Monday, September 15, 2008

Texas and West Virginia

Having recently read and enjoyed a Michael Stokes Paulsen article entitled Lincoln and Judicial Authority, I checked to see what other works of his are available on SSRN. I've downloaded two that look quirky and interesting:

Is West Virginia Unconstitutional?:
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.

And Let's Mess With Texas:
Texas Republicans have been thinking waaaaay too small. The redistricting battles of 2003-2004 are nothing compared to the powerful political potential posed by Texas's prerogative, confererred by an Act of Congress, to divide itself into five states. A relatively obscure provision of the 1845 Joint Resolution for Annexing Texas to the United States provides that [n]ew States, of convenient size, not exceeding four in number, in addition to said State of Texas, and having sufficient population, may hereafter by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the federal constitution. This Essay argues, building on our earlier work concerning the constitutionality of the creation of West Virginia, that Article IV, Section 3 of the Constitution permits new states to be carved out of existing ones, with the consent of Congress and the states involved. The New States language of the 1845 Joint Resolution, the Texas Tots provision, constitutes the still-operative, legally-valid grant of Congress's consent to Texas's subdivision into five states. All that remains is for Texas to take up Congress's standing offer.


  1. I think most authorities hold that Texas's right, if it ever was valid, died with Texas's secession from the union. In any case, the readmission process following the Civil War did not allow for five states to be carved out of Texas.

  2. I live in West Virginia and when I'm on vacation, people look to see if i'm wearing shoes, sound astounded that I have a cell phone, we have cell service, and i don't talk with an accent. People even sometimes don't even know West Virginia is a state! Can someone please tell me what kinds of things you hear that make us look so bad?

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