Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional?


Is West Virginia Unconstitutional?
Vasan Kesavan & Michael Stokes Paulsen

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 twenty-first 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.

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