Rogue State

Rogue State: The Unconstitutional Process of Establishing West Virginia Statehood
is a study of the constitutionality of West Virginia statehood. It focuses on events leading to West Virginia's application for and admission to the Union, and the constitutional issues related to those developments.

Rogue State seeks to address several questions, including the following:

How and why did West Virginia become a state?

How and why did “Virginia” consent to the separation of fifty of its western counties to create a new state?

What were the key military, political, legal, and constitutional issues involved in this process?

Who were the principal leaders of the separatist movement, and why did they seek separation from Virginia?

What were the roles of President Abraham Lincoln, his cabinet, and the United States Congress in the process of creating and accepting a new state for the Union in 1863?

Why has Virginia never sought to recover those western counties?

Rogue State: The Unconstitutional Process of Establishing West Virginia Statehood
includes text, sources, and documents following the text and endnotes. Endnotes are found at the conclusion of the text. They are indicated in the text by parenthetical notations, i.e. (Note 1), (Note 2), etc.

Richard H. Owens, Ph.D.,
Powell, Ohio
May, 2012

West Virginia entered, and remains, in the Union under unconstitutional circumstances. West Virginia's severance from Virginia and reincorporation as a new state in 1863 occurred outside the bounds of constitutional legality. West Virginia statehood resulted from a unique but sadly hypocritical series of developments by which the United States government, while pledged to prevent the secession of eleven states from the Union, nevertheless condoned, abetted, supported, and ultimately affirmed the secession of fifty [West Virginia today contains fifty-five] counties from one of those states without the permission of the original state, i.e. Virginia.

Although President Abraham Lincoln abetted the process under his war powers and the federal government acting through the United States Congress conveniently employed the necessary political fig leafs, the reality of the unprecedented and unconstitutional process by which West Virginia was created marks the only time in American history that a state was created and admitted to the Union outside the boundaries of the prescribed constitutional process.

Following implementation of the U.S. Constitution in 1789, Vermont [claimed by New York and New Hampshire], Kentucky [from Virginia], Tennessee [from North Carolina], and Maine [part of Massachusetts] became states with the consent of the states that claimed those areas. Even Lincoln's own Attorney General, Edward Bates, declared that the process by which West Virginia was admitted was unconstitutional.

The United States government produced a façade of legality and constitutionality to create a rationale to justify secession of one part of a sovereign state to form another.

Yet secession correctly was not condoned by United States recognition of the eleven Confederate states. Nor was it permitted for states or parts of states by the U.S. Constitution. Their secession had no constitutional provision or precedent.

Lincoln and the U.S. Congress consistently denied the legality of secession of any state. Yet, in the case of West Virginia, the secession of part of the sovereign Commonwealth of Virginia was permitted to produce another state.

The United States Constitution, Article IV, Section 3, 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. (Author's italics).

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.

The meaning is clear and immutable. Neither President Lincoln nor Congress ever acknowledged, admitted, certified, or affirmed that any of the states that sought to secede from the Union actually or in fact had done so. Secession was impossible in an inviolable Union. Prima facie, it could not be allowed and could not happen. The legally constituted and elected jurisdictions of Virginia [its legislature, governor, and judiciary] never dissolved themselves, even though they attempted to dissolve their bonds with the federal Union.

Nor did the duly constituted authorities of the State of Virginia ever consent to the separation or severance of any part of the Commonwealth of Virginia for the purpose of forming a new state.

The only times that Virginia did consent to such a separation under the aegis of the U.S. Constitution, were its donation of land for the new Federal City in the 1790's [a donation rescinded some years later with no opposition or resistance from the United States government] and the 1870 ex post facto and coerced recognition of the removal of two counties to a new state called West Virginia. Finally, the counties that formed West Virginia in 1863 were not federal territories. They were part of an existing [original] state. Congress had no constitutional authority to sever them or countenance their separation. In 1861-1863, Virginia granted no such allowance to the fifty counties in the west that separated from it, or to the federal government in Washington. Yet, as a result of West Virginia statehood, Virginia lost nearly thirty five percent of its land area and about twenty five percent of its population.

Through it all, according to the rules and mandates of the U.S. Constitution, the Federal Congress, and the President of the United States, Virginia had never left the Union. Lincoln and Congress always insisted on that maxim. Therefore, Virginia constitutionally could not be compelled to forfeit any of its lands without its own consent. And that consent was never granted.

The U.S. Congress and President Lincoln were creative and persistent, as well as hypocritical, by imposing a double standard on Virginia. Although according to both Lincoln and the Congress the Old Dominion never left the Union in 1861, strangely in 1863, it was no longer protected by the bonds of that Union and the Constitution.

Although Virginia never dissolved its own government and state constitution, the United States still went forward with recognition of a group of self-appointed representatives of the “Restored” or “Reorganized” State of Virginia. They then allowed dissolution of that state's territory and territorial integrity in order to form a new state from the remnant counties in the west.

In abstract debate, either position is defensible, to a point. But in no logical interpretation could fail to detect the inconsistency, irregularity, and unconstitutionality of the process by which West Virginia entered the Union.

Additionally, Article IV, Section 4, of the U.S. Constitution states:

The United States shall guarantee to every state in this union a republican form of government
, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence. (Author's italics).

That means that the U.S. government had no constitutional or legal right, including those implied in the war powers of the president acting as commander-in-chief, to abridge the rights of the duly elected republican government of the Commonwealth of Virginia, despite the fact that the state, as so often stated by President and the Congress, was in rebellion. Nor should federal protection of the states against “invasion” preclude internal rebellion or dissolution.

Again, the salient point is that at no time did Lincoln or Congress ever acknowledge that Virginia and the other ten states of the Southern Confederacy ever left the Union. Thus, before and after the attempt of its western counties to secede, Virginia and the states of the Southern Confederacy were entitled to the full protection of the U.S. government and the Constitution of the United States. That security included freedom from dissolution of the elected governments within and the territorial boundaries of those states.

Regarding the First Reconstruction Act (titled: “An Act to Provide for the More Efficient Government of the Rebel States”) enacted on March 2, 1867, there was no provision even then for severance or separation of any parts of the former Confederate states. The act stated: “Whereas no legal State governments or adequate protection for life or property now exists in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas; and whereas it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be legally established.”

No lands were confiscated from any of the seceded states in the post-war Reconstruction of the Union (unlike major portions of Indian lands west of the Mississippi which were confiscated by the federal government as punishment for several tribes siding with the Confederacy during the Civil War). The only exception was made for the truncation of Virginia in 1863.

Even if one accepts the reality of the absence of effective government in the defeated Southern states in the years 1865-1867 [per the Reconstruction Act of 1867], that clearly was not the case during the years 1861-1865 when Virginia's state government was intact, functioning, and free from federal military control. Yet the period 1861-1863 was the time when West Virginia was created and admitted [1863] to the Union. Moreover, since the U.S. Constitution prohibited then and still forbids ex post facto laws, neither the Reconstruction Acts nor other legislation could justify or make constitutional after the fact the illegal separation of part of Virginia from the Commonwealth without the consent of Virginia itself.

That consent was never granted. The process that resulted in the creation of West Virginia was born of wartime expediency, not constitutional scruple.

And, that process in 1861-1863 created a “rogue state.”

Division and controversy had old roots in Virginia. From the formation of the earliest English colonial communities in America, sectional differences existed between western and eastern areas. That was especially true in Virginia as early as the seventeenth century. Bacon's Rebellion of 1676 was a classic example of tidewater-frontier [east-west] friction and dispute. Those political, economic, and cultural differences became more acute after greater numbers of new settlers moved west of the Appalachians.

Physical, economic, political, and cultural differences between the two areas of the state continued to diverge throughout the eighteenth and nineteenth centuries. There were also religious differences, with many settlers west of the mountains participating in a more individual and emotional style of Christianity typical of the Second Great Awakening, and adhering to a strict Calvinist spirituality, with its strong strain of determinism. But by far, economic and political issues separated east from west in the Old Dominion.

Finally and of greatest significance, slavery was and remained deeply rooted in the eastern areas of Virginia, especially in the coastal and tidewater regions. Although the nature of Virginia's slave economy evolved from eighteenth century tobacco plantations to nineteenth century slave breeding for export to the burgeoning cotton plantations farther south and west, the very existence and centrality of slavery to the political, economic, and social life of eastern Virginia marked the most significant difference and point of political divergence with the western region of the state. Yet it was less slavery
per se
than the political and economic issues resulting from it that created substantive differences between eastern and western Virginia [as well as the northern and southern portions of western Virginia].

At the same time independence was declared by the fledgling United States of America, a new Virginia state constitution was adopted in 1776. It granted voting rights only to white males who owned at least twenty five acres of improved land or a minimum of fifty acres of unimproved land. This provision reflected the interests and dominance of the eastern areas of the state, especially the coastal and Tidewater areas. Those were the areas of greatest slave prevalence.

The effect of the suffrage provision was a real and perceived political discrimination against the emerging class of small land owners in the western areas of the state. Most residents of western Virginia either did not own the land on which they lived, or they owned only small, less valuable parcels. Therefore, they did not have the right to vote. Due to climate, terrain, and their small farms, they owned very few slaves. Incrementally, between the American Revolution and the Missouri Crisis of 1819-1821, the issue of slavery and the related economic, political, and cultural issues that attended it became more important in Virginia and the nation.