Is West Virginia Constitutional?

Today’s post comes from National Archives Office of Strategy and Communications staff writer Rob Crotty.

Subpoena of West Virginia (Records of the Supreme Court, ARC 597545)

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.

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!

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