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"But there is a federal question. By Article IV the United States must guarantee each state a republican form of government." We've already agreed that Va., before and after secession, was a state with a 'republican form of gov't.'
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Not so fast. Virginia after secession didn't have ANY GOVERNMENT AT ALL that was qualified to hold office under the US Constitution. It had a group of pretenders in Richmond who were unqualified under the US Constitution to be a state government.
So there is a federal law, but no federal question. In other words, there's no "case or controversy" on the question of whether Va. had a republican form of gov't.
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Wrong. If Virginia had no government at all that was qualified, under the US Constitution, to hold office, then it cannot have a republican form of government under the US Constitution. Note that its legislature was republican in form, but by the US Constitution it didn't exist as a legitimate government since every member thereof was unqualified to hold office according to the Constitution.
Let's make an analogy. Let's say that a state elects a legislature consisting entirely of 6-year-old children when its constitution specifies only adults can hold office. That legislature is republican in form because those representatives were elected to office and they represent their constituents and cast votes for or against laws for their constituents. However, it's unconstitutional for them to hold office, and thus we can't really say that the legislature exists under the state's constitution.
I've read Art. IV, and I still disagree with the S.Ct.'s assuming jurisdiction in the absense of a federal question. And I'm not completely mistaken - so there. :-)
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The Supreme Court says you're completely mistaken, and I'll take their word for it.
"Please show me where they've changed their minds on this." The question of splitting 1 state into 2 has not, to my knowledge, ever been presented to the courts. Thus, there's nothing yet to change.
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As was clear from the context, I was referring to the Court's holding in Luther v. Borden, so there is a great deal to change. You mischaracterized my request completely.
"Which electorate do you think chose it?" That of western Va. which is far less than half of the electorate of Va.
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Do you contend that any officeholder who is chosen by an electorate that consists of far less than half the eligible voters holds his position illegitimately? If so, the United States has no government today because it is rare indeed when we get more than 50% of eligible voters to turn out, especially in off-year elections. In elections we ignore those who for whatever reason decide not to vote. They have chosen to live with whatever results are decided by those who do vote.
Likewise, with Virginia, those who for whatever reason did not participate in the elections to choose the delegates live with the result decided by those who did choose to participate.
"Virginia after secession didn't have ANY GOVERNMENT AT ALL that was qualified to hold office under the US Constitution." No matter. Va. wasn't looking to be qualified under the US Constitution. But I'll hold that thought, because this thread requires Va. to be a state. As we've agreed, if Va. is not a state then W.Va. is conquered territory eligible for statehood. So if Va. is a state, it has a legislature duly elected by all of Va. You don't have to qualify under the US Constitution to be a legislator in Va. Who and how state legislators are elected are questions of state law under the 10th Amend. Any gov't can be a republican form of gov't so long as it has representatives chosen by the people. No form of "qualification" is required under the US Constitution for state legislators. Your 6 yr. old analogy is a bit to the extreme, but I'm not sure it has any meaning either. But let me ask, are you contending that the Va. legislature was somehow unqualified under the Va. constitution? And another thing. Those 6 yr. olds are qualified until their election is challenged by a candidate qualified under the state constitution. I don't see anything to indicate that the election of an unqualified candidate is void, but rather voidable if properly challenged. In other words, constitutional candidate qualifications are not self-executing. Perhaps in your 6 yr. old example the rule is sufficiently clear to be self-executing IF an age certain is required by the state's constitution. But if the state constitution simply says something like "of suitable age," then some challenge to their suitability is required. For now though, suffice it to say that states are not required to look to the US Constitution for candidate qualifications for state legislators.
"The Supreme Court says you're completely mistaken, and I'll take their word for it." You may do so. But I encourage you to think outside of a given judicial opinion. Ideas are how bad law is made good. Of course, given the self-interest of a party, it can go the other way too. Overall, I'm satisfied that good ideas will ultimately prevail.
I don't think that I mischaracterized your question. I re-directed it to make a point. No, so far as I know, Luther has yet to be reversed. But my point is that it's not directly on point. It may qualify as authority, as opposed to what I call the 'pretty language' you sometimes cite. But because it is a decision without jurisdictional foundation, presenting a different factual question than the split of 1 state into 2, I can't go so far as to call it precedent on the question of W.Va. I'll admit that if I were arguing for W.Va., I'd cite Luther too. But I always try to keep track of the weaknesses in the case law that I cite.
"Do you contend that any officeholder who is chosen by an electorate that consists of far less than half the eligible voters holds his position illegitimately?" Of course not. But your question presumes that all of the eligible electorate have the choice to vote. In the case of W.Va. v. Va., the Va. electorate was not free to choose. And your question begs the question of there already being a duly elected Va. legislature from an election in which all voters in Va., eastern and western, were free to choose to vote or not. If Va. is still a state, and its state constitution does not provide for a "restored gov't," the any action of the "restored gov't" is a nullity. It gets back to that voluntary consent thing.
"Virginia after secession didn't have ANY GOVERNMENT AT ALL that was qualified to hold office under the US Constitution." No matter. Va. wasn't looking to be qualified under the US Constitution. But I'll hold that thought, because this thread requires Va. to be a state.
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And thus, it's a huge matter and pivotal.
As we've agreed, if Va. is not a state then W.Va. is conquered territory eligible for statehood. So if Va. is a state, it has a legislature duly elected by all of Va. You don't have to qualify under the US Constitution to be a legislator in Va.
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Yes, you do. See Article VI, Clause 3. Any state legislature supporting secession was in violation of the Constitution and unfit to hold office.
Who and how state legislators are elected are questions of state law under the 10th Amend. Any gov't can be a republican form of gov't so long as it has representatives chosen by the people. No form of "qualification" is required under the US Constitution for state legislators. Your 6 yr. old analogy is a bit to the extreme, but I'm not sure it has any meaning either. But let me ask, are you contending that the Va. legislature was somehow unqualified under the Va. constitution?
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They may very well have been. I'll let you know later when I have a chance to review it.
I don't think that I mischaracterized your question. I re-directed it to make a point.
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No, you mischaracterized it.
No, so far as I know, Luther has yet to be reversed. But my point is that it's not directly on point. It may qualify as authority, as opposed to what I call the 'pretty language' you sometimes cite. But because it is a decision without jurisdictional foundation, presenting a different factual question than the split of 1 state into 2, I can't go so far as to call it precedent on the question of W.Va. I'll admit that if I were arguing for W.Va., I'd cite Luther too. But I always try to keep track of the weaknesses in the case law that I cite.
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And you're still mistaken about the jurisdictional foundation.
"Do you contend that any officeholder who is chosen by an electorate that consists of far less than half the eligible voters holds his position illegitimately?" Of course not. But your question presumes that all of the eligible electorate have the choice to vote. In the case of W.Va. v. Va., the Va. electorate was not free to choose.
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There were no restrictions on travel to the polling places.
And your question begs the question of there already being a duly elected Va. legislature from an election in which all voters in Va., eastern and western, were free to choose to vote or not.
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According to the US Constitution, there was no longer a Virginia legislature that was qualified to hold office.
"And thus, it's a huge matter and pivotal." Agreed. I never said it wasn't.
"See Article VI, Clause 3." Again, let's assume that Va. is still a state. It exercised its constitutional right to secede. It's only your unsupportable contention that this is contrary to the Constitution. I, and the Constitution, disagree with you.
"And you're still mistaken about the jurisdictional foundation." No, I'm not. Just because a court assumes jurisdiction over a particular case does not mean that it was proper to do so. As there's no question that Va. had a republican form of gov't, Luther had no federal question to decide and, thus, no jurisdictional foundation.
"There were no restrictions on travel to the polling places." Puhleeze.
"According to the US Constitution, there was no longer a Virginia legislature that was qualified to hold office." The Constitution does not say that; only you do.
"And thus, it's a huge matter and pivotal." Agreed. I never said it wasn't.
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Actually, you said it was "No matter."
"See Article VI, Clause 3." Again, let's assume that Va. is still a state. It exercised its constitutional right to secede. It's only your unsupportable contention that this is contrary to the Constitution. I, and the Constitution, disagree with you.
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Only you and your flawed interpretation of the Constitution disagree with me. The actual Constitution, as well as the US Supreme Court and every pronouncement of the government on that subject since the Constitution was ratified all agree with me. Additionally, you seem to have problems remembering key details. Once again, if as you say secession was constitutional, then it doesn't matter since West Virginia can be added constitutionally as conquered territory. We only get into a discussion of the applicability of Article IV if secession is considered unconstitutional.
So if secession is unconstitutional, then by Article VI, Clause 3 the Richmond government was disqualified from holding office.
"And you're still mistaken about the jurisdictional foundation." No, I'm not. --------------
Yes, you are. Since you admitted you couldn't make your way through the opinion, perhaps you should try again.
"According to the US Constitution, there was no longer a Virginia legislature that was qualified to hold office." The Constitution does not say that; only you do.
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Article VI, Clause 3. Why don't you read it?
"Actually, you said it was "No matter." Actually, I said to the effect it didn't matter because Va. was no longer bound by the Constitution once it seceeded, and didn't want to be. I agree that, for the purposes of this thread, it does matter.
"Only you and your flawed interpretation of the Constitution disagree with me." The text of the Constitution agrees with me, and not you. I'll stand by what the Constitution says.
"We only get into a discussion of the applicability of Article IV if secession is considered unconstitutional." Not so fast. :-) Regardless of the constitutionality of secession, the fed didn't recognize it. So if the fed sees Va. as a state, it is bound to treat it as such. If Va. is a state, but the fed recognizes that it doesn't want to be, that does not make discussion of secession or the vote for it unconstitutional but rather Va.'s legislator's exercise of their right to free speech. Or do you believe it is unconstitutional to criticize the fed?
"So if secession is unconstitutional, then by Article VI, Clause 3 the Richmond government was disqualified from holding office." And if it isn't, Va's legislature remained qualified. If Va's legislature remained qualified, then there is no legitimate 'restored gov't.'
"Since you admitted you couldn't make your way through the opinion, perhaps you should try again." I made it far enough to know that there's no federal question jurisdiction in Luther. I've heard your basis for contending there is, and since there's no question that Va. had a republican form of gov't before and after secession, there's no federal question for this matter either. The qualifications of state legislators are for the states to decide.
"Article VI, Clause 3. Why don't you read it?" I did.
"Only you and your flawed interpretation of the Constitution disagree with me." The text of the Constitution agrees with me, and not you. I'll stand by what the Constitution says.
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No, that's your flawed interpretation of the Constitution. If you were to stand by what the Constitution actually says you would realize unilateral secession is unconstitutional.
"We only get into a discussion of the applicability of Article IV if secession is considered unconstitutional." Not so fast. :-) Regardless of the constitutionality of secession, the fed didn't recognize it. So if the fed sees Va. as a state, it is bound to treat it as such.
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That's why we're discussing it this way. We assume the Federal Government in 1861 was correct that unilateral secession was an unconstitutional act. If it is unconstitutional, then the entire Richmond government who supported secession was unqualified by the US Constitution to hold office, since they were in violation of Article VI, Clause 3.
If Va. is a state, but the fed recognizes that it doesn't want to be, that does not make discussion of secession or the vote for it unconstitutional but rather Va.'s legislator's exercise of their right to free speech. Or do you believe it is unconstitutional to criticize the fed?
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You're not making sense here. Whether they were recognized as not wanting to be a state or not, for the purposes of this discussion at least, they were still a state because unilateral secession is unconstitutional. So recognizing or not recognizing what they wanted to be is irrelevant.
"So if secession is unconstitutional, then by Article VI, Clause 3 the Richmond government was disqualified from holding office." And if it isn't, Va's legislature remained qualified. If Va's legislature remained qualified, then there is no legitimate 'restored gov't.'
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If it isn't, then West Virginia is constitutionally admitted as conquered territory and it doesn't matter if the restored government is legitimate or not because their consent wasn't required, and it doesn't matter if the form of Article IV was followed or not because as conquered territory it was constitutionally legitimate to admit West Virginia as a state.
"Since you admitted you couldn't make your way through the opinion, perhaps you should try again." I made it far enough to know that there's no federal question jurisdiction in Luther.
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The question was whether or not the Federal Government had the power to determine which of two competing governments was the legitimate government of a state. It does. If you disagree, you're wrong again.
I've heard your basis for contending there is, and since there's no question that Va. had a republican form of gov't before and after secession, there's no federal question for this matter either. The qualifications of state legislators are for the states to decide.
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Except that there is an additional qualification in the US Constitution, which is supreme law of the land.
"Article VI, Clause 3. Why don't you read it?" I did.
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Then do you understand why they were unqualified to hold office under the US Constitution?
"unilateral secession is unconstitutional." You say that, but the Constitution doesn't. I'll stick with the text of the Constitution.
"You're not making sense here." Let me rephrase. Nowhere in the Constitution does it give the fed the choice of recognizing a state gov't other than the one duly elected by its citizenry. If the fed does not recognize state secession, it does not recognize the vote for state secession, and there's no qualifiication issue. The legislature's discussion of secession, an exercise of 1st Amend. rights, does not disqualify it or its members. Or, as I've said before, the fed is not empowered to recognize Va. as a state and not recognize its duly elected legislature. The fed can't have it both ways.
"If you disagree, you're wrong again." I wasn't wrong in the first place, let alone again. :-)
"Except that there is an additional qualification in the US Constitution, which is supreme law of the land." I'm confused; are you talking about Luther or the Constitution? But as I've addressed each, I'll let it go.
"Then do you understand why they were unqualified to hold office under the US Constitution?" I understand that if Va. was a state, it had but one legislature elected by the whole state.
I'll stick with the text of the Constitution.
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So far you haven't been close to the text of the Constitution.
"You're not making sense here." Let me rephrase. Nowhere in the Constitution does it give the fed the choice of recognizing a state gov't other than the one duly elected by its citizenry.
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But it does. Article IV, Section 4. In order to guarantee the state a republican form of government the United States must have some means of certifying that the body representing itself as the state government is the legitimate government of the state.
If the fed does not recognize state secession, it does not recognize the vote for state secession, and there's no qualifiication issue.
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Wrong again. As it recognizes no vote for state secession, the legislature in Richmond, in claiming the Constitution no longer applied to them and in joining the confederacy, was in rebellion and was not in support of the Constitution of the United States. Therefore, they did not meet the qualification laid out in Article VI, Clause 3, to wit: "the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution."
The legislature's discussion of secession, an exercise of 1st Amend. rights, does not disqualify it or its members.
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They can discuss it all they want. But when they claim the Constitution no longer applies to them and when they join an armed rebellion against the United States that is beyond an exercise of free speech and they are no longer qualified to hold office under the US Constitution.
"Except that there is an additional qualification in the US Constitution, which is supreme law of the land." I'm confused; are you talking about Luther or the Constitution?
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The US Constitution, which is why I said the US Constitution.
"Then do you understand why they were unqualified to hold office under the US Constitution?" I understand that if Va. was a state, it had but one legislature elected by the whole state.
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Unresponsive.
"In order to guarantee the state a republican form of government the United States must have some means of certifying that the body representing itself as the state government is the legitimate government of the state." But, again, for purposes of this thread, we've agreed that Va. had a republican form of gov't; i.e., its legislature was chosen by its citizenry. I'm assuming you're trying to extend this 'republican form of gov't' argument to another point. If you think I've missed it, please state it again or cut and paste a prior post. We seem to be going in circles.
"As it recognizes no vote for state secession, the legislature in Richmond, in claiming..." If there's no vote for secession, whatever the Va. legislature was 'claiming' was protected free speech, not grounds for disqualification from office. As for joining the Confederacy, that decision too was a nullity if Va. was a state. That should have been voided by due process in the courts. If Va. is a state, then only the people shooting at the feds could be in rebellion, and that does not likely include state legislators. As I understand it, you could be in the army or in gov't, but not both. For example, Va. Gov. William "Extra Billy" Smith left the army to become Governor.
"Unresponsive." I responded with my understanding. But if you prefer, a simple no will suffice.
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