Today in 1862: West Virginia joins the Union as a breakaway state

December 31, 2010

Today in Legal HistorySoon after Virginia joined the Confederacy in April 1861, 48 counties in western Virginia broke away and formed their own provisional state government. But it wasn’t until the final day of 1862, a full two weeks after Congress approved statehood for West Virginia, that Abraham Lincoln signed the Act that would make it so.

West Virginia was strategically important to the Union’s Civil War effort, and most of its citizens were eager to rejoin the United States. Even so, Lincoln had to think long and hard about the constitutionality of the Act before signing it into law.

The people of western Virginia were more closely aligned with their nearby neighbors in Ohio and Pennsylvania than with their fellow Virginians on the other side of the rugged Appalachians. Within weeks of Virginia’s secession, leaders in West Virginia hastily set up a provisional government in Wheeling and deemed it the “restored government” of Virginia. The people elected a new governor, a legislature and representatives to Congress, and in October 1861, they voted to pursue statehood.

The House quickly passed the statehood act, but the in the Senate, serious questions were raised about its constitutionality.  At issue was the Constitution’s Article 4, Section 3:

“New States may be admitted by the Congress into this Union; but no new States 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.”

Had the requirement for “the Consent of the Legislatures of the States concerned” really been met? After all, the “Virginia legislature” that gave its consent provided virtually no representation for the citizens of eastern Virginia, where the majority of Virginians lived.

In his own trademark style, Lincoln asked his cabinet members for their opinions on whether the Act passed constitutional muster.

West Virginia - antique mapThree submitted memoranda to the president in favor of statehood. One of them – Secretary of State William H. Seward – argued that the United States shouldn’t recognize secession and should reward loyalty. He insisted that the “restored government” was “incontestably the State of Virginia,” and thus the approval of its legislature was valid.

Three other cabinet members argued that it was unconstitutional, because the people of larger Virginia had no real say in the matter. “Mere expedience should not override constitutional obligations,” wrote Navy Secretary Gideon Wells.

In the end, Lincoln convinced himself that granting statehood to West Virginia would indeed be constitutional. His own opinion was published years later; here’s an excerpt that illuminates his thinking.

“Can this government stand, if it indulges constitutional constructions by which men in open rebellion against it, are to be accounted, man for man, the equals of those who maintain their loyalty to it? Are they to be accounted even better citizens, and more worthy of consideration, than those who merely neglect to vote? If so, their treason against the constitution, enhances their constitutional value! Without braving these absurd conclusions, we can not deny that the body which consents to the admission of West-Virginia, is the Legislature of Virginia.”

After the war, Virginia sued West Virginia in an attempt to force the breakaway state to return, but in 1870 the U.S. Supreme Court decided in favor of West Virginia – thus making West Virginia the only state to successfully secede from another.