court in 1869 where Texas sought to recoup its bond losses. The case involved a claim by the Reconstruction government of Texas that United States bonds owned by Texas since 1850 had been illegally sold by the Confederate state legislature during the American Civil War. Texas filed suit directly with the United States Supreme Court under the Constitutional provision giving the Court original jurisdiction.

14th Amendment

The court ruled that Texas had remained a state of the United States ever since it first joined the Union. The fact that it joined the Confederate States and was at the time under military rule. Therefore, they decided on the merits of the bond issue. That is where the Court held that the Constitution did not permit states to unilaterally secede from the United States. Consequently, that meant that all the acts of the legislatures within the Confederate states were “absolutely null” and void. Hence, that decision was mandatory or the US would have to also honor the bonds of the Confederate States. That is why the 14th Amendment was passed stating that the Confederate states would not question the debt of the North, but there would be no compensation for the debt of the South.

Therefore, those who ridicule Scalia are just typical soap-box lawyers who pretend to know things they do not. Scalia’s response was correct for that was the precedent and we see that the same position is taken in Europe. Once you join, there is no divorce. We see the war in Ukraine is also over the secession of the Donbas. This was the difference between Lenin and Stalin. Lenin believed that the states could secede from the federation and Stalin said no way.

Scalia is correct. The power of the federal government will NEVER acknowledge any right of any state to secede. Scalia said that the Civil War decided that issue which is correct because any secession today would also have to be by force of arms – not in some court.

What people seem to wrongly think is that Justice Antonin Scalia made some ruling on this subject. Scalia was responding to a letter from a screenwriter working on a comedy dealing with secession in 2006. Scalia wrote he could not imagine such a case ever reaching the Supreme Court. Scalia wrote in 2006:

“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 said that the last attempt at secession also established a clear precedent.

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

1 Article I Section 10

Scalia is correct insofar as Texas v White established that there is no right to secede. However, there is no strict construction of the Constitution to support that. Many historians and legal experts also say the Civil War clearly established there is “no right” to secede. However, that was by force of arms – not law! Article I, Section 10 of the U.S. Constitution lists acts that states cannot undertake, and secession is not on that list. That was a decision that was biased and necessary at the time to prevent having to pay the debts of the South. The real question is when the United States breaks up, I seriously doubt that it will be a legal case asking permission. I personally believe that the Constitution does NOT prohibit secession. That is simply the self-interest of Washington and thus the only real right will be by force of arms. Anyone who claims otherwise is a toss-up between an idiot and a fool.

2nd Amendment

As far as Scalia’s decision in DISTRICT OF COLUMBIA et al. v. HELLER back in 2008, his strict construction came shining through. Many people who want to eliminate gun ownership argue that bearing arms was only for a militia that has been supplanted by a standing army and therefore the Second Amendment is no longer valid.

It was Scalia who shot that argument down. He held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(a) The Second Amendment’s prefatory clause announces a purpose but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the 2nd Amendment. Pp. 28–30.

(e) Interpretation of the Second Amendment by scholars, courts, and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47. That shows what I am talking about with strict construction. The liberal view would have said the right was tied to a militia exclusively. He wrote:

” We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. “

So I do not see where anyone can say that Scalia somehow rewrote the Second Amendment to deny gun rights. All things, including speech, have limits and regulations. It is not free speech to yell fire in a movie theater. Judge Amy Coney Barrett has vowed to follow Scalia. It was Apprendi v New Jersey, the decision championed by Justice Scalia was based upon strict construction. Before then, it was Judges deciding facts – not juries. The denial of a right to a jury trial was common practice in the United States. It was Scalia who change the Judiciary and defended the people. No other judge would protect citizens and finally, Scalia was able to convince others that this was a violation of the Sixth Amendment. Anyone who disparages Scalia must be a leftist who loves government power. Scalia had no problem ruling against the government.

When I got to the Supreme Court, they ordered the government to explain how they were keeping me in prison on civil contempt without a trial indefinitely when the law, 28 USC 1826, said the maximum sentence was 18 months. They were rolling it every 18 months. Only when the Supreme Court ordered the government to respond, then I was released and they told the court the case was “moot” for I was suddenly released. Without Scalia, I would probably have died in prison. He at least stood up for the law and 18 months was one-term, not indefinitely, where the NY judges protect the bankers. Trump will NEVER get a fair trial in NYC. From what I saw with others, nobody gets a fair trial in the Second Circuit or State court. When my case began, my lawyer, Richard Altman, said NYC practices law differently. Boy was that an understatement. Nobody should do business with any bank domiciled in NYC.