Justice Scalia replied to the man:
"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.Scalia is right about one thing: such a question would more than likely never go before the Supreme Court. The Court would not want to touch this issue with a ten foot pole. And even if it did, a state willing to secede surely would not be bound to the decision of the Court as if it opinion mattered. Why waste your time? Would the state really just rejoin the union based on a Court ruling?
I am sure that poetic license can overcome all that -- but you do not need legal advice for that. Good luck with your screenplay."
What is alarming about his response is Scalia's insisting that the issue was settled by the so-called "Civil War". Of course, the Constitution itself must be the authority--not the Court and definelty not a war. If went to war over the freedom of the press and those who seek to do away with free press proved the victor, surely we would not exclaim, "There is no right to a free press. The free pressers lost the war." Such a reliance on victory in war is outrageously absurd. Might does not thwart the rule of law. That is tyranny of the majority, which is just as vile a despotism as tyranny of a single agent.
The disturbing factor continues as Scalia looks to the pledge of allegiance as his source of confirmation. The pledge has no connection to the Founding, was written by a self-admitted socialist, and is merely a modern invention to show submission to the state. Surely, fans of liberty should not be fans of the Pledge. "One nation...indivisible" may be a post "War of Northern Aggression" truism, but it is not binding in any manner.
Of course, we know that based on the nature of the Constitution--a voluntary compact among states--that secession is constitutionally permissible. The triumph of might does not mean that the issue has seen the prevalence of right. Moreover, our history is one of secession; we have done it ourselves and often supported it by others. Talk of it is healthy, and we should not dismiss it quickly without being truthful to our own history and our own founding documents.
I am sure Justice Scalia's statement was made in haste and wit, not expecting it to surface publicly. If he is ever truly called upon to rule on the issue, I hope the Constitution--not Union military success--will be his guide.