Brev. Brig. Gen'l
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- Jan 7, 2013
- Long Island, NY
IMHO the use of 'legal fiction' is a problem. We have Luther v Borden and Texas v White ruling that Congress gets to recognized States' governments with the SCOTUS decisions upholding the creation of West Virginia suggesting something different.
For the next decade the governments of all of the so-called Confederate states would have, at one point or another, state governments that conformed to Congressional requirements rather than to the wishes of the formerly whites-only pro-Confederate electorates. These Reconstruction state governments were able to enact laws, carry on the administration of government, and enter into contracts and those actions have never been overturned in the courts on the basis of the illegitimacy of the Reconstruction government.
What would the alternative for Congress have been in 1862? To recognize that the Richmond government was the legitimate authority in Virginia? To petition that Richmond government for permission to split the state?