With that said, numerous lawyers and historians have argued that the Mountain State was formed illegally, a passage that many West Virginians — or at least the ones I know — may wear as a badge of honor.
Rob Crotty, a historian who writes for the National Archives’ website stated the following regarding this subject:
“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.
“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.”
In the end, I don’t see West Virginia ever falling back under the control of leaders in Richmond, but it is an interesting question to ponder and perhaps, a source of pride for folks who take great pride in making their own rules!
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