“Is West Virginia Unconstitutional?”, Vasan Kesavan, Michael Stokes Paulsen2002-03 (law, politics)⁠:

When the Commonwealth of Virginia announced it was seceding from the Union, the northwestern corner of Virginia formed a rump government-in-exile, declared itself the lawful government of Virginia, and gave “Virginia’s” consent to the creation of a new State of West Virginia consisting of essentially the same northwestern corner of old Virginia. Congress and the Lincoln administration recognized the northwestern rump as the legitimate government of Virginia, and voted to admit West Virginia as a State.

Could they do that?

This article takes on the odd but amazingly complicated (and occasionally interesting) constitutional question of whether West Virginia is legitimately a State of the Union or is instead an illegal, breakaway province of Virginia.

While scarcely a burning legal issue in the 21^st century, the question of West Virginia’s constitutionality turns out to be more than of just quaint historical interest, but also to say a great deal about textualism and formalism as legitimate modes of constitutional interpretation today.

1. Formalism and State Formation: The Story of West Virginia

   1. Nothing Secedes Like Secession

   2. Lincoln, Formalism, and the Civil War

   3. West Virginia and Formalism: Lincoln’s Constitutional Theory Applied

   4. Playing West Virginia Forward: Rehearsal for Reconstruction

   5. Reconstructing West Virginia

2. Textualism and State Creation: The Meaning of Article IV, §3

   1. The Textual Argument

      1. The Problem of Punctuation

      2. The Problem of Ambiguous Modification

      3. Conclusion

   2. The Historical Argument

      1. The Public Writings of the Federalists and Anti-Federalists

      2. The Recorded Debates of the Several State Ratifying Conventions

      3. The Early Precedents

         1. Vermont

         2. Kentucky

         3. Tennessee

      4. Conclusion

   3. The Argument from Secret Drafting History.

      1. The Work of the Committee of Detail

      2. The Recorded Debate on Article IV, §3

      3. The Work of the Committee of Style

      4. A Case of Stylistic Subterfuge?

   4. Conclusion

3. Why Would Anybody Care?

…In the summer of 1861, following the outbreak of the Civil War, 35 counties of Virginia west of the Shenandoah Valley and north of the Kanawha River met in convention in the town of Wheeling, to consider seceding from secessionist Virginia. In short order, the Wheeling convention declared itself the official, lawful, loyal government of Virginia and organized a proposed new State of (what would come to be called) West Virginia. Then, in what must certainly rank as one of the great constitutional legal fictions of all time, the legislature of Virginia (at Wheeling) and the proposed government of the new State of West Virginia (at Wheeling), with the approval of Congress, agreed to the creation of a new State of West Virginia (at Wheeling), thereby purporting to satisfy the requirements of Article IV, §3 of the Constitution for admission of new States “formed or erected within the Jurisdiction of any other State.”

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…The case of West Virginia has taken us on a walk through those sources and arguments, in what we consider to be roughly their order of priority and relative weight. Where the text, considered in context, and taking account of contemporaneous rules of grammar and style (itself not always an easy task, as we have seen with Article IV, §3!), does not yield a single clear meaning, consider the structure and logic of the provision in relation to other constitutional provisions, contemporaneous public sources that explicate the meaning of the provision at issue or the terms used, contemporaneous private sources that explicate the meaning of the provision at issue or the terms used, and early applications of the provision in concrete situations. Each of these sources has its limitations of reliability and pertinence, but in terms of ascertaining the original meaning of the Constitution’s language, each of these sources is at least a competent source of evidence that should be considered, and—usually—in roughly this order of priority.³⁸⁹

In the case of Article IV, §3, it takes resort to second-best & third-best evidence of constitutional argument to reach the conclusion that new breakaway States are permitted with the appropriate consents, and reliance on this evidence is never perfectly safe. But sometimes arguments in one category can reinforce weak conclusions in other (higher priority) categories. In many ways, our discovery of the best meaning of Article IV, §3 is one that emphasizes both hierarchy and interconnectedness in the different types of constitutional argument

Significantly, it is only when we reach the records of the Philadelphia Convention—the “secret legislative history” unavailable (except through leaks) to those with the political authority to ratify the Constitution—that we can feel reasonably comfortable in the conclusion that Article IV, §3 permits new States to be formed from within existing ones. Text alone (semicolons, antecedent reference problems) is not determinative, inclining (slightly) against the validity of breakaway States. The structure and logic of Article IV, §3 dictate no single necessary conclusion; it is not at all absurd to think the Framers might have meant to prevent such arrangements(to preserve the Senate representation rule of the Great Compromise), even if other means of circumventing such a prohibition might be found. Madison’s exposition in The Federalist and Martin’s similar reading in Genuine Information support the conclusion permitting breakaway States, but not overwhelmingly. It takes the Philadelphia debates to seal the deal. Absent this second-best or third-best evidence, and its coherence with the public statements on this issue of both proponents and opponents of the Constitution, the constitutional validity of West Virginia would remain, we think, up for grabs. The fact that early practice fits the breakaway-States-permitted reading would not be sufficient, in our view, because practice only sometimes matches constitutional meaning, and a wrong precedent is still, well, a wrong precedent

We took West Virginia as our test case in part because of its surprising difficulty and the diversity of methodological issues it presents concerning constitutional interpretation.We took it as our test case in part also because it is just plain fun—a nifty historical and linguistic curiosity. We hope to leave West Virginia better off than we found it—constitutionally, that is. For now, after 139 years, we hope we can finally extinguish a long smoldering, but surely not burning, historical constitutional issue. West Virginians may rest secure in the knowledge that their State is not unconstitutional.

Probably.