Question About The US Constitution During The Civil War

[thenotch]

Didn't know where else to stick this... I posted this over at my two websites but thought I would get an opinion from the FC crowd...

The question pertains to Article IV, Section 3, Clause 1 which states:

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 question is this: Did President Abraham Lincoln break this article on the basis of the split of the state of Virginia to create the state of West Virginia? Obviously the legislature of Virginia did NOT give complete consent to this.

If one was to use the argument that since Virginia seceded and therefore lost it's rights as a state wouldn't that give validity to Virginia's sovereignity and a legal precedence to have seceded? If not then it would appear that President Lincoln broke the law concerning this article.

Congress very well may have said, "sure, create the state so we can have another state on the side of the Union". But Viginia's legislature most certainly did not want part of her state taken away from her and I can bet you they did not consent to this action taking place.

So again, was Lincoln and Congress justified in their actions or did Virginia have every right to secede by his actions?

[Timberwolf]

I found the following:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/78/39.html
I don't know too terribly much about this issue, but I hope the above helps.

[DeclinetoState]

From T-wolf's link:
Under this act, no elections apparently were held; and on the 31st December, 1862,1 Congress passed

An Act for the admission of the State of 'West Virginia' into the Union, and for other purposes.

Whereas, The people inhabiting that portion of Virginia known as West Virginia, did by a convention assembled in the city of Wheeling, on the 26th November, 1861, frame for themselves a constitution with a view of becoming a separate and independent State; and whereas, at a general election held in the counties composing the territory aforesaid, on the 3d of May last, the said constitution was approved and adopted by the qualified voters of the proposed State; and whereas, the legislature of Virginia, by an act passed on the 13th day of May, 1862, did give its consent to the formation of a new State within the jurisdiction of the said State of Virginia, to be known by the name of West Virginia, and to embrace the following named counties, to wit [the forty-eight counties mentioned in the above-quoted Virginia act of May 13, 1862, were here set forth by name, and not including Berkeley or Jefferson]; and whereas, both the convention [78 U.S. 39, 44] and the legislature aforesaid have requested that the new State should be admitted into the Union, and the constitution aforesaid being republican in form, Congress doth hereby consent that the said forty-eight counties may be formed into a separate and independent State; therefore,

Be it enacted, &c., That the State of West Virginia be, and is hereby declared to be one of the United States of America, and admitted into the Union on an equal footing with the original States, in all respects whatsoever, &c.

The act contained a proviso that it should not take effect until after the proclamation of the President of the United States, hereinafter provided for. It then proceeded to recite that it was represented to Congress that since the convention of 26th November, 1861, which framed and proposed the constitution for the said State of West Virginia, the people thereof had expressed a wish to change the 7th section of the 11th article of said constitution, by striking out the same, and inserting the following in its place. The article [on the subject of slavery] was then set forth. It was therefore further enacted that whenever the people of West Virginia should, through their said convention, and by a vote to be taken, &c., make and ratify the change aforesaid, and properly certify the same under the hand of the president of the convention, it should be lawful for the President of the United States to issue his proclamation stating the fact, and that thereupon this act should take effect, and be in force from and after sixty days from the date of the proclamation.
I don't know what all of this means, except that politicians were just as long-winded back then as they are now.

I take it that a "legislature of Virginia" was created to legitimize the secession of West Virginia from Virginia, but that it was not the same "legislature of Virginia" that voted to secede from the Union—which presumably, by voting to secede, made itself illegitimate.

[DeclinetoState]

If it were ever to be determined that West Virginia was not properly split off from Virginia, would that mean we could get rid of Sen. Byrd?

[Plain Old Dave]

Cliff's Notes Timeline....

1) Virginia exercised her Constitutional right of secession

2) Numerous people in Western Virginia were opposed to the same

3) The people in Western VA considered secession= treason

4) The people in Western VA convened representatives in Wheeling which:

a) declared the State Assembly in Richmond had committed treason in seceding from the Union
b) declared THEMSELVES to be the lawful State Assembly of the Commonwealth
and c) detached their own counties from the Commonwealth

5) Lincoln signed off on this questionable action

6) New State: West Virginia