Happy Birthday, Mountain Mama

144 years ago today - June 20, 1863 - West Virginia became the 35th State. As we pause to celebrate the birth of our little bastard state, it's worth remembering West Virginia's unique history. Two bits of that deserve mention on her birthday.

First, of course, is the whole means by which the state came to be in the first place. Long story short: Virginia seceded prior to the Civil War, the western counties didn't like that and formed a new government in Wheeling, that government eventually formed the new state of West Virginia. The unique circumstances of the state's creation - it's the only one taken wholly from another existing state without the other state's participation - has led some scholars to wonder whether the state's existence violates the Constitution.

Specifically, attorney Vasan Kesavan and law prof Michael Paulsen wrote a law review article a few years ago called "Is West Virginia Constitutional?" the California Law Review).* As they put it:

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.'

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 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 reader at the time of its adoption--as a methodology of constitutional interpretation.

The question, basically, is whether the US-recognized government of Virginia - the one in Wheeling post-secession, not the one in Richmond - could give consent for the creation of a new state within its borders. Via some impressive use of legal fictions, that's exactly what happened. So what's the bottom line - are we on our way back into a shotgun wedding with the Old Dominion? Thankfully not:

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 [now 144] 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.

The other nifty bit of history to be commemorated today is West Virginia's history of moving capitols. As this article (and associated whopping huge PDF file of the actual page from today's paper) from the Charleston Gazette shows, the capitol has changed locations six times over the state's history, bouncing back and forth between Wheeling and Charleston:

Charleston wasn’t in the plans in the beginning. Wheeling, the largest city in western Virginia, was originally named capital of the new state and the Capitol was temporary located in a building on the campus of Linsly Institute there.

Somehow southern lawmakers gained support to move the capital more toward the center of the state in 1870, locating in Charleston and creating the capital city’s Capitol Street, the street where the Capitol was located.

But that was short-lived. By 1875 the state’s seat of government returned to Wheeling and an architecturally different structure was completed and opened as the new Capitol. After several years, though, lawmakers decided it was easier to get to Charleston from around the double-panhandled state than to the Northern Panhandle.

As they say, history is geography.

So, anyway, happy birthday West Virginia! Many happy returns (jedi jawa sends his regards as well).

* It's not available online, sadly, as it is a fascinating (if lengthy) article. For those with the resources, the full cite is Kesavan, Vasan and Michael Stokes Paulsen, "Is West Virginia Constitutional?", 90 Cal. L. Rev. 291 (2002).