West Virginia: Unconstitutional

On June 20, 1863, one hundred forty years ago this summer, West Virginia became the 35th state – or so we are taught. However, reading the US Constitution raises some serious questions. For almost a century and a half, America has been living a lie. By the terms of the Constitution under which we believe we live, admitting the state of West Virginia was clearly unconstitutional.

West Virginia was admitted to the union in 1863, carved out of the state of Virginia – one of the original 13 colonies. Because the US Constitution contained no mechanism for a state to secede, the rebel states legally remained in the union throughout the war. Even today, the dates of admission for the rebel states are the original dates as early as 1788 – not post-Reconstruction.

Article IV, Section 3 of the Constitution states in part that “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.” The creation of West Virginia violated this provision.

West Virginia's sole claim to legitimacy is a resolution passed by a convention of pro-Union Virginians. They declared themselves the Virginia legislature without an open election – roughly the same process the Soviets used to legitimize their half-century occupation of the Baltic States. Recognition of this merely provisional government clearly violated the guarantee of a republican form of government found in Article IV, Section 4 of the Constitution.

Furthermore, during the Senate debates over West Virginia statehood, several senators realized that the attempt to create the new state was both unconstitutional and improper. On July 14, 1862, Senator Trumbull of Illinois argued that the time was not right to divide Virginia:

“When the rebellion is put down in Eastern Virginia, it is to be put down by driving into exile, or killing upon the battle-field, or hanging upon the gallows the traitors who would overrun and oppress Western Virginia; and what shall be left in Eastern Virginia will be like you in Western Virginia, loyal and true to the State and the Union, and you may all act harmoniously together... Then will be the time, if you shall think it best, to divide the State and have two States out of what was formerly Virginia.”

Later, Senator Powell of Kentucky explained the main legal objections to West Virginia:

“If the cities of New York and Brooklyn and the counties in which they are, were to get up a little bogus legislature and say they were the State of New York, and ask to be admitted and cut off from the rest of the State, I would as soon vote for their admission as for the admission of this new State. No Senator pretends to claim that a majority, that even a third of the people in the State of Virginia, have ever had anything to do with rendering their assent to the making of this new State within the territorial limits of that ancient Commonwealth.”

On December 27, 1862, Attorney General Edward Bates wrote to President Lincoln advising him to veto the West Virginia statehood bill. He explained the true status of the pro-Union convention: “It is a provisional government, proper and necessary for the legitimate object for which it was made and recognized. That object was not to divide and destroy the State, but to rehabilitate and restore it.” He also asserted that the convention that divided the state was not “such legislature of Virginia as the Constitution speaks of-a legislature representing and governing the whole, and therefore honestly and lawfully speaking for the whole, in a matter which concerns the fundamental conditions of the State…” However, Lincoln chose to ignore his Attorney General and approved the unconstitutional state of West Virginia.

While the state of Virginia was the birthplace of six of our first eleven Presidents, it does not deserve double representation in the US Senate. The continued acceptance of West Virginia is an affront to the Constitution and the rule of law. For nearly a century and a half, our flag has had one extra star, our Senate has had two extra Senators, and the Electoral College has had two extra electors. The implications are staggering, ranging from how we understand American history to the very balance of power in Congress.

Help promote the rule of law and the authority of the US Constitution – contact your senators and representatives in Congress and ask them to repeal West Virginia's statehood. Share this crucial information with your friends and family. When writing to addresses in West Virginia, use the correct state abbreviation: “VA.” Take a few minutes to sit down and read the Constitution. It is not too late to do what is right.

A bit of advice for our West Virginian readers: Read the article and the U.S. Constitution more than once (or completely), then look up the word "unconstitutional."