Monday, July 28, 2008

Is West Virginia Unconstitutional?

In matters relating to secession and the Civil War, I'm generally a Union guy. But the fact remains that in analyzing the issues, sometimes the Union position just doesn't wash. You have to take your historical facts as you find them and take an honest look at the arguments.

It's hard, for example, to disagree with the late David M. Currie's conclusion that the establishment of the State of West Virginia was plainly unconstitutional. Article IV, Section 3 of the Constitution provided (and still provides) in relevant part:
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

In a nutshell, when the state of Virginia voted to secede, loyal citizens in the northwestern part of the state elected delegates to a convention, which met in Wheeling in June 1861. The convention declared the chief state offices of the state vacant by reason of treasonable behavior of the incumbents and replaced them. It also redefined a quorum of the Virginia legislature as a majority of those members who took an oath to support the federal Constitution, ordered a referendum of the question whether a new state should be formed, and provided for the election of delegates to a constitutional convention.

The voters endorsed the creation of a new state, the constitutional convention drafted a constitution, and the voters endorsed it. The new "Virginia" legislature (using the quorum trick) then "consented" to the formation of a new state from Virginia and petitioned for its admission.

Did the state of Virginia grant its "Consent" to the creation of the new state? Only 38 of Virginia's 160 or so counties were represented in the new legislature. Kentucky Senators Lazarus W. Powell and John J. Crittenden and others argued at the time that the answer was plainly "no." In Senator Crittenden's words, "[H]ere is an applicaton to make a new State at the instance of the parties desiring to be made a new State, and nobody else consenting . . . . It is the party applying for admission consenting to the admission."

Professor Currie concludes that "[t]hese arguments seem to me quite irrefutable."
I think opponents of the West Virginia bill were right that the self-styled "Virginia" legislature was a farce and a sham, but the new state was admitted anyway. I suspect you're no more surprised than I am.

It goes without saying that I strongly urge anyone interested in the topic to read Professor Currie's far more thorough and subtle analysis in its entirety. It appears at pages 1201-1210 of the article linked above.


  1. Stephen Keating9:05 AM

    This has always been a question that I have been interested in. Since it was the Lincoln's administrations policy that the Constitution was still in effect (Virginia only being in rebellion, not having secceded, then the creation of West Virginia is unconstitutional. It was more of a way to create good news in 1862, an otherwise bad year. I had heard that WVa was the last state admitted as a slave state. Do you know if this is true?

  2. Stephen,

    Thanks for stopping by, and thanks for your comment.

    You are indeed correct. West Virginia applied for admission as a slave state. Congress voted to admit it as a state subject to the condition that its constitution be revised to provide for the gradual abolition of slavery. Charles Sumner wanted to require immediate abolition as condition, but his proposed amendment was defeated. West Virginia amended its constitution to comply with the condition, and the President declared it a state on April 23, 1863.

  3. stephen keating10:33 AM

    Thanks for the info!

  4. Anonymous1:43 AM

    A more important question would be "Was West Virginia Created by the People of West Virginia?" I quote one of the Wheeling legislators at the Constitutional Convention on Dec. 10, 1861. Mr. Stuart of Doddridge County-"Now, Mr. President, to show you, and it needs but to look at the figures to satisfy the mind of every member, that even a majority of the people within the district of the thirty-nine counties have never come to the polls and expressed their sentiments in favor of a new State. In a voting population of some 40,000 or 50,000 we see a poll of only 17,627, and even some of them were in the Army." They added 11 more counties to the new state and 9 of them were heavily Confederate. If you want to know the real story of West Virginia read Richard Curry's "A House Divided".

  5. I've been thinking about. As it has been the particular Lincoln's organizations coverage how the Make-up was still being in place (Va simply in revolt, without having secceded, then your coming of Western Va is actually unconstitutional

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