A conversation with my dad about John Ashcroft’s fair-weather federalism – in which my dad observed that Republicans’ lack of support for states’ rights goes all the way back to the first Republican president, Lincoln – reminded me of a bizarre legal anomaly that I noticed a few years ago: that West Virginia should not be a state. Or at least, it can only be a state if you buy the South’s position on the legality of secession.
Why? Because the acceptance of West Virginia as a state relied on two distinct acts of secession. First, Virginia had to secede from the Union; and second, West Virginia had to secede from Virginia. Now, Lincoln and the Republicans took the position that the secession of southern states was illegal and unconstitutional and hence *never happened*; for the entirety of the Civil War, they were not a separate nation or nations, but union states in rebellion. If that’s so, then Article IV section 3 of the Constitution still applied to Virginia:
New States may be admitted by the Congress into this Union; but no new State 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.In other words, as long as Virginia was part of the Union, as the opponents of secession claimed it was, then West Virginia could not have become a state without the consent of the Virginia state legislature – consent that I’m pretty sure was never given.
(It’s not obvious to me whether the final phrase about consent of the legislatures concerned applies to the clause before the semicolon about forming a state within the jurisdiction of an existing state, or if that phrase only applies to states formed by the junction of states or parts of states. But it doesn’t matter, because either way West Virginia’s statehood would have been unconstitutional – either because it was ruled out entirely, or because the Virginia legislature’s consent was never given.)
There is, of course, a legal theory that would justify West Virginia’s statehood: the theory that secession of a state is legal and constitutional. If Virginia actually left the Union, then the constitutional provision above did not apply. The acceptability of secession was, of course, the position of the southern states. But this theory was rejected by precisely the people who voted to admit West Virginia to the Union.
UPDATE: Turns out that Lincoln consulted the members of his Cabinet on this question, and received differing opinions. Salmon P. Chase offers an interesting argument in defense of admitting West Virginia as a new state: that while some Virginian state legislators were in rebellion, other Virginia state legislators and loyal citizens established a convention in Wheeling (a town in what is now West Virginia), and that body constituted the only legitimate legislature of Virginia. Thus, the Constitution required only this legislature’s consent. A clever argument, but I don’t think it quite works. Article IV section 3 requires consent of the legislatures, plural, of the states, also plural, concerned. Now, the Wheeling convention was either the legislature of Virginia or the legislature of West Virginia, but it cannot have been the legislature of both! Therefore, at least one required consent was missing. Now, I suppose one might claim that this position would have denied the people of West Virginia their right of self-determination, i.e., their right to govern themselves without the consent of people living in the Virginian counties in rebellion. But notice that self-determination is the basis of the secessionist argument, so again, the Unionists could not support that argument without contradicting themselves. Also, it’s worth pointing out that the Constitution has specific language prohibiting this form of secession (one part of a state unilaterally separating itself from the rest to become a new state), whereas it does not contain any language prohibiting secession of a state from the union as a whole. So it’s odd, to say the least, to contend that the Constitution allows the former yet prohibits the latter.