The UnConstitutionality of West Virginia
2011 is the 150th anniversary of the start of the Civil War, and in commemoration, the New York Times has been running a series called "Disunion." This series offers a number of eyewitness accounts as well as historical analyses of the events that split the Union. You can follow it on Facebook. If anyone is a Civil War or American history buff, I highly recommend it.
In the spirit of "Disunion," I offer the following analysis. It turns out that West Virginia can't be a state.
Why? Well, the Constitution of the United States says that no state can be formed by dividing a state, or by combining parts of different states, without the consent of the state legislatures of the affected states.
The thing is, what is now called "West Virginia" used to be part of the State of Virginia. "West Virginia" was formed only when the legislature of the State of Virginia decided to secede from the Union in 1861. Representatives from the mountain counties of Virginia decided that they did not support the decision of the Virginia state legislature to secede from the Union. Instead, the representatives from these counties decided to declare themselves the REAL legislature of the State of Virginia, and to call for the separation of the western, mountain counties of Virginia from the eastern, tidewater counties, into the new state of West Virginia.
Abraham Lincoln, not being an idiot, jumped at this opportunity. He immediately declared the representatives of the western counties of Virginia to be the "real" legislature of Virginia, and thus insisted that they had the legitimate right to call for the separation of the western counties of Virginia into a new state, West Virginia. Technically, then, the creation of "West Virginia" would be constitutional, since it was the "legitimate" legislature of Virginia that had called for the separation--at least according to Abraham Lincoln.
Except, of course, that Lincoln ALSO insisted that the state legislature in Richmond, Virginia did not constitute the legislature of an alternate government to that of the United States. That is, Lincoln refused to accept that the Richmond-based legislature represented a competitor government to that recognized by the Congress in Washington, DC. Indeed, throughout the Civil War Lincoln insisted that the southern states were simply areas "in rebellion against the government of the United States" (as he put it in the Emancipation Proclamation), not that they were representatives of a competitor government to that based in Washington, DC. In other words, he never acknowledged that the Richmond, Va., government had ceased being the legitimate government of the State of Virginia--meaning that Richmond's consent was required for the creation of the State of West Virginia. A consent that was never offered--as was required by the US Constitution.
It is thus clear that West Virginia cannot be part of the United States.
Of course, I don't teach or live in West Virginia, so this is probably a lot easier for me to say than it might be!
