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Justice Scalia "There is no right to secede

 
Nailer45
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Justice Scalia "There is no right to secede
Tuesday, February 16, 2010

Scalia: "There Is No Right to Secede"

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.

The inspiration for writing, and the release of the letter, comes from Prof. Eugene Volokh, who wrote, "I keep hearing the claim that the legitimacy of secession from the U.S. was 'settled at Appomattox,' and I wanted to say a few words about why I think that makes little sense."

The good prof goes on to write that, while clearly not supporting secession of any State in concept, that the issue is far from settled. He writes:

If in 2065 Alaska, California, Hawaii, or Texas (just to consider some examples) assert a right to secede, the argument that "in 1865, the victorious Union government concluded that no state has a right to secede in opposition to the wishes of the Union, so therefore you lack such a right" will have precisely the weight that the Americans of 2065 will choose to give it -- which should be very little.
Thus far, that post has generated 152 comments.

Well prof, Justice Scalia disagrees with you. Explicitly. Why did he do so in a letter to my brother? Glad you asked.

Dan is a screenwriter (whose screenplay Tranquility Base was just named a finalist at the Vail Film Festival, and previously took top honors elsewhere). Back in 2006 he started working on a political farce that had Maine seceding from the United States and joining Canada.

Bro was well ahead of the tea partiers in contemplating impending problems as we racked up massive debt. This doesn't get him an agent or a foot in the door of Hollywood to get his screenplays made into films -- it isn't what you write, but who you know -- but it does make him a prophet of sorts.

So, on a lark, he wrote to each of the 10 Supreme Court justices (including O'Connor) with this request:

I'm a screenwriter in New York City, and am writing to see if you might be willing to assist me in a project that involves a unique constitutional issue.

My latest screenplay is a comedy about Maine seceding from the United States and joining Canada. There are parts of the story that deal with the legality of such an event and, of course, a big showdown in the Supreme Court is part of the story.

At the moment my story is a 12 page treatment. As an architect turned screenwriter, it is fair to say that I come up a bit short in the art of Supreme Court advocacy. If you could spare a few moments on a serious subject that is treated in a comedic way, I would greatly appreciate your thoughts. I'm sure you'll find the story very entertaining.

I told Dan he was nuts. I told him his letter would be placed in the circular file. And then Scalia wrote back. Personally. Explicitly rejecting the right to secede:


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.


So there you have it. At least one vote solidly on record as saying that there is no right to secede. And it likely comes from a place the right wing secessionists most wanted to have a vote.

And yes, Dan still needs an agent. Because writing great scripts isn't enough if you don't know The Powers That Be on the other coast. And, for what it's worth, his now-completed script of Maine joining Canada is better than his award-winning one about a mis-adventure in space.



[link to www.newyorkpersonalinjuryattorneyblog.com]






(Update: -- Welcome new readers...there seems to be a fair share of incoming to this little joint)

Update #2 -

The Supreme Court's Other Responses to the Screenwriter's Secession Question (2/21/10)
How the Supreme Court Could Hear the Secession Issue (A Response to Justice Scalia) (2/23/10)

Elsewhere on the issue of secession:

Why the Issue of Secession Isn't "Settled" (Somin @ Volokh)
...I will say that I don't think that secession is either clearly unconstitutional...
Secession in the Air (Patrick Buchanan)
No, it is not 1860 again.

But with all the talk of the 10th Amendment, nullification and interposition, states rights and secession -- following Gov. Rick Perry's misstatement that Texas, on entering the Union in 1845, reserved in its constitution a right to secede -- one might think so.
nope poll: Nearly one-third of Georgia Republicans favor independence from U.S. (Jim Galloway @ AJC - with 670 comments to date)

Nearly one-third of Georgia Republicans would be in favor of leaving the United States, its polling shows. Pause here for any ironic thoughts about the party of Abraham Lincoln that suddenly spring to mind.
Poll: Texas Republicans Approve Of Rick Perry's Secession Remarks (TPM)
A new nope/Research 2000 poll finds that Rick Perry's suggestion at the Tea Party last week, that Texas might have to secede from the Union, actually has significant support from his home state's Republican voters.
Glenn Beck: Secession or Suicide (Jason Linkins @ Huffington Post)


But you can't convince me that the founding fathers wouldn't allow you to secede. The Constitution is not a suicide pact. And if a state says, I don't want to go there, because that's suicide, they have a right to back out. They have a right.
Texas v. White a Roadblock To Secession; But It Might Also Provide an Escape Route (Brian Stanley @ Lew Rockwell)
In the 1868 case of Texas v. White, 74 U.S. (7 Wall.) 700, a case dealing with the title to some U.S. bonds, the Supreme Court ruled that Texas', and hence the South's, attempted secession in 1861 was unconstitutional. But the opinion also contained some wording that might give secessionists a way around White.
Labels: Antonin Scalia, Dan Turkewitz, Secession
Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.
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Anonymous Coward
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02/25/2010 08:23 AM
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Re: Justice Scalia "There is no right to secede
bump
Anonymous Coward
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02/25/2010 09:03 AM
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Re: Justice Scalia "There is no right to secede
The Civil War was fought because the industrialists of the North wanted control of the South. The South did not want to be controlled by the North. The 'Union' states army fought against the 'Confederate' states army. The North took over the southern states using military force. What Scalia is basically saying is that any state that tries to secede from the Union will be subjected to the use of whatever force is neccessary to keep them in the Union. Discontent with the present 'governments' actions, legal and illegal, against the people of this nation, and against people of other nations, is at an all time high. Recent incidents seem to indicate that the boiling point has nearly been reached. What will happen? Nothing good.
Anonymous Coward
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02/25/2010 09:11 AM
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Re: Justice Scalia "There is no right to secede
Ok Mr. Scalia....

Lets talk Virginia v West Virginia....

1911....

1916....

1866....
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02/25/2010 09:22 AM
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Re: Justice Scalia "There is no right to secede
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to 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 shown 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.

It's not "just" a right. It's a DUTY.
Anonymous Coward
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02/25/2010 09:22 AM
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Re: Justice Scalia "There is no right to secede
Ummmm...secession would in itself NEGATE the notion of being bound by the federal constitution. In effect, it would be a declaration of sovereign status by any state doing it. So SCOTUS and any of its members opinions would be a moot point at that juncture.
Evil Twin

02/25/2010 09:25 AM
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Re: Justice Scalia "There is no right to secede
Ummmm...secession would in itself NEGATE the notion of being bound by the federal constitution. In effect, it would be a declaration of sovereign status by any state doing it. So SCOTUS and any of its members opinions would be a moot point at that juncture.
 Quoting: Anonymous Coward 895313

Indeed.

I wonder how far the federal government would go to prevent a single state from secession.
ShadowDancer

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02/25/2010 09:28 AM
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Re: Justice Scalia "There is no right to secede
scalia

is rude as ever



pathetic


us as a country is one thing but the us as a cWHOREporation another thing entirely


subterfuge maximus

like their so-called "federal reserve" and many of the supposed agencies held by this country...are not as much as many would think-

It is a duty as I read it from the original intent-a solemn DUTY to stand against tyranny or fascism

their "peace" will be wrought by destruction of the MASSES if possible, even as they neglect their oaths now, they will account
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HL Shancken

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02/25/2010 09:30 AM
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Re: Justice Scalia "There is no right to secede
Legitimacy is in the eye of the beholder and in the thing itself. While the beholder of a thing might never wish to confer on it legitimacy, the longer that thing exists, the more it endures or withstands and yet still exists, is proof of its legitimacy, at least on a pragmatic and practical level.
A revolution worth joining. Holistic medicine's finest hour.
Ben de la Vega

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02/25/2010 09:33 AM
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Re: Justice Scalia "There is no right to secede
Let's keep in mind that Texas is a republic not a state and we do have a right to secede. But will we, hell no since this state is run by idiots as well as the rest of our country.

My city of El Paso has wanted to be part of New Mexico for years. This would make El Paso the largest city in the state which would bring extra money for schools and so on.
Cielo Vista Meteorites
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Re: Justice Scalia "There is no right to secede
The Civil War was fought because the industrialists of the North wanted control of the South.
 Quoting: Anonymous Coward 900212

Bzzt--sorry, you fail History 101. The southern states seceded precisely because they demanded the blasphemous "right" to enslave humans:

[link to americancivilwar.com]

[link to americancivilwar.com]

[link to americancivilwar.com]

[link to americancivilwar.com]

The Civil War actually started when the southern states brazenly attacked Fort Sumter without provocation:

[link to en.wikipedia.org]
Anonymous Coward
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02/25/2010 09:35 AM
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Re: Justice Scalia "There is no right to secede
Ummmm...secession would in itself NEGATE the notion of being bound by the federal constitution. In effect, it would be a declaration of sovereign status by any state doing it. So SCOTUS and any of its members opinions would be a moot point at that juncture.

Indeed.

I wonder how far the federal government would go to prevent a single state from secession.
 Quoting: Evil Twin


I would think the FIRST state to try to do so would face overwhelming opposition as the fedgov would very accurately see this as the start of a domino effect. Their response would be limited by a great many factors though: what troops would be used, would said troops be willing to fight in what would be a civil war, and can they even afford it anymore considering how thin the armed forces are stretched as it is?

If it is a well-armed and geographically large state like Texas, the fedgov would likely ultimately fail (especially if other individual states...or groups of states take this as a green light and create a civil war on multiple fronts). If it were a state like Vermont (and they stood alone) the fedgov would likely prevail and thus squash attempts by other states by force of example.
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Re: Justice Scalia "There is no right to secede
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to 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 shown 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.

It's not "just" a right. It's a DUTY.
 Quoting: Anonymous Coward 900157


What 'new guards'? The Patriot Act? The Department of Homeland Security? The 'CDC'? The 'WHO'? The 'Free Market'? The ABC 'security measures' being used to enslave, not free, humanity? WAKE THE HELL UP!
Anonymous Coward
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Re: Justice Scalia "There is no right to secede
As soon as Rick Perry had the nerve to talk about secession I knew it was all populist bullshit propaganda.

He's a globalist, a card carrying CFR member, and also a member of the billderburgs.

Neoconservatives are using Joe Stack as an inspiration even though he was a domestic terrorist and stated in his suicide note that he hated Bush.

What i'm getting at is that you fucking neoconservatives are worthless. As bad as, if not worse, than the progressive fucking liberals. Both "sides" buy right into this mind control bullshit.

Yuck!
HL Shancken

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02/25/2010 09:38 AM
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Re: Justice Scalia "There is no right to secede
Scalia is pointing out the correctness of Mao's maxim that power derives from the barrel of a gun.
A revolution worth joining. Holistic medicine's finest hour.
Evil Twin

02/25/2010 09:40 AM
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Re: Justice Scalia "There is no right to secede
Scalia is pointing out the correctness of Mao's maxim that power derives from the barrel of a gun.
 Quoting: HL Shancken

ohyeah
Anonymous Coward
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02/25/2010 09:43 AM
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Re: Justice Scalia "There is no right to secede
No need to secede, simply blockade irs buildings and raise state taxes.
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Re: Justice Scalia "There is no right to secede
Scalia is pointing out the correctness of Mao's maxim that power derives from the barrel of a gun.

ohyeah
 Quoting: Evil Twin

TRUE DAT!!!

damned dick
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Re: Justice Scalia "There is no right to secede
Do we have the right to "fail".
... get it? right to Succede right to fail ... chuckle

I'm too big to fail.

.
Anonymous Coward
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Re: Justice Scalia "There is no right to secede
Use reserves to eliminate the top 1%. Low casualties, instant balance.
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Re: Justice Scalia "There is no right to secede
Use reserves to eliminate the top 1%. Low casualties, instant balance.
 Quoting: Anonymous Coward 723406


Stir & repeate every 5 years.
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Re: Justice Scalia "There is no right to secede
I wonder how far the federal government would go to prevent a single state from secession.
 Quoting: Evil Twin





Probably pretty far.

Once the damn is broken, there would be a tidal wave of states seeking to throw off the federal yoke. And they absolutely have that right because of:

1) the treasonous false flag operation on 9/11
2) the treasonous anthrax attacks post 9/11
3) the engineered economic crash underway
4) the wholesale theft of America's treasury to Wall Street and (as of yet) unknown parties.


The Federal government is not some deified agency. It is a government that has completely, utterly failed and turned wholly to criminal enterprise. We have an absolute DUTY to throw it off.
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Re: Justice Scalia "There is no right to secede
Texas should invade Mexico then secede. laugh
gsbltd

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02/25/2010 10:02 AM
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Re: Justice Scalia "There is no right to secede
There is in the U.S. Constitution the context of a legal theory that allows individual states to enforce an action called nullification.

Nullification gives each and every state the power to completely reject -or nullify- any law made by the federal government. And, it had some serious support when the U.S. Constitution was being written, notably from Thomas Jefferson and James Madison. John C. Calhoun proposed a hybrid concept that would allow states to nullify but required wider support should a state wish to secede.

Little-known and rarely used, nullification is the SINGLE means the states retain to combat a federal government that no longer represents its constituency. The state legislature merely has to debate the opposed federal law, declare it unconstitutional within the state borders and the deed is done. PERIOD.

Just don't expect your local state capitol to use it in any major way, as the political fallout can be tremendous. You see: it was the enaction of nullification that allowed the southern states to secede from the union that led the nation into the Civil War. And, as they say: "once burned - twice shy."

NO state will today take such a dramatic step as nullification for fear of repeating history.

Or: WILL they?

BTW: Justice Scalia's comments notwithstanding, nullification still exists and COULD be used anytime in any of the 50 United States, although I'm not certain the extent a protectorate could enact such a measure.

Last Edited by gsbltd on 02/25/2010 10:22 AM
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Re: Justice Scalia "There is no right to secede
Scalia is pointing out the correctness of Mao's maxim that power derives from the barrel of a gun.
 Quoting: HL Shancken


Wow, how very apt to use Mao and a Supreme Court Justice in the same sentence.

I weep for our country. This powderkeg is not a very comfortable spot to be.

Best I can offer is "let there be peace on earth and let it begin with me....brothers all are we, let me walk with my brother in perfect harmony". Naive, I know.
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Re: Justice Scalia "There is no right to secede
Was it not called the War of Northern Aggression? They forgot oft that they are put there to serve the peoples best intrest above themselves, when they fail and show us their true colours, well, what has history shown? We will not go softly into the night.
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Re: Justice Scalia "There is no right to secede
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to 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 shown 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.

It's not "just" a right. It's a DUTY.
 Quoting: Anonymous Coward 900157


Anonymous Coward
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02/25/2010 10:27 AM
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Re: Justice Scalia "There is no right to secede
I want to make my own state too, unfortunately german nazicops will arrest me and take my country.
Feels good to live in an advanced society.
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02/25/2010 10:28 AM
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Re: Justice Scalia "There is no right to secede
Was he the one that took all those pills, what were they plasidills or something?
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02/25/2010 10:31 AM
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Re: Justice Scalia "There is no right to secede


 Quoting: Anonymous Coward 897334




I fail to understand why these people resort to machine voice in their videos. It's bogus.

If they don't want to use their own voice, why not hire someone for $1.98 to rear the script.
gsbltd

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02/25/2010 10:32 AM
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Re: Justice Scalia "There is no right to secede
On this same topic: whatever became of the legal war an Indian Nation was waging against the fed to reclaim their ancestral land and declare it a sovereign nation? This territory ate up most of Nebraska and involved several northern plains states. It hit the news a couple of years ago, I think.

I cannot recall the name of the tribe that was pushing for this... but I remember a lengthy post here on GLP at the time that carried ALOT of support for those brave "orginal Americans!"

Their new nation was going to accept applications from anyone who wanted to live there; they would issue their own currency and administer their own constitution and related laws.

Last Edited by gsbltd on 02/25/2010 10:33 AM

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