Is West Virginia constitutional?
The Mountain State's status is no longer just academic fodder, relegated to obscure law review articles. No less than the National Archives is raising the question. A special section devoted to West Virginia's 150th anniversary of statehood notes:
On the creation of new states, the Constitution is pretty clear. Article IV, Section 3, reads that "no new States shall be formed or erected within the Jurisdiction of any other State ... without the Consent of the Legislatures of the States concerned as well as of the Congress."
It appears that someone forgot to tell West Virginia about this. In 1863, the Mountain State carved itself out of the northwestern corner of the Commonwealth of Virginia, raising the question: Is West Virginia unconstitutional?
The archives notes that West Virginia was created as a separate state during the Civil War, when a Republican Congress recognized that 55 mountain counties with few slaves had seceded from Virginia and admitted them to the Union in 1863.
What's now known as West Virginia was long part of the Virginia colony, which became a state after U.S. independence. Long discontented with electoral malapportionment and underrepresentation in the state legislature, its residents became sharply divided over the issue of secession from the Union during the Civil War.
Residents of the western and northern counties set up a separate government under Francis Pierpont in 1861, which they called the "restored" government. Most voted to separate from Virginia and the new state was admitted to the Union in 1863. In 1864 a state constitutional convention drafted a constitution, which was ratified by the legislature without putting it to popular vote. West Virginia abolished slavery and temporarily disfranchised men who had held Confederate office or fought for the Confederacy.
But when West Virginia was deemed a state by the U.S. government Virginia did not give its assent. Virginia had seceded to join the Confederacy, and so did not give its assent to West Virginia's statehood, as the Constitution seemingly requires.
Sure, Virginians had arguably committed treason against the U.S. by trying to secede. But Abraham Lincoln's administration always recognized seceded states as still being fully in the union. So under the Lincoln administration's own interpretation of constitutional law West Virginia was not admitted into statehood through all necessary constitutional niceties.
It's been a raging debate among law professors for years. A 2002 UC Berkeley Law Review article drilled down into the question of West Virginia's constitutionality. Law professors Vasan Kesavan and Michael Stokes Paulsen wrote:
When the Commonwealth of Virginia announced it was seceding from the Union, the northwestern corner of Virginia formed a rump government-in-exile, declared itself the lawful government of Virginia, and gave "Virginia's" consent to the creation of a new State of West Virginia consisting of essentially the same northwestern corner of old Virginia. Congress and the Lincoln administration recognized the northwestern rump as the legitimate government of Virginia, and voted to admit West Virginia as a State.
Could they do that? This article takes on the odd but amazingly complicated (and occasionally interesting) constitutional question of whether West Virginia is legitimately a State of the Union or is instead an illegal, breakaway province of Virginia. While scarcely a burning legal issue in the twenty-first century, the question of West Virginia's constitutionality turns out to be more than of just quaint historical interest, but also to say a great deal about textualism and formalism as legitimate modes of constitutional interpretation today.
Nobody today is actually advocating returning West Virginia to its parent state Virginia. West Virginia's been self-governing for a century-and-a-half. Not to mention, the cultures of the states are in many ways quite different.
But if some renegade Virginia politician tries to stir up publicity by laying claim to the state's eastern neighbor, don't be so surprised.