The creation of West Virginia

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Opinions notwithstanding, the steps necessary to create a new state are spelled out in the Constitution.

They are clear and measurable.
They sure are.

1) "New States may be admitted by the Congress into this Union"

This was done. Anyone questioned that Congress admitted West Virginia?

2) "but 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."

Also done. The body that was recognized by the US as the legislature of Virginia gave its consent.

Clear, measurable and complied with.
 

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jgoodguy

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They sure are.

1) "New States may be admitted by the Congress into this Union"

This was done. Anyone questioned that Congress admitted West Virginia?

2) "but 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."

Also done. The body that was recognized by the US as the legislature of Virginia gave its consent.

Clear, measurable and complied with.
IMHO it is not so much the rules as who gets to interpret them. In winning the Civil War, the Union got to interpret them, not the CSA, not the Confederate advocates, not Joe Blow blogger, but the Union.
 
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In a time when armed rebels are invading Maryland and Pennsylvania, i.e. June of 1863, and the army is actively involved in fighting the rebels, Congress can make new states from the areas the US army controls in the occupied areas. The means are related to the ends, which were protecting the Constitution.
In the first half of 1863 there was unmistakeable evidence that a Civil War was going on. There was still strong evidence that the US might have to agree to an armistice with the rebels, at that time.
 
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Furthermore, to refuse West Virginia citizens the right to break off and form a new state would be to deny them their "constitutional rights"

The framers of the constitution clearly intended for citizens to have the ability to form new states from sections of existing states. It's a black-and-white constitutional right.

So to argue that the government in Richmond, which had repudiated any fealty to the US Constitution, had in fact MORE constitutional rights than loyal citizens of West Virginia who made every effort to follow the process described in said constitution is specious at best.

West Viginia had a constitutionally guaranteed right to separate from Virginia. It is a fact.

And if the process they employed is not up to some people's legal standards, then perhaps someone would explain what alternate process was available to them as a means of exercising that right.
While I agree, the Framers were also very clear that this couldn’t and shouldn’t be a free for all... the state to be partitioned and the congress had to give their consent. The beef is that the majority of Virginians weren’t included in the decision. The fact is that the majority of Virginians disavowed the constitution and the United States government, thus they were rightly excluded and loyal citizens made the decision. All the clamoring of our CSA supporting friends is moot. They’d like constitutional protections at the same time they applaud those who would destroy the constitution.
 

USS ALASKA

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Question sirs and no snark intended...sort of edging into 'what if' territory...if the United States HAD recognized the Confederacy as a 'nation' she was at war with, wouldn't WV applying for and gaining admission into those United States be the same as allowing Texas to join the United States? And in some ways, the Union did recognize the the South as a lawful belligerent...
3083

Once again, not trying to get the flamethrowers out,
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jgoodguy

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Question sirs and no snark intended...sort of edging into 'what if' territory...if the United States HAD recognized the Confederacy as a 'nation' she was at war with, wouldn't WV applying for and gaining admission into those United States be the same as allowing Texas to join the United States? And in some ways, the Union did recognize the the South as a lawful belligerent...
3083

Once again, not trying to get the flamethrowers out,
USS ALASKA
Texas was an exception of the general rule of State Admission. Thus we would still be arguing about West VA, but with a different set of facts.
Link
The formal controversy over the legality of the annexation of Texas stems from the fact that Congress approved the annexation of Texas as a state, rather than a territory, with simple majorities in each house, instead of annexing the land by Senate treaty, as was done with Native American lands. Tyler's extralegal joint resolution maneuver in 1844 exceeded strict constructionist precepts, but was passed by Congress in 1845 as part of a compromise bill. The success of the joint house Texas annexation set a precedent that would be applied to Hawaii's annexation in 1897.[194]
 
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Question sirs and no snark intended...sort of edging into 'what if' territory...if the United States HAD recognized the Confederacy as a 'nation' she was at war with, wouldn't WV applying for and gaining admission into those United States be the same as allowing Texas to join the United States? And in some ways, the Union did recognize the the South as a lawful belligerent...
3083

Once again, not trying to get the flamethrowers out,
USS ALASKA
I would think so, but in that case, they would have applied under the first clause of the article and would have needed no approval from Virginia.
 

USS ALASKA

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...Tyler's extralegal joint resolution maneuver in 1844 exceeded strict constructionist precepts...
...as did the Louisiana Purchase...

...but was passed by Congress in 1845 as part of a compromise bill.
So the precedent had been set. And there wouldn't be the need for a compromise this time.

Cheers,
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USS ALASKA

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I would think so, but in that case, they would have applied under the first clause of the article and would have needed no approval from Virginia.
Indeed sir, so if you are treating the Confederacy as a nation under the constitutive theory of state creation based upon 'recognition of existence' (which she was), then the whole 'Restored Government of Virginia' was a political nicety but not really necessary.

Cheers,
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jgoodguy

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Indeed sir, so if you are treating the Confederacy as a nation under the constitutive theory of state creation based upon 'recognition of existence' (which she was), then the whole 'Restored Government of Virginia' was a political nicety but not really necessary.

Cheers,
USS ALASKA
In short, were the CSA a separate recognized nation, then conquered territory could simply be annexed.
 

cash

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Question sirs and no snark intended...sort of edging into 'what if' territory...if the United States HAD recognized the Confederacy as a 'nation' she was at war with, wouldn't WV applying for and gaining admission into those United States be the same as allowing Texas to join the United States? And in some ways, the Union did recognize the the South as a lawful belligerent...
3083

Once again, not trying to get the flamethrowers out,
USS ALASKA
In my opinion, since the U.S. Army occupied West Virginia, it could be annexed as conquered territory and then added in accordance with the Constitution and no consent from the CSA portion would be needed.
 

jgoodguy

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In my opinion, since the U.S. Army occupied West Virginia, it could be annexed as conquered territory and then added in accordance with the Constitution and no consent from the CSA portion would be needed.
I agree and IMHO all the apparent complexity results from the desire of Lincoln to hold to his position that VA had not seceded.
 
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I agree and IMHO all the apparent complexity results from the desire of Lincoln to hold to his position that VA had not seceded.
If the US had ended up in a war with Great Britain, which was certainly possible, one can easily envision American troops crossing the border and occupying Ontario.

In that scenario, no one would have hesitated to annex Ontario and make it a state. Plenty of people had advocated that very position dating back to 1776. You could probably have even rustled up enough Canadians who were willing to go along with this to provide window dressing.

Public sentiment and military reality have at least as much to do with it as constitutional niceties.

In the case of West va it's even more clear cut since that area had been part of the US ever since the founding. Because of this, its hard to see taking it back after a very brief hiatus as part of the Confederacy as some kind of conquest.
 
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Election day May 28th 1863 -- Arthur Boreman is elected the first governor of West Virginia By 25,797 out of 25,797 votes
I still wonder about this? As I seem to be able to find little on this election, and my more knowledgeable fellow members may be able to help me? #1 are my numbers correct? #2 if elected who ran against him? #3 was he appointed who appointed him
 
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It is abundantly obvious that the admission of West Virginia was blatantly illegal, and that those who voted in its favor merely deluded themselves regarding the constitutionality of the matter. To his credit Thaddeus Stevens, who was among the most ardent unionists and perhaps the most radical Republican, refused to insult his intelligence and belittle his honesty by pretending that establishing West Virginia statehood was anything other than an exercise in raw power:

"We may admit West Virginia, not by any provisions of the Constitution but under the absolute power which the laws of war give us. I shall vote for the bill upon that theory and that alone; for I will not stultify myself by supposing that we have any warrant in the Constitution for this proceeding."

An excellent summary of the entire, sordid affair.
 

Pat Young

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I still wonder about this? As I seem to be able to find little on this election, and my more knowledgeable fellow members may be able to help me? #1 are my numbers correct? #2 if elected who ran against him? #3 was he appointed who appointed him
He ran unopposed as candidate of the Constitutional Union Party.
 

jgoodguy

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It is abundantly obvious that the admission of West Virginia was blatantly illegal, and that those who voted in its favor merely deluded themselves regarding the constitutionality of the matter. To his credit Thaddeus Stevens, who was among the most ardent unionists and perhaps the most radical Republican, refused to insult his intelligence and belittle his honesty by pretending that establishing West Virginia statehood was anything other than an exercise in raw power:

"We may admit West Virginia, not by any provisions of the Constitution but under the absolute power which the laws of war give us. I shall vote for the bill upon that theory and that alone; for I will not stultify myself by supposing that we have any warrant in the Constitution for this proceeding."

An excellent summary of the entire, sordid affair.
I was not aware that your opinion constituted law nor that Thaddeus Stevens was on the Supreme Court or a constitutional scholar.
 

cash

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I was not aware that your opinion constituted law nor that Thaddeus Stevens was on the Supreme Court or a constitutional scholar.
If we actually read what Thaddeus Stevens said, we can see that he said the admission of West Virginia was completely legal "under the absolute power which the laws of war give us."
 
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It is abundantly obvious that the admission of West Virginia was blatantly illegal, and that those who voted in its favor merely deluded themselves regarding the constitutionality of the matter. To his credit Thaddeus Stevens, who was among the most ardent unionists and perhaps the most radical Republican, refused to insult his intelligence and belittle his honesty by pretending that establishing West Virginia statehood was anything other than an exercise in raw power:

"We may admit West Virginia, not by any provisions of the Constitution but under the absolute power which the laws of war give us. I shall vote for the bill upon that theory and that alone; for I will not stultify myself by supposing that we have any warrant in the Constitution for this proceeding."

An excellent summary of the entire, sordid affair.
What, in particular, was unconstitutional about it?
 



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