Saturday, January 22, 2011

West Virginia Weekend: Is the State Itself Unconstitutional?

WV Weekend Logo The recent constitutional controversies that have arisen in West Virginia are particular, but hardly unique.  Similar problems of succession under state constitutions can affect any number of states: recall the situation in New York in the summer of 2009.

However, there is an argument that West Virginia itself is unconstitutional.  The problem is not one of succession but one of secession.  Virginia seceded from the Union in the Spring of 1861; by autumn, a number of western Virginia counties voted to form a new Unionist state.

In their article “Is West Virginia Unconstitutional?,” 90 Cal. L. Rev. 291 (2002), available on ssrn, Vasan Kesavan and Michael Stokes Paulsen (of University of St Thomas School of Law),  confront

the amazingly complicated question of whether West Virginia is lawfully a State of the United States, a question whose answer is more than a quaint historical curiosity, but is surprisingly rich in its implications for constitutional interpretation today.  The constitutionality (or not) of West Virginia is a parable with potentially huge lessons to teach about constitutional “formalism”–strict adherence to the clear structural commands of the Constitution, even when they seem inconvenient or even nonsensical–and about “textualism”–legal interpretation governed by the meaning the language (and punctuation) a legal text would have had to a fully informed speaker or read at the time of its adoption–as a methodology of constitutional interpretation.

Id. at 294.  The argument that West Virginia may not be a state rests on the troublesome language of  Article IV, Section 3, Clause 1 of the U.S. Constitution:

New States may be admitted by the Congress into this Union; but no new State 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 mandate within the second clause - - - that “no new State shall be formed or erected within the Jurisdiction of any other State”– - - appears to flatly prohibit the creation of a new state from within the territory of a preexisting state, irrespective of whether consent is given.  The case of West Virginia, carved out from Virginia, would seem to fall under this prohibition. 

Kesavan and Paulsen's discussion of textualism focuses on the second semicolon of Article IV, Section 3 , which may be more like a comma than a period, or perhaps not.  The meaning of this semicolon is unclear because punctuation use in the Constitution is too imprecise, too non-uniform, and too unclear.  As to the problem of ambiguous modification, the consent proviso may modify the antecedent second clause that relates to the partition of a State, but it may not.  Indeed, the presumption of the last-antecedent canon is that the consent proviso does not modify the antecedent second clause.  The answer is not clear one way or the other, and the last-antecedent canon is not an inflexible rule.

Next, the authors turn to the history, structure, and the so-called “secret drafting history” of the Constitution.  They conclude that “[t]he second-best evidence–the history–better (though imperfectly) supports the interpretation that new States may be formed or erected within the jurisdiction of another State with the appropriate consents. The secret drafting history clearly shows that this interpretation was intended.” Id. at 395.

While in the end there is no clear answer to the assailed statehood of West Virginia, Kesavan and Paulsen build a strong case against such conclusions.

Only if one ascribes presumptive (or more) significance to the semicolon and the last-antecedent canon; leans against the position of both advocates of the Constitution (James Madison) and opponents (Luther Martin); treats as immaterial the construction placed on Article IV, Section 3 by early Congresses; and ignores the records of the Philadelphia Convention suggesting a contrary specific intention and understanding (even if not public) can one conclude that the second clause of Article IV, Section 3 is a flat prohibition on new breakaway States.  One has to work hard to adopt the destructive interpretation, and as we noted earlier, even that interpretation is not conspiracy-proof.  The better conclusion, though by no means an unassailable one, is that new breakaway States are permitted with the appropriate consents, and that West Virginia (and Kentucky, Maine, and to the extent still in doubt, Vermont) are constitutional.


Robert Bastress, West Virginia constitutional law expert and WVU College of Law Professor, summarizes the interesting case of Virginia v. West Virginia, 78 U.S. 39 (1871), a case which arose from a boundary dispute when Virginia was attempting to reclaim two counties–Berkeley and Jefferson–from the clutches of its western neighbor.  Virginia was ultimately unsuccessful in recovering the counties.  Thus,  while West Virginia's statehood issue has never been definitively settled by the U.S. Supreme Court, Bob Bastress writes that the Court “settled, for practical purposes, the statehood issue.” 

Before coming to WVU for a visit as the John T. Copenhaver chair this year, I was only vaguely aware that there were questions regarding the constitutionality of the state's formation.  With those issues seemingly settled, this semester's "West Virginia Weekend" series will highlight other constitutional matters and scholarship.


(with J. Zak Ritchie, WVU College of Law, Class of 2011).

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I, too, have thought about this. Since I first learned about that clause bugged me. I am neither a legal expert, or even a student of law ; however, I was wondering if the authors considered what would come about if the Supreme Court agreed with them.

It seems to me, if The Court does in fact uphold that West Virgina was unconstitutional admitted, this would have rather important affects to Virgina and The US. First, pursuant to declaraing West Virgina's admittance unconstitutional, Virgina population's grows, perhaps frustratingly, as West Virgina never existed as a legitimate state, to make law,acts, and accords, with Birth certificates must be declared nulled. Immediate affects would be West Virgina loses all federal representation and West Virgina, because there is West Virgina to represent.Marriages legitimized by West Virgina invalid, West Virginan Court decisions, all convictions and aquittals. Prisioners under the alleged authority released. Hopefully, Virginan state statues of limitations are wide.

Posted by: Ross Griffith-Smith | Mar 20, 2013 8:26:57 PM

Article IV Section 3 of the US Constitution states that it is forbidden. However, a new state may be created out of an existing with the blessings of the existing state. Virginia allowed it, therefore, West Virginia IS a state.

Posted by: Adam | May 26, 2013 12:34:19 AM

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