U.S. Supreme Court

Scalia Opines on Right to Secede in Letter to Screenwriter

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Do states have a right to secede from the union? The issue is generating some debate on blogs after Texas Gov. Rick Perry told a “tea party” rally that Texans could get so fed up with big government that they may some day seek that option.

It turns out that Justice Antonin Scalia has weighed in with his views, in a letter to a legal blogger’s screenwriting brother. Scalia tackled the constitutional question (there is no right to secede, he says) as well as the possibility of a Supreme Court showdown over the issue (don’t count on it).

Lawyer Eric Turkewitz explained the genesis of the letter at his New York Personal Injury Law Blog. Turkewitz says his brother, Dan, wrote to all the justices on the U.S. Supreme Court asking about the right to secede. Scalia was the only one to reply.

The screenwriter was working on a political farce in 2006 about Maine seceding from the United States, and he envisioned a Supreme Court showdown.

Justice Scalia didn’t side with Maine.

“I cannot imagine that such a question could ever reach the Supreme Court,” Scalia wrote. “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. … 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 goes on to say he is sure that “poetic license” can overcome the legal issues.

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