The creation of West Virginia


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16thVA

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The Supreme Court has never ruled directly on the constitutionality of West Virginia statehood. The California Law Review's 103 page study ends this way-

"West Virginians may rest secure in the knowledge that their State is not unconstitutional. Probably."

Not exactly reassuring. If a pilot said the plane would "probably" make it, would you get on board?

No one seems concerned whether it was a good idea or not.
 
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Pittsburgh
The Supreme Court has never ruled directly on the constitutionality of West Virginia statehood. The California Law Review's 103 page study ends this way-

"West Virginians may rest secure in the knowledge that their State is not unconstitutional. Probably."

Not exactly reassuring. If a pilot said the plane would "probably" make it, would you get on board?

No one seems concerned whether it was a good idea or not.
A thorough reading of their study would show that their only real beef would be that the semi-colon after clause two in Article IV Section 3 may act as a period more than a comma and as such, it would be entirely unconstitutional for any state to be made within the jurisdiction of another state.

As written:

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.

As with interpreting said semi-colon as a period:

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.

Clearly, in the second case, WV is unconstitutional (as would be Kentucky, Tennessee, Maine, and possibly Vermont). If that semi-colon should be understood as a clear break, then the “without the consent of the Legislatures of the States concerned as well as of the Congress” does not modify “but no new State shall be formed or erected within the Jurisdiction of any other State” and thus there is a clear prohibition of any state being made inside the jurisdiction of another state. They spend much time exploring contemporary grammar along with other writings of the Framers. They then spend several pages arguing against this interpretation but allow that it may be the law based on changes by the committee of style, thus the caveat “probably”. They also state that, even if this was the case, WV was not in any sense “within the Jurisdiction” of Virginia when it applied for statehood. Virginia was in rebellion and most of WV was controlled by the Union. To support this, they offer the case of Vermont. Though NY claimed control of Vermont, no one would argue that NY actually exercised any control of Vermont and thus Vermont wasn’t in their “Jurisdiction”. They cite how none of the Acts creating Vermont reference NY or NY’s agreement to Vermont becoming a state. This is in sharp contrast to the situation of Kentucky, in which all Acts of statehood reference Virginia and Virginia’s approval of Kentucky’s statehood. They go on to state that the situation with Kentucky further supports the idea that the constitution does allow a state to be erected within another state. In sum, if WV is unconstitutional, then so is Kentucky, Tennessee, Maine,and arguably Vermont. They rightly reject this as absurd.

They do take care to express that the people of future WV, the congress, Lincoln, and the rest of the executive branch, all went out of their way to do this in a constitutional way in agreement with how they understood the constitution.

The California Law Review Article is the strongest argument in favor of the constitutionality of West Virginia that I’ve yet read.
 
Last edited:

cash

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The Supreme Court has never ruled directly on the constitutionality of West Virginia statehood. The California Law Review's 103 page study ends this way-

"West Virginians may rest secure in the knowledge that their State is not unconstitutional. Probably."

Not exactly reassuring. If a pilot said the plane would "probably" make it, would you get on board?
Sure I would, knowing no pilot telling you the truth would guarantee arrival. What is the probability? If it's .99, .98, .90, it's pretty reassuring to me that it's constitutional.


No one seems concerned whether it was a good idea or not.
Lincoln felt it was.
 

jgoodguy

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The Supreme Court has never ruled directly on the constitutionality of West Virginia statehood. The California Law Review's 103 page study ends this way-

"West Virginians may rest secure in the knowledge that their State is not unconstitutional. Probably."

Not exactly reassuring. If a pilot said the plane would "probably" make it, would you get on board?

No one seems concerned whether it was a good idea or not.
Probably is relative. 66% is iffy; 99.999% not so bad. Aint nothing 100% All airplanes are probably going to make it. Weather and other incidents will divert planes. 1 chance in 11 million a given airline passenger will die in an accident. That is better odds than me dropping dead before I finish this post.
 
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Blue Ridge Mountains, Jefferson County WV
Sure I would, knowing no pilot telling you the truth would guarantee arrival. What is the probability? If it's .99, .98, .90, it's pretty reassuring to me that it's constitutional.




Lincoln felt it was.
Legality's aside., and I know you know a lot more about this legal stuff than I. I just wonder if this was done with the blessing of the people of West Va? Was it not Lincoln who said For the people, by the people
 

cash

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Legality's aside., and I know you know a lot more about this legal stuff than I. I just wonder if this was done with the blessing of the people of West Va? Was it not Lincoln who said For the people, by the people
We'll never really know for sure, but it seems to have been done with the blessing of the majority of the people who voted in the election. At the time, of course, women didn't have the vote. Children didn't have the vote. Enslaved people didn't have the vote. Free blacks didn't have the vote. In every election, as you well know, a certain number of people are excluded from voting either because of age or residence requirements or some other issue. That's why we speak of "the electorate," "the body politic," or "registered voters." Only qualified voters are ever allowed to vote. Also, we don't normally worry about what people who choose for whatever reason not to go to the polls to vote think when we talk about the results of an election. So if someone for whatever reason decided they weren't going to travel to the voting place to vote, then does it invalidate the election? Normally we would say not.
 
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Legality's aside., and I know you know a lot more about this legal stuff than I. I just wonder if this was done with the blessing of the people of West Va? Was it not Lincoln who said For the people, by the people
That’s the rub. I think we can fairly state that for most of the NW counties of Virginia there was strong Union sentiment. There doesn’t seem to be a great outcry among the citizens to stop the formation of this new state, certainly not enough to make the leaders change course. We know there was already much consternation between the people of NW Virginia and the rest of the state even before the war. Can we be sure? No. Can we make an educated guess that the majority of the citizens in what became WV supported the endeavor? I would say yes.
 

jgoodguy

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A thorough reading of their study would show that their only real beef would be that the semi-colon after clause two in Article IV Section 3 may act as a period more than a comma and as such, it would be entirely unconstitutional for any state to be made within the jurisdiction of another state.

As written:

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.

As with interpreting said semi-colon as a period:

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.

Clearly, in the second case, WV is unconstitutional (as would be Kentucky, Tennessee, Maine, and possibly Vermont). If that semi-colon should be understood as a clear break, then the “without the consent of the Legislatures of the States concerned as well as of the Congress” does not modify “but no new State shall be formed or erected within the Jurisdiction of any other State” and thus there is a clear prohibition of any state being made inside the jurisdiction of another state. They spend much time exploring contemporary grammar along with other writings of the Framers. They then spend several pages arguing against this interpretation but allow that it may be the law based on changes by the committee of style, thus the caveat “probably”. They also state that, even if this was the case, WV was not in any sense “within the Jurisdiction” of Virginia when it applied for statehood. Virginia was in rebellion and most of WV was controlled by the Union. To support this, they offer the case of Vermont. Though NY claimed control of Vermont, no one would argue that NY actually exercised any control of Vermont and thus Vermont wasn’t in their “Jurisdiction”. They cite how none of the Acts creating Vermont reference NY or NY’s agreement to Vermont becoming a state. This is in sharp contrast to the situation of Kentucky, in which all Acts of statehood reference Virginia and Virginia’s approval of Kentucky’s statehood. They go on to state that the situation with Kentucky further supports the idea that the constitution does allow a state to be erected within another state. In sum, if WV is unconstitutional, then so is Kentucky, Tennessee, Maine,and arguably Vermont. They rightly reject this as absurd.

They do take care to express that the people of future WV, the congress, Lincoln, and the rest of the executive branch, all went out of their way to do this in a constitutional way in agreement with how they understood the constitution.

The California Law Review Article is the strongest argument in favor of the constitutionality of West Virginia that I’ve yet read.
Good analysis.
 
Joined
Oct 11, 2016
Messages
277
A thorough reading of their study would show that their only real beef would be that the semi-colon after clause two in Article IV Section 3 may act as a period more than a comma and as such, it would be entirely unconstitutional for any state to be made within the jurisdiction of another state.

As written:

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.

As with interpreting said semi-colon as a period:

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.

Clearly, in the second case, WV is unconstitutional (as would be Kentucky, Tennessee, Maine, and possibly Vermont). If that semi-colon should be understood as a clear break, then the “without the consent of the Legislatures of the States concerned as well as of the Congress” does not modify “but no new State shall be formed or erected within the Jurisdiction of any other State” and thus there is a clear prohibition of any state being made inside the jurisdiction of another state. They spend much time exploring contemporary grammar along with other writings of the Framers. They then spend several pages arguing against this interpretation but allow that it may be the law based on changes by the committee of style, thus the caveat “probably”. They also state that, even if this was the case, WV was not in any sense “within the Jurisdiction” of Virginia when it applied for statehood. Virginia was in rebellion and most of WV was controlled by the Union. To support this, they offer the case of Vermont. Though NY claimed control of Vermont, no one would argue that NY actually exercised any control of Vermont and thus Vermont wasn’t in their “Jurisdiction”. They cite how none of the Acts creating Vermont reference NY or NY’s agreement to Vermont becoming a state. This is in sharp contrast to the situation of Kentucky, in which all Acts of statehood reference Virginia and Virginia’s approval of Kentucky’s statehood. They go on to state that the situation with Kentucky further supports the idea that the constitution does allow a state to be erected within another state. In sum, if WV is unconstitutional, then so is Kentucky, Tennessee, Maine,and arguably Vermont. They rightly reject this as absurd.

They do take care to express that the people of future WV, the congress, Lincoln, and the rest of the executive branch, all went out of their way to do this in a constitutional way in agreement with how they understood the constitution.

The California Law Review Article is the strongest argument in favor of the constitutionality of West Virginia that I’ve yet read.
Brilliant post.
 
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We'll never really know for sure, but it seems to have been done with the blessing of the majority of the people who voted in the election. At the time, of course, women didn't have the vote. Children didn't have the vote. Enslaved people didn't have the vote. Free blacks didn't have the vote. In every election, as you well know, a certain number of people are excluded from voting either because of age or residence requirements or some other issue. That's why we speak of "the electorate," "the body politic," or "registered voters." Only qualified voters are ever allowed to vote. Also, we don't normally worry about what people who choose for whatever reason not to go to the polls to vote think when we talk about the results of an election. So if someone for whatever reason decided they weren't going to travel to the voting place to vote, then does it invalidate the election? Normally we would say not.
Thanks for your reply, It's been a while since we last talked. All you say is true. In my search for the truth I do look outside of my box at what other's are saying.
 
Joined
Sep 19, 2017
Messages
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Blue Ridge Mountains, Jefferson County WV
That’s the rub. I think we can fairly state that for most of the NW counties of Virginia there was strong Union sentiment. There doesn’t seem to be a great outcry among the citizens to stop the formation of this new state, certainly not enough to make the leaders change course. We know there was already much consternation between the people of NW Virginia and the rest of the state even before the war. Can we be sure? No. Can we make an educated guess that the majority of the citizens in what became WV supported the endeavor? I would say yes.
If by most of the counties you mean slightly, 23 of the 48 voted to secede, adding Jefferson and Berkeley add one to each 24-26. This maybe why it was decided not to include Frederick and maybe Clarke counties. And of coarse there would be minorities in each county that go the other way.
 
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Voting in Congress would be a good way to decide an issue like this. Or a bunch of conservative attorneys could talk it over in chambers, put on their robes and announce a decision.
Or people could pick up guns and start shooting each other.
But I am not currently aware of an effort by people in W. Virginia and Virginia to reunite. Could happen, as noted above.
 
Joined
Oct 11, 2016
Messages
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Thanks for your reply, It's been a while since we last talked. All you say is true. In my search for the truth I do look outside of my box at what other's are saying.
If only there was more of this.

For anyone who has an actual interest, here is a day by day contemporary breakdown of the events that led to statehood for West Va.

https://www.westvirginiastatehood.com/

It's very detailed, fascinating and - wonder of wonders - Lincolns name does not appear.

This was West Virginia people who simply did not want to leave the Union. Nothing more complicated than that.

And to me, nothing on Earth is more "constitutional" than the government protecting and defending the interests of loyal citizens. Anything else is ex post facto legal badminton.
 
Joined
Jan 12, 2019
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Southern WV.
I'm new and trying to catch up on this conversation, as I read it has covered several angles to the same problem. I will have to dig up some old documents that I have copy of for future display. From a local point of view and one that is strongly felt by many people in WV.
The procedure of being approved by the state Legislature and then approved by congress is not the biggest point of disagreement here. The problem is that in Wheeling the temporary or make shift Legislature communicated with Washington before the vote, that 37 of the southern counties (A Majority) were confederate and were refusing to recognize the Northern assembled Legislature in Wheeling. The 37 counties failed to send representatives to the convention. Washington instructed Wheeling to appoint temporary representatives. We can only guess that they picked reps. with the same goal as them. The communications were discovered right after the war. it is felt that SCOTUS upheld the rulings of the states as a path to re-unite the country and move on. The people in southern WV felt Lincoln would have done anything to protect the Rail Roads as he was totaly controlled by them. (follow the Money)
 



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