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Is West Virginia Constitutional?

Subpoena of West Virginia (Records of the Supreme Court, ARC 597545)

Subpoena of West Virginia (Records of the Supreme Court, ARC 597545)

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?

Breaking up is never easy, especially when a Civil War is under way. While the Virginia government in Richmond seceded from the Union in the spring of 1861, up in the town of Wheeling, delegates from the northwestern part of the state got together to counter-secede. These delegates said the government in Richmond had no right to leave the Union, and as such they now constituted the state of Virginia. Thankfully, to keep things from getting too complicated, they agreed to call themselves New Virginia, or more fancifully, “The Restored Government of Virginia” (Kanawha was another name under consideration).

By 1862, through some questionable electoral processes, the “Restored Government of Virginia” had written up a new Constitution and applied for statehood. After a few edits—Lincoln insisted they insert a provision gradually abolishing slavery—West Virginia was granted statehood in 1863. The 10th state in the Union gave birth to the 35th.

Virginia was none too happy about this. In a truly ironic moment, the Virginia General Assembly sued West Virginia, saying the right to secede was unconstitutional and demanded the return of a few counties that were not included in the original boundaries of West Virginia.

As with all national-level spats, this one went up the Supreme Court as Virginia v. West Virginia.

petition306643

Petition to the House of Representatives to admit West Virginia into the Union (Records of the House of Representatives, ARC 306643)

The odds were stacked against the Old Dominion State. There was not a single Justice from the South on the Supreme Court, and the Chief Justice was none other than Salmon P. Chase, a Lincoln appointee who was approved by the Senate at a time when there was no Southern representation in the Capitol.

Not surprisingly, things didn’t go well for Virginia. The Supreme Court dodged the question of whether West Virginia’s existence was constitutional and instead focused its attention on the specific counties referred to in the trial. West Virginia got to keep them, and its statehood.

**Author’s Note: One of our readers, Noah, was quick to point out that West Virginia is not the only state to be born out of another state, in fact, it was not even the first as previously reported here. In 1820, the State of Maine entered the Union, born out of Massachusetts territory as part of the Missouri Compromise. Further comments and investigation show that other states were born out of states include Kentucky and parts of Tennessee. Thank you, all!

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Comments

Comment from Les Newcomer
Time November 8, 2010 at 1:08 pm

I’m a bit confused. If Virginia seceded from the Union and became part a new country: The Confederate States of America, then WV didn’t carve itself out of a state. BUT if Virginia was part of the CSA how could it sue in Union court?

Rob Crotty Reply:

Les, good question on a confusing subject.

The delegates who comprised what would become West Virginia believed that Virginia could not leave the Union. So when Virginia seceded, those delegates filled up all the empty state positions that were vacated by the politicians who seceded (like the governor and state legislator positions). This meant that for a while there were actually two Virginias, a Union Virginia and a Confederate Virginia. Under the banner of the “Restored Government of Virginia” that Union Virginian government then created their own Constitution and applied for statehood, eventually becoming West Virginia in 1863.

After the Civil War, when Confederate Virginia re-entered the Union, it sued West Virginia claiming that parts of its territory rightfully belonged to them.

Comment from Noah
Time November 8, 2010 at 8:12 pm

Interesting piece, though I must disagree with the claim that West Virginia is the only state to be born of another state. I refer you to the state of Maine, born of Massachusetts as part of the Missouri Compromise.

Comment from Rob Crotty
Time November 9, 2010 at 9:35 am

Noah, I’m constantly impressed with the depth of knowledge the readers have here. You are absolutely correct that Maine was also born out of another state. I have printed a correction.

Comment from Rebecca
Time November 9, 2010 at 2:10 pm

Kentucky was also born from Virginia. Kentucky was originally Kentucky County, Virginia. It became our 15th state on June 1, 1792.

Rob Crotty Reply:

Rebecca, that post’s final sentence has caused me a bit of heartburn. Noah was right about Maine, you’re right about Kentucky, and parts of Tennessee also used to be part of North Carolina (and before Tennessee joined the Union, they also tried to form the state of Franklin out of these counties and a few others.) Now wherever I look I see states coming out of other states. Many thanks for your spot-on comment.

Comment from Jim
Time November 9, 2010 at 9:56 pm

Two notes that are also of interest:

WV was not constructed entirely of Unionists as several counties now in WV actually voted for the secession of VA from the USA.

Chief Justice Chase also presided over Texas v. White (1869) another case in which a former Confederate State argued against the legality of secession.

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Time November 11, 2010 at 9:24 am

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Comment from Greg
Time August 24, 2011 at 10:54 am

Great article! This is a question that has long interested me. I’m firmly in the WV is unconstitutional camp. BTW, you mention Kentucky, also once part of Virginia, & Tennesee (formerly part of North Carolina)which nearly came into the union as the State of Franklin, but there’s one more you left out. Vermont which began life as part of New York State.

Comment from Tim Duskin
Time August 22, 2012 at 10:56 am

The other states formed from other states were formed with the consent of the Legislatures of the States of which they had formerly been part, in accord with Article IV, Section 3 of the Constitution. That was not the case with West Virginia.

Comment from BRIAN
Time January 9, 2013 at 7:21 pm

IN THE CONSTITUTION YOU CAN NOT MAKE A STATE OUT OF A STATE GEORGE WASHITON SIGHINED ON IT AND THOMAS JEFFERSON AND RICHARD HENERY LEE WROTE THE THE INDPENDENCE JULY 4,1776 AND IT SAYS IF A STATE OR STATES ARE TREATED UNFARLY THEY HAVE A RIGHT TO CHALLANGE THAT SAID UNCONSTITUTIONAL LAWLESS GOVERMENT AND FORM THERE OWN GOVERMENT AND DRAFT A NEW CONSTITUTION AND IT PASSES BY A VOTE NOW THOSE STATES TAKE THERE INDEPENDENCE AFTER A INDEPENDENCE CONVENTION AND PUT IT TO A VOTE AND IF THE VOTE PASSES THEN THEY CAN JOIN THAT GOVERMENT FOREVER. THEY CAN NOT BE FORSED TO JOIN BACK TO A UNCONTITUTIONAL LAWLESS GOVERMENT !! THAT HOW IT WORKS!!