Abstract
Brace yourselves for this one, Mountaineers: West Virginia might not legitimately be a State of the Union, but a mere illegal breakaway province of the Commonwealth of Virginia. In the summer of 1861, following the outbreak of the Civil War, thirty-five 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, Section 3 of the Constitution for admission of new States "formed or erected within the Jurisdiction of any other State." 1 Could they do that? In this Article, we take on 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 ...