Justice Scalia deals a major set back to the Tea Party movement

[usregimechange]

Scalia: "There Is No Right to Secede"


By Eric Turkewitz, New York Personal Injury Law Blog

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...


Scalia's letter (image file posted as well at the link below):

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.

http://www.newyorkpersonalinjuryattorneyblog.com/2010/02/scalia-there-is-no-right-to-secede.html

There you have it, the Tea Party movement may have just ended.

[leftofcool]

1. Works for Me. Perry, Palin and others, don't let the door hit you in the ass.

[sharesunited]

2. He needs to reconcile that with his 2nd Amendment views.

Citizens with guns are going to compel would-be secessionists to remain in the Union?

No. Guns are for insurrection and civil unrest.

[NoNothing]

3. Granted

But that's what we call "extralegal," i.e., it is completely outside the existing legal infrastructure. Scalia is right; according to the existing legal infrastructure, there is no right to secede *legally*. However, should the existing legal infrastructure be replaced then all bets are off.

Remember the old "4 boxes saying?" Soap, ballot, jury, and ammo? That roughly corresponds with the domain of change: opinion, political, legal, extralegal. The Constitution only officially recognizes the first three. The fourth would entail replacing (or reinventing) the Constitution itself.

[usregimechange]

4. Which is what some of them have in mind

[sharesunited]

5. Secede or pull it the hell down, macht nichst. Such gets no blessing from Scalia.

So why does he expend so many calories on trying to keep an anachronism like "militia" alive?

[NoNothing]

6. There's a slim chance he thinks the Constitution requires it

Regardless of his personal views on the matter.

[harkadog]

20. The 2nd Amendment is not dependent on the militia

No Constitutional scholar whether they favor the 2nd amendment or not suggests that.

[ThomWV]

22. Those are two interesting twists

I would simply say that the 2nd amendment provides the vehicle for insuring an individual's right to self defense - against a government gone wrong or other foes one presumes, but it would have nothing to do with secession.

[conscious evolution]

7. Anyone notice this?

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

[Blue-Jay]

8. Yeah. He forgot mention "under God".

[Morning Dew]

9. good catch!

lol

[MercutioATC]

10. He was speaking historically. "Under God" wasn't added until 1954.

Since he was talking about the times in which the original pledge was written, he used the original text.

No big mystery.

[usregimechange]

12. How to make a teabagger's head explode take two.

[conscious evolution]

14. The pledge was written in 1892

Well after the civil war.

[MercutioATC]

15. Yes, but much less recently than 1954.

[usregimechange]

11. Is he an atheist?

[enfield collector]

23. not necessarily, not all Christians try to force their religion on non-believers.

n/t

[Blackhatjack]

13. Ha! Tea Partiers Don't Recognize Authorities That Disagree With Them... n/t

[ashling]

16. Texas v. White, 74 U.S. 700 (1869)

The Court held that individual states could not unilaterally secede from the Union and that the acts of the insurgent Texas legislature--even if ratified by a majority of Texans--were "absolutely null." Even during the period of rebellion, however, the Court found that Texas continued to be a state.

That's the way we teach Constitutional Law here in Texas.

[donheld]

17. Is there a right for us to expell them?

[Initech]

18. Because you know how well that worked out the first time...

[Optimistic]

19. Go-Ahead, Make My Day

For those who want to leave...Leave and you just might get Nuked because you would be seen as the biggest threat ever to the security of the United States

[Winterblues]

21. USA...USA...USA...USA...

They truly don't know what the hell they want do they?