Today’s post comes from National Archives Office of Strategy and Communications staff writer Rob Crotty.
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.
**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!
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?
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.
Legally they didn’t secede. They were rebels, traitors.
Correct!
Did Virginia secede? is the big unansered question. If Virgina did secede then West Virginia could be considered the spoils of war and annexed and be admitted as a new state. If Virginia never seceded then the West Virginia govenment could have just assumed the postion Virginia had, senators and representatives, and would not need to become a new state. History points to Virginia acutually seceded or the process is flawed. The Supreme Court only later addressed the question in Texas v White ruling the Confederate States never seceded.
Not a new country, a new union. What people miss is that the states ARE countries joined into a political union, not unlike the EU.
What the rogue countries of Virginia did is like if you left a club that you helped found, but your arm still wanted to be in the club.
I’m not sure you’re correct, but the term “Congress” is another piece of evidence to support your view. That term refers to assemblies of SOVEREIGN COUNTRIES (or STATES)–think of the Congress of Vienna (1814-15) or the Congress of Berlin (1878), which were INTERNATIONAL assemblies. So, it does seem as if maybe the Founders did indeed think of the States as sovereign countries.
That’s as asinine as saying that the UK are traitors for leaving the EU.
The states created the federal government. They delegated specific powers to it, prohibited themselves from specific acts, and explicitly stated in the Constitution that they or the people retain all other powers. That includes the power to dissolve their membership in the union.
Old Virginia brought suit in 1870 (West Virginia vs Virginia) , after the Civil war when it was partially restored to the union. At issue in the suit, Virginia argued for the return of Berkeley and Jefferson counties that had been added to WV as an afterthought (not being included in 1863 when WV was declared a state). Of course VA lost the case.
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.
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.
Maine was not part of Mass. the state, it was a territory of same. WV was part and parcel part of Virginia. Period. Full stop.
Not that it mattered because Lincoln proved the constitution didn’t mean jack if the government wished it too.
exactly-ask the Maryland Legislature or Sen Vandinglandingham of Ohio-about Lincolns use of law-he side stepped it repeatedly—kinda like today 🙂
Kentucky was also born from Virginia. Kentucky was originally Kentucky County, Virginia. It became our 15th state on June 1, 1792.
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.
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.
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.
Actually Vermont began life as land granted by the royal governor of New Hampshire, Benning Wentworth, who believed it part of the territory granted to New Hampshire. New York, which had designs on an eastward expansion, convinced King George to grant all territory east to the Connecticut River to New York. They accurately pointed out that their system of “orderly large manors farmed by indentured tenant farmers” mirrored England’s system, whereas Wentworth was granting land of “dubious title” to “scruffy, fractious, and indigent scum” who were “ill equipped to properly develop and care for it”. A no-brainer for King George, and the seeds were planted that sprouted into the “Green Mountain Boys”, the Al Qaeda and the Sturmabteilung of their day, and cost Goerge his forts at Ticonderoga and Crown Point.
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.
Spot on!
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!!
As to States that began as something else-I was born in Texas-which for the years between 1836 and 1845- was a Republic and was not actually a part of the US until 1845 when the State of Texas was admitted to the Union. One branch of my family was in Texas before 1836, actually coming from Massachusetts originally and settling in Missouri before that branch of my family set off for Texas.
The State of Texas also seceded from the Union when the Civil war began.
By the 10th amendment they had every right to secede, just as new England states threatened to do over the war of 1812. The CSA sued over west Virginia strictly to point out the govt’s hypocrisy. Saying Virginia can’t secede but western counties can, and as a new slave state, after the emancipation proclamation. It’s easy to see, Lincoln was just doing what he wanted as he did all throughout the war.
As far as being a traitor, I guess George Washington was a traitor to huh. We wanted independence. Not control of someone else. The north fought for control over the southern states. An before u bring up slavery remember that there were 6 slave states in the union an 10 Republicans were slave owners. Benjamin Burton being the largest in Delaware and a friend of ole honest Abe. The hypocrisy is glaring. Constitutionally the south was right. The north didn’t care about slavery until years into the war. He only freed slaves in southern controlled territory while vast amounts of ppl remained enslaved in union held territory. I can go on an on.
There’s several reasons why WV isn’t a state and you could read AG Bates view on the matter, one succinct good one comes from John Carlile himself, father of the pro-Union separate statehood movement:
• “Carlile declared that none of the Wheeling conventions had been representative of the people of the new state and that a majority of the voters had never expressed their opinion on the question by electing delegates to the conventions or in referenda on convention decisions.” ref. “West Virginia, A History” by Rice and Brown, p. 147, the 2nd ed hardcopy version
What Carlile is admitting is obvious when you view the 1860 presidential election results for Virginia (incl the western counties) and then the 1870 Confederate take over of the state of WV for 25 yrs thereafter.
I suspect the reason the 1870 Confederate majority didn’t redeem the western counties to Virginia, and essentially played along, was because it gave Confederate Virginia 4 US Senators…. something that’s valuable when you’re confined to a Federal prison.
Nevertheless, Carlile is telling us that WV at its genesis lacked a republican form of government. Nevermind Lincoln’s cute remarks on qualified voters choosing or not to vote.
Art. IV, Sec. 3 reads: “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.”
It’s not 100% clear that the “without consent” part applies to both parts or only the second part (beginning with “nor”), since a semicolon separates them. So, “no new State shall be formed or erected within the Jurisdiction of any other State” can be read as a total ban, consent or not.