Is West Virginia Unconstitutional?

On this date in 1862 President Abraham Lincoln authorized the creation of West Virginia as the nation’s 35th state. The new state consisted of the pro-Union, anti-Confederate counties of northwest Virginia. West Virginia officially achieved statehood status on June 20, 1863 after it added an anti-slavery provision to its state constitution.  

But West Virginia’s admission into the Union generated constitutional controversy. Even some members of Lincoln’s cabinet objected on the grounds that carving West Virginia out of Virginia violated the United States Constitution. West Virginia’s opponents based their arguments on Article IV, Section 3:

New states may be admitted by the Congress into this union; but no new states 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.  (Emphasis added.)

The constitutional objections boiled down to two arguments. First, opponents pointed out that the state legislature in Richmond never consented to the creation of West Virginia. Instead a pro-Union, provisional Virginia legislature hastily assembled in the Appalachian town of Wheeling approved the new state of West Virginia. Even in the North many questioned the legitimacy of the Wheeling government. Nevertheless, after considerable debate and controversy, Congress passed the West Virginia statehood bill and Lincoln signed it into law on December 31, 1862. Long afterward critics argued that only the Richmond legislature—which at the time was in a state of war with the United States government—had the constitutional authority to consent to West Virginia’s creation. 

The second objection was more fundamental, focusing on the second clause of Section 3. West Virginia’s opponents argued that the semicolon following “within the jurisdiction of any other state” should be read as a period, not a comma. Thus, as the opponents saw it, Section 3 absolutely barred Congress from creating a breakaway state out of the territory of another state, regardless of whether the original state consented. 

But were the critics right?

The Kesavan-Paulsen Article 

In a classic 2002 article in the California Law Review titled “Is West Virginia Unconstitutional?” Vasan Kesavan and Michael Stokes Paulsen addressed the “amazingly complicated question of whether West Virginia is lawfully a State of the United States.” Adopting the same logic that Lincoln himself did, Kesavan and Paulsen concluded that the Wheeling legislature constituted the lawful government of Virginia because it represented a majority of Virginia’s loyal citizens during the Civil War.

In addition, on the broader issue of whether Section 3 permitted breakaway states, they determined that West Virginia is “probably” constitutional:

“The first-best evidence of the original public meaning of Article IV, Section 3—the text—is ambiguous. The second-best evidence—the history—better (though imperfectly) supports the interpretation that new States may be formed or erected within the jurisdiction of another State with the appropriate consents. The secret drafting history clearly shows that this interpretation was intended. Only if one ascribes presumptive (or more) significance to the semicolon and the last-antecedent canon; leans against the position of both advocates of the Constitution (James Madison) and opponents (Luther Martin); treats as immaterial the construction placed on Article IV, Section 3 by early Congresses; and ignores the records of the Philadelphia Convention suggesting a contrary specific intention and understanding (even if not public) can one conclude that the second clause of Article IV, Section 3 is a flat prohibition on new breakaway States. One has to work hard to adopt the destructive interpretation, and as we noted earlier, even that interpretation is not conspiracy-proof. The better conclusion, though by no means an unassailable one, is that new breakaway States are permitted with the appropriate consents, and that West Virginia (and Kentucky, Maine, and to the extent still in doubt, Vermont) are constitutional.”

The article is absolutely fascinating and you can find it here on the California Law Review website. As Kesavan and Paulsen observe in their article:

“The truly amazing thing about the Civil War era in this regard is not that there was some breaking of legal rules and legal forms. Civil wars and reconstructions are decidedly messy business. The truly amazing thing is how little legal breakage there was in the American Civil War, how much constitutional propriety remained in the forefront, and how much that constitutional propriety was measured in formal, literal terms. We got through the Civil War precisely because Lincoln anchored his theory of the war in the Constitution. Similarly, West Virginia is legitimately a State of the Union because the loyalists followed the letter of the constitutional law.”

A Nation of Red and Blue Counties

The issue of state fragmentation is more than just a historical curiosity. In this era of extreme hyperpolarization, we often describe our country as divided between red states and blue states. But that is not a fully accurate description of America in the 21st century. What we really have are red counties and blue counties, a patchwork quilt of partisan allegiance that suggests the West Virginia precedent may have rising significance in the years ahead.

The county-by-county divide becomes clear when you examine this revealing precinct-by-precinct map of the 2016 election, which the New York Times published earlier this year. Type in your zip code and it will give you a breakdown of how your precinct voted in 2016.

The Alabama and California Examples

When you scroll back and view the country as a whole, what becomes immediately apparent is the divide within states. Alabama, for example, is often thought of as one of the most conservative states in the country, and indeed it is. Republicans hold 6 out of 7 congressional seats, the governor’s office, and a supermajority in the legislature. No Democratic presidential nominee has carried Alabama since 1976.

But when the 2016 election is analyzed on a precinct-by-precinct basis, one sees a blue swath of counties stretching from Sumter County in the west to Russell County in the east, a political affiliation reflecting the large concentration of African American voters in those counties. The same county-by-county split emerged in the 2018 Alabama gubernatorial election. 

Conversely, California is one of the bluest states in the country. Democrats hold 46 out of 53 congressional seats, the governor’s office, and a supermajority in the legislature. No Republican presidential nominee has carried the state since 1988.

Yet, Donald Trump carried 25 counties in California’s Central Valley and northern mountains, including 14 counties he won by more than 10 percentage points, a margin reflecting the large concentration of rural white voters in those counties. The same county-by-county split emerged in the 2018 California gubernatorial election.

The same phenomenon plays out in counties across the country. Polk County in Iowa, Travis County in Texas, and DeKalb County in Georgia are islands of blue in seas of red, whereas Stearns County in Minnesota and Oneida County in New York are conservative bastions in strongly blue states.  

Dangerously Isolated Counties

In the years ahead the growing ideological divide within states may ultimately prove more consequential than the divide among states. Overall both red and blue state voters find ways to have their voices heard at the national level. The reason is because of the highly competitive nature of congressional and presidential politics. In the past two decades partisan control of the presidency, the Senate, and the House has repeatedly shifted, resulting in alternating periods of liberal and conservative policy-making in Washington.  

The same, however, is not true in many states. For example, residents of a red county in California or a blue county in Alabama exercise almost no influence over state level policy. Voters in such counties have little reason to expect change anytime in the foreseeable future. Adding to the frustration at the county level is the fact that state government has a much more direct impact on the lives of voters than does the federal government in a whole host of areas. Consequently, voters in a red county in a blue state, or a blue county in a red state, feel far more disconnected from power. If the country continues to polarize, we cannot discount the possibility that the political marginalization of outlier counties could eventually lead to unpredictable and destabilizing secessionist movements within states. 

The idea that disaffected counties might one day seek to create breakaway states would have seemed far-fetched to me a decade ago. But not anymore. The constitutional significance of West Virginia statehood—and the legal arguments in the Kesavan-Paulsen article—seem likely to become ever more prominent and pressing in the years ahead. If we cannot find a way to arrest hyperpolarization, the West Virginia precedent suggests the 50-state map we see today could look quite different later in this century.   

Comments

[anon]

Until the "progressives" accept that approx. 50% of their fellow citizens are not evil, the fear expressed above will be justified. It never ceases to amaze me that "progressives" spread the most hateful rhetoric imaginable, and then complain about polarization.

Don't believe it? I suspect many "progressives" read the Atlantic. I wonder if they read the recent piece about how hate toward others is ruining this country. The percentage of Democrats who actually hate Republicans, and characterize them as ignorant, stupid bigots, is much higher than the reverse. In fact, while Democrats think Republicans are evil, perhaps not surprisingly, Republicans believe Democrats are dishonest.

Above is a perfect example of the memory hole phenomenon that has overtaken the left. They not only seem to ignore the reality of history, including recent history, but distort the facts to fit current prejudices and preferences, just as Orwell predicted with respect to "IngSoc" (English socialism).

"The truly amazing thing is how little legal breakage there was in the American Civil War, how much constitutional propriety remained in the forefront, and how much that constitutional propriety was measured in formal, literal terms. We got through the Civil War precisely because Lincoln anchored his theory of the war in the Constitution."

Really? Has anyone ever read the actual history of Lincoln's actions during the war? A great orator, writer, and thinker? Yes. A bigot who never accepted equality for the freed slaves? A cynic with respect to the great Proclamation, that didn't say what most people think it said? Yes.

A president who adhered to the "formal literal constitutional proprieties"? Oh, please.

The left wants to claim Lincoln. Fine. Don't white wash his many quite brazen constitutional violations. And, if war is an excuse, then let's disband the SCOTUS during times of war. That isn't the law and there were alternatives.

[The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated]

Oh Lordy. No more Country Roads.

[twbb]

anon, that is just absurdly stupid.

[anonq]

twbb

You are playing to type. As stated: "The percentage of Democrats who actually hate Republicans, and characterize them as ignorant, stupid bigots, is much higher than the reverse."

I'm not a republican. I suspect both parties of malfeasance and often outright dishonesty and surely hypocrisy. I concede that I am often offended by the moralistic, holier than thou tone taken by left-leaning pontificators, who look down their noses at others while, in my view, doing some very shady things themselves. I believe that BOTH parties must be subject to scrutiny, not just "the others" who are demonized.

But, on this website, there are many who believe that only one party and only those who support it should be demonized constantly, and that all faults of their own "team" should be ignored or excused.

To the point: your comment, twbb. I'd bet you would ridicule someone who goes around calling people "stupid" (unless, of course, the target is one you believe, rightly or wrongly, to be "the other").

The author above complains about "hyper polarization" and warns of its ill-effects. But, he doesn't seem to realize that his nearly uniformly partisan selection of topics, "support" and conclusions adheres, again nearly uniformly, to the political agenda of the Democratic Party.

That he writes about the problem of hyper partisanship while epitomizing its effects is to me beyond ironic.

But, perhaps, that is because I am so stupid I can't see the big picture here. Yes, you are correct! You are brilliant and I am stupid.

Happy?

[anon]

BTW, the article above was one of the more neutral posts by this author.

Yet, he couldn't help but suggest that race is determinative of party affiliation, in both California and Alabama. I suppose college towns are Republican now, along with all those "rural white" people (who cling to ... well, you know what those stupid people cling to).

This is the view of the modern left, that has used and is using racial hostility and tropes (especially now fanning the flames) in an attempt to gain votes.

[twbb]

When you throw up your hands and say "but both sides!" you're not exhibiting world-weary understanding, you're admitting you just can't critically analyze what's happening. It's the kind of inane nothing that obnoxious college freshmen pronounce arrogantly in late night dorm chat to make it sound like they're not naive 18-year-olds.

[anon]

twbb

You speak to "critical analysis."

This is your critical analysis:

"absurdly stupid" "[you] just can't" "inane nothing ... obnoxious college freshmen" "arrogant ... late night dorm chat" "naive 18-year-old" ...

I see your "point." Very astute analysis.