The creation of the State of West Virginia is an event unparalleled in American history. Formed in the midst of War Between the States, it launched a storm of controversy that did not settle until a Supreme Court decision in 1871. The main issue of concern was the constitutionality of its creation. In treading through the labyrinth of facts, myths, and legal arguments, the fact remains that the Constitution of the United States was wholly ignored in favor of political expediency.
Article IV, Section 3 of the Constitution states: 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. Section 3 clearly states that no state shall be formed from any other state. The clause is surrounded by semi-colons suggesting a hard break in the language of the text. This excludes it from applying to the prior and following clause which gives Congress the creation and consent authority for new states. Thus, it seems pretty explicit that no new states shall be formed from an existing state.
On April 17, 1861 in Richmond Virginia 49 delegates from the future state of West Virginia voted 17 in favor of the Ordinance of Secession, 30 against and 2 abstentions. Almost immediately after the vote, the delegates from western Virginia met at Clarksburg where it was decided that each county in western Virginia were going to send delegates to a convention in Wheeling on May 13, 1861 to determine if they would be able to secede from Virginia and form their own state. At this convention some of the delegates favored immediate secession and formation of a new state but others wanted to wait until the plebiscite decided the secession issue once and for all. They also felt that since Virginia had not yet seceded, their secession movement from Virginia might be construed as a rebellion against the United States. It was decided at this point to hold off on voting for secession until the results of the vote were made public.
On May 23, 1861 the Virginia Ordinance of Secession was overwhelmingly ratified by the people of Virginia, 125,950 to 20,373. Looking back to the 1860 election, there were a total of 50,049 eligible voters in western Virginia. In the vote on the Ordinance of Secession, if one were to assume that all of the negative votes were cast in western Virginia, then less than half of the people in western Virginia could have possibly voted against secession. A slight majority of voters in western Virginia may have approved of Virginia's secession.
The delegates attending the Second Wheeling Convention on June 11 do not appear to be valid representatives of their districts. The convention opened with 100 delegates attending from thirty-four counties. More than one-third of the delegates were former members of the Virginia assembly. Several were sent by military authorities and some were self-appointed. There were no delegates from the northeastern counties of Hardy, Hampshire, and Jefferson; counties that were to be incorporated later into West Virginia. On June 19th, an act for reorganizing the government was passed. The next day, Francis H. Pierpont was chosen by the delegates to be the Governor of Virginia. Other officers were appointed and Unionists were appointed to fill other state offices. They even sent two senators to Washington and they were immediately recognized by the Senate as the legal Senators of Virginia. In essence there were two state governments, one supporting the Union and one supporting the Confederacy.
The Wheeling Convention reconvened on August 20th and called for a popular vote on the formation of a new state and to frame a new constitution should that vote be favorable. On October 24, 1861 the election occurred. The votes were 18,408 for the formation of a new state and 781 against. There have been accusations of voter irregularity since the vote totals were significantly lower than the secession votes were. The Union Army was in place and they perhaps prevented any Confederate sympathizers from casting a nay vote. At any rate, the election results were certified as valid
By 1862, the “Restored Government of Virginia” had written up a new Constitution and applied for statehood. Abraham Lincoln jumped at this opportunity. He immediately declared the representatives of the western counties of Virginia to be the “real” legislature of Virginia, and thus insisted that they had the legitimate right to call for the separation of the western counties of Virginia into a new state, West Virginia. Technically, then, the creation of “West Virginia” would be constitutional, since it was the “legitimate” legislature of Virginia that had called for the separation at least according to Abraham Lincoln.
But, Lincoln also insisted that the state legislature in Richmond, Virginia did not constitute the legislature of an alternate
government to that of the United States. That is, Lincoln refused to accept that the Richmond-based legislature represented a competitor government to that recognized by the Congress in Washington. Indeed, throughout the War Lincoln insisted that the southern states were simply areas “in rebellion against the government of the United States” (as he put it in the Emancipation Proclamation). In other words, he never acknowledged that the Virginia government had ceased being the legitimate government of the State of Virginia meaning that Richmond’s consent was required for the creation of the State of West Virginia. A consent that was never offered as was required by the US Constitution.
In terms of the West Virginia’s constitution itself, the subject of slavery produced the most controversy. Delegate Gordon Battelle proposed the gradual emancipation of slaves already in the state and freedom to all children born to slaves after July 4, 1865. Although some delegates opposed Battelle's position they knew they could not create a pro-slavery document and gain approval from Congress. Following much debate and compromise the provision written into the constitution banned the introduction of slaves or free African Americans into the state of West Virginia but did not address the issue of immediate or gradual emancipation. West Virginia was granted statehood in 1863 and the 10th state in the Union gave birth to the 35th. Thus West Virginia became the Union’s fifth slave state joining Delaware, Maryland, Kentucky and Missouri.
In 1866 Virginia attempted to regain jurisdiction over all of its former counties but was rebuffed. Refusing to drop the issue Virginia filed a claim against West Virginia in December of 1866 to regain its jurisdiction in the counties of Berkeley and Jefferson. In 1867 the Supreme Court heard the case Virginia v. West Virginia but the odds were stacked against the Old Dominion. There was not a single Justice from the South on the Supreme Court, and the Chief Justice was none other than Salmon P. Chase, a Lincoln appointee who was approved by the Senate at a time when there was no Southern representation in the Capitol. Not surprisingly Virginia lost in a 6-3 decision 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.
In 2012 Barrack Obama weighed in on the subject speaking off-the-record at a Campaign Dinner being held in White Sulphur Springs, WV, "It is beyond time to repair the damage done to the Union by Lincoln and restore the Commonwealth of Virginia to its previous glory and shape." But like everything happening in our Country today I believe Obama’s thoughts may have more to do with Politics than History. At the time Obama was a bit miffed that WV Senator Joe Manchin had repeatedly confronted his Administration when it came to coal and the EPA. He also stated that he was unsure who he was going to vote for? That had to upset Obama and I'm sure he hasn't forgotten that West Virginia hasn't voted Democrat in the Presidential Elections since 1996.
The creation of West Virginia was an illegal act. Aside from being expressly forbidden in the Constitution, Congress and Lincoln failed to perform their constitutional duty to guarantee a Republican form of government, by both its recognition of the Restored Virginia government and its admission of West Virginia. The arbitrary and revolutionary natures underpinning both state governments were well known to all parties. Yet expedient consideration admitted West Virginia rather than constitutional consideration.