Virginia v. West Virginia
Encyclopedia
Virginia v. West Virginia, 78 U.S. 39 (1871), is a 6-to-3 ruling by the Supreme Court of the United States
which held that where a governor has discretion in the conduct of the election, the legislature is bound by his action and cannot undo the results based on fraud. The case implicitly ratified the secession of the state of West Virginia
from the state of Virginia
, and explicitly ratified that the counties of Berkeley
and Jefferson
were part of West Virginia.
, Virginia seceded
from the United States in 1861 over slavery. But many of the northwestern counties of Virginia were decidedly pro-union. At a convention duly called by the governor and authorized by the legislature, delegates voted on April 17, 1861, to approve Virginia's secession from the United States. Although the resolution required approval from voters (at an election scheduled for May 23, 1861), Virginia's governor entered into a treaty of alliance with the Confederate States of America
on April 24, elected delegates to the Confederate Congress on April 29, and formally entered the Confederacy on May 7.
Unionist sentiment was so high in the northwestern counties that civil government began to disintegrate, and the Wheeling Intelligencer
newspaper called for a convention of delegates to meet in the city of Wheeling
to consider secession from the state of Virginia. Delegates duly assembled, and at the First Wheeling Convention
(also known as the May Convention), held May 13 to 15, the delegates voted to hold off on secession from Virginia until Virginia formally seceded from the United States. Concerned that the irregular nature of the First Wheeling Convention might not democratically represent the will of the people, elections were scheduled for June 4 to formally elect delegates to a second convention, if necessary. Virginians voted to approve secession on May 23. On June 4, elections were held and delegates to a Second Wheeling Convention
elected. These elections were irregular as well: Some were held under military pressure, some counties sent no delegates, some delegates never appeared, and voter turnout varied significantly. On June 19, the Second Wheeling Convention declared the offices of all government officials who had voted for secession vacant, and reconstituted the executive and legislative branches of the Virginia government from their own ranks. The Second Wheeling Convention adjourned on June 25 with the intent of reconvening on August 6.
The new Reorganized Governor, Francis Harrison Pierpont, asked President Abraham Lincoln for military assistance, and Lincoln recognized the new government. The region elected new U.S. Senators
and its two existing Representatives
took their old seats in the House
, effectively giving Congressional recognition to the Reorganized Government as well.
After reconvening on August 6, the Second Wheeling Convention again debated secession from Virginia. The delegates adopted a resolution authorizing the secession of 39 counties, with the counties of Berkeley, Greenbrier
, Hampshire
, Hardy
, Jefferson, Morgan
, and Pocahontas
to be added if their voters approved, and authorizing any contiguous counties with these to join the new state if they so voted as well. On October 24, 1861, voters in the 39 counties plus voters in Hampshire and Hardy counties voted to secede from the state of Virginia. The ballot also allowed voters to choose delegates to a constitutional convention, which met from November 26, 1861, to February 18, 1862. The convention chose the name "West Virginia," but then engaged in lengthy and acrimonious debate over whether to extend the state's boundaries to other counties which had not voted to secede. Added to the new state were McDowell
, Mercer
, and Monroe
counties. Berkeley, Frederick
, Hampshire, Hardy, Jefferson, Morgan, and Pendleton
counties were again offered the chance to join, which all but Frederick County did. A new constitution for West Virginia was adopted on February 18, 1862, which was approved by voters on April 4.
Governor Pierpont recalled the Reorganized state legislature, which voted on May 13 to approve the secession (and to include Berkeley, Frederick, and Jefferson counties if they approved the new West Virginia constitution as well). After much debate over whether Virginia had truly given its consent to the formation of the new state, the United States Congress adopted a statehood bill on July 14, 1862, which contained the proviso that all blacks
in the new state under the age of 21 on July 4, 1863, be freed. President Lincoln was unsure of the bill's constitutionality, but pressed by Northern senators he signed the legislation on December 31, 1862. Luckily, the West Virginia constitutional convention had not adjourned sine die
, and was called back into session on February 12, 1863. The convention amended the state's constitution on February 17 to include the congressionally required slave freedom provision, and adjourned sine die on February 20. The state's voters ratified the slave freedom amendment on March 26, 1863. On April 20, President Lincoln announced that West Virginia would become a state in 60 days.
But Berkeley, Frederick, and Jefferson counties never held votes on secession or the new West Virginia state constitution, as they were under the military control of the Confederacy at the time. On January 31, 1863, the Reorganized legislature of Virginia passed legislation authorizing the Reorganized governor to hold elections in Berkeley County on whether to join West Virginia or not. The Reorganized legislature similarly approved on February 4, 1863, an election for Jefferson County (among others). These elections were held, voters approved secession, and Berkeley and Jefferson Counties were admitted to West Virginia.
However, on December 5, 1865, the Virginia Assembly in Richmond passed legislation repealing all the acts of the Reorganized government regarding secession of the 39 counties and the admission of Berkeley and Jefferson counties to the state of West Virginia.
On March 10, 1866, Congress passed a resolution acknowledging the transfer of the two counties to West Virginia from Virginia.
Virginia sued, arguing that no action had taken place under the act of May 13, 1862, requiring elections, and that the elections which occurred in 1863 were fraudulent and irregular. West Virginia filed a demurrer
which alleged that the Supreme Court lacked jurisdiction over the case because it was of a purely political nature.
wrote the decision for the majority, joined by Chief Justice
Salmon P. Chase
and Associate Justices Samuel Nelson
, Noah Haynes Swayne
, William Strong
, and Joseph P. Bradley.
Justice Miller first disposed of the demurrer. He concluded that the demurrer could not be granted "without reversing the settled course of decision in this court and overturning the principles on which several well-considered cases have been decided." He noted that the court had asserted its jurisdiction in several cases before, including The State of Rhode Island and Providence Plantations v. The Commonwealth of Massachusetts
, 37 U.S. 657 (1838); State of Missouri v. State of Iowa
, 48 U.S. 660 (1849); Florida v. Georgia
, 58 U.S. 478 (1854); and State of Alabama v. State of Georgia
, 64 U.S. 505 (1860).
Justice Miller then posed three questions for the Court to answer: :"1. Did the State of Virginia ever give a consent to this proposition which became obligatory on her? 2. Did the Congress give such consent as rendered the agreement valid? 3. If both these are answered affirmatively, it may be necessary to inquire whether the circumstances alleged in this bill, authorized Virginia to withdraw her consent, and justify us in setting aside the contract, and restoring the two counties to that State." Justice Miller then reviewed the various acts taken to reorganize the government of Virginia in 1861, and the various acts which the Reorganized Government and the United States took to create the state of West Virginia and extend its jurisdiction over the counties in question. In answering the first question, Miller wrote, "Now, we have here, on two different occasions, the emphatic legislative proposition of Virginia that these counties might become part of West Virginia; and we have the constitution of West Virginia agreeing to accept them and providing for their place in the new-born State." There was no question, in the mind of the majority, that Virginia had given its consent. Although the elections had been postponed due to a "hostile" environment, the majority concluded that the Reorganized Government of Virginia had acted in "good faith" to carry out its electoral duties in the two counties.
In regard to the second question, Miller pondered the nature of Congressional consent. Congress could not be expected to explicitly give its consent to every single aspect of the proposed state constitution, Miller argued. And clearly Congress had intensively considered the proposed state constitution (which contained provisions for accession of the two counties in question), because Congress seriously considered the slavery question regarding the admission of the new state and required changes in the proposed constitution before statehood could be granted. This debate could only lead the Court to a single conclusion, Miller stated: "It is, therefore, an inference clear and satisfactory that Congress by that statute, intended to consent to the admission of the State with the contingent boundaries provided for in its constitution and in the statute of Virginia, which prayed for its admission on those terms, and that in so doing it necessarily consented to the agreement of those States on that subject. There was then a valid agreement between the two States consented to by Congress, which agreement made the accession of these counties dependent on the result of a popular vote in favor of that proposition."
Miller now considered the third question. The majority held that although the language of the two statutes of January 31, 1863, and February 4, 1863, were different, they had the same legal intent and force. Virginia showed "good faith" in holding the elections, Miller asserted. That the Reorganized Virginia legislature did not require vote totals to be reported to it and delegated the transmission of the vote totals to West Virginia was not at issue, Miller said. It gave the Reorganized Governor discretion as to when and where to hold the votes, under what condition the votes should be held, and to certify the votes. The legislature acted within its power to delegate these duties to the Reorganized Governor, "and his decision[was] conclusive as to the result." Were these votes fair and regular? The Virginia Assembly, Miller noted, made only "indefinite and vague" allegations about vote fraud, and unspecified charges that somehow Governor Pierpont must have been "misled and deceived" by others into believing the voting was fair and regular. Miller pointedly observed that not a single person was charged with fraud, no specific act of fraud was stated, and no legal wrongs asserted. The Virginia Assembly also did not claim that the state of West Virginia interfered in the elections. Absent such allegations, Virginia's accusations cannot be sustained, Miller concluded. But even if this aspect of Virginia's argument was ignored, Miller wrote, the Reorganized legislature had delegated all its power to certify to the election to Governor Pierpont, and he had certified it. That alone laid to rest Virginia's allegations. "[She] must be bound by what she had done. She can have no right, years after all this has been settled, to come into a court of chancery to charge that her own conduct has been a wrong and a fraud; that her own subordinate agents have misled her governor, and that her solemn act transferring these counties shall be set aside, against the will of the State of West Virginia, and without consulting the wishes of the people of those counties."
wrote a dissent, joined by Associate Justices Nathan Clifford
and Stephen Johnson Field
.
Davis concluded that Congress never gave its consent to the transfer of Berkeley and Jefferson counties to West Virginia. By the time Congress did so (on March 10, 1866), the legislature of Virginia had already withdrawn its consent to the transfer of the two counties.
Davis disagreed with the majority's view that Congress had consented to the transfer of the two counties when it debated the proposed West Virginia constitution. There was nothing in the debates to ever suggest that, he wrote. What Congress agreed to was that the two counties should be offered the chance to join West Virginia by the time of the new state's admission to union with the United States. These conditions had not been met by the time of admission, and thus no transfer could be constitutionally made. Congress had not agreed to additional legislative acts of transfer, and thus they could not be made without Virginia's assent (which was now withdrawn).
on July 5, 1867. The Court would not have nine Justices again until the resignation of Justice Robert Cooper Grier
on January 31, 1870, and the confirmation of Justices William Strong (February) and Joseph P. Bradley (March) in 1870. During this three-year period, the Supreme Court was divided 4-to-4 as to whether it had jurisdiction over the case. Chief Justice Chase delayed taking up the case until a majority emerged in favor of affirming the Court's original jurisdiction rather than seek a ruling on the issue. The acceptance of original jurisdiction in this matter is now considered one of the most significant jurisdictional cases in the Court's history.
It is noteworthy that former Associate Justice Benjamin Robbins Curtis
argued the case on behalf of Virginia before the Court. He lost.
Many in Congress questioned both the legality of the Reorganized Virginia government and the constitutionality of the creation of West Virginia. Many scholars since have questioned the democratic nature of the Second Wheeling Convention, the legal and moral legitimacy of the Reorganized Government, and the constitutionality of the creation of West Virginia. But most lengthy scholarly treatments of the issue assert the legality of the Reorganized government. In Luther v. Borden
, 48 U.S. 1 (1849), the Supreme Court held that only the federal government could determine what constituted a "republican form of government" in a state (as provided for in the Guarantee Clause of Article Four of the United States Constitution
). Virginia was not alone in having two governments—one unionist, one rebel—with the union government recognized by the United States. The Supreme Court had held in Luther v. Borden, "Under this article of the Constitution it rests with Congress to decide what government is the established one in a State." As both the President and Congress had recognized the Reorganized Government, this provision was met and the entire process was legal. There were precedents for such action as well. As one legal scholar has noted, Michigan
was admitted to the union after irregular elections for three unauthorized constitutional conventions led to a request for statehood that Congress (eventually) granted in 1837. Kansas
, too, went through a highly irregular statehood process marked by violence, mass meetings masquerading as legislative assemblies, and allegations of vote fraud, but it was also admitted to the union. One widely cited legal analysis concludes that "the process of West Virginia statehood was hyper-legal". Indeed, to deny the legality of the Reorganized Government creates significant problems, two legal scholars have argued: "[It] follows, we submit, that 'Virginia' validly consented to the creation of West Virginia with its borders. Indeed, one can deny this conclusion only if one denies one of Lincoln's twin premises: the unlawfulness of secession; or the power of the national government, under the Guarantee Clause, to recognize alternative State governments created by loyal citizens in resistance to insurrectionary regimes that have taken over the usual governing machinery of their States."
Although the U.S. Supreme Court never ruled on the constitutionality of the state's creation, decisions such as those in Virginia v. West Virginia led to a de facto recognition of the state which is now considered unassailable. West Virginia's first constitution explicitly agreed to pay a portion of Virginia's debt in helping build roads, canals, railroads, and other public improvements in the new state. But these debts were never paid, and Virginia sued to recover them. In the case, Virginia v. West Virginia
, 220 U.S. 1 (1911), the state of Virginia admitted in its briefings the legality of the secession of West Virginia. A second constitutional question arises as to whether the Constitution permits states to be carved out of existing states, whether consent is given or not. Article IV, Section 3, Clause 1 of the U.S. Constitution says:
Should the phrase between the first and second semicolons be read as absolutely barring the creation of a state within the jurisdiction of an existing state, or should it be read in conjunction with the following clause (which permits such creation with the consent of the existing state)? If the former interpretation is adopted, then not only West Virginia but the states of Kentucky
, Maine
, and possibly Vermont
were also created unconstitutionally.
Virginia v. West Virginia was also one of the first cases to establish the principle that Congress may give implied consent, and that such consent may be inferred from the context in which action was taken. It was not the first time the Court had so ruled (it had done so in Poole v. Fleeger
, 36 U.S. 185, (1837) and Green v. Biddle
, 21 U.S. 1 (1823)). But the statement in Virginia v. West Virginia is the one most cited by the court in its subsequent rulings in Virginia v. Tennessee
, 148 U.S. 503 (1893); Wharton v. Wise
, 153 U.S. 155 (1894); Arizona v. California
, 292 U.S. 341 (1934); James v. Dravo Contracting Co.
, 302 U.S. 134 (1937); and De Veau v. Braisted
, 363 U.S. 144 (1960).
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
which held that where a governor has discretion in the conduct of the election, the legislature is bound by his action and cannot undo the results based on fraud. The case implicitly ratified the secession of the state of West Virginia
West Virginia
West Virginia is a state in the Appalachian and Southeastern regions of the United States, bordered by Virginia to the southeast, Kentucky to the southwest, Ohio to the northwest, Pennsylvania to the northeast and Maryland to the east...
from the state of Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
, and explicitly ratified that the counties of Berkeley
Berkeley County, West Virginia
Berkeley County is a county located in the Eastern Panhandle region of the U.S. state of West Virginia. As of 2010, the population is 104,169, making it the second-most populous county in West Virginia, behind Kanawha...
and Jefferson
Jefferson County, West Virginia
Jefferson County is a county located in the U.S. state of West Virginia. As of 2010, the population was 53,498. Its county seat is Charles Town...
were part of West Virginia.
Background
At the beginning of the American Civil WarAmerican Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
, Virginia seceded
Secession
Secession is the act of withdrawing from an organization, union, or especially a political entity. Threats of secession also can be a strategy for achieving more limited goals.-Secession theory:...
from the United States in 1861 over slavery. But many of the northwestern counties of Virginia were decidedly pro-union. At a convention duly called by the governor and authorized by the legislature, delegates voted on April 17, 1861, to approve Virginia's secession from the United States. Although the resolution required approval from voters (at an election scheduled for May 23, 1861), Virginia's governor entered into a treaty of alliance with the Confederate States of America
Confederate States of America
The Confederate States of America was a government set up from 1861 to 1865 by 11 Southern slave states of the United States of America that had declared their secession from the U.S...
on April 24, elected delegates to the Confederate Congress on April 29, and formally entered the Confederacy on May 7.
Unionist sentiment was so high in the northwestern counties that civil government began to disintegrate, and the Wheeling Intelligencer
The Intelligencer & Wheeling News Register
The Intelligencer and Wheeling News Register are combined daily newspapers under common ownership in Wheeling, West Virginia owned by Ogden Newspapers. The Intelligencer is published weekday mornings and Saturdays, while the News-Register is published weekday afternoons and Sundays.-References:...
newspaper called for a convention of delegates to meet in the city of Wheeling
Wheeling, West Virginia
Wheeling is a city in Ohio and Marshall counties in the U.S. state of West Virginia; it is the county seat of Ohio County. Wheeling is the principal city of the Wheeling Metropolitan Statistical Area...
to consider secession from the state of Virginia. Delegates duly assembled, and at the First Wheeling Convention
Wheeling Convention
The 1861 Wheeling Convention was a series of two meetings that ultimately repealed the Ordinance of Secession passed by Virginia, thus establishing the Restored government of Virginia, which ultimately authorized the counties that organized the convention to become West Virginia. The convention was...
(also known as the May Convention), held May 13 to 15, the delegates voted to hold off on secession from Virginia until Virginia formally seceded from the United States. Concerned that the irregular nature of the First Wheeling Convention might not democratically represent the will of the people, elections were scheduled for June 4 to formally elect delegates to a second convention, if necessary. Virginians voted to approve secession on May 23. On June 4, elections were held and delegates to a Second Wheeling Convention
Wheeling Convention
The 1861 Wheeling Convention was a series of two meetings that ultimately repealed the Ordinance of Secession passed by Virginia, thus establishing the Restored government of Virginia, which ultimately authorized the counties that organized the convention to become West Virginia. The convention was...
elected. These elections were irregular as well: Some were held under military pressure, some counties sent no delegates, some delegates never appeared, and voter turnout varied significantly. On June 19, the Second Wheeling Convention declared the offices of all government officials who had voted for secession vacant, and reconstituted the executive and legislative branches of the Virginia government from their own ranks. The Second Wheeling Convention adjourned on June 25 with the intent of reconvening on August 6.
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
and its two existing Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
took their old seats in the House
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
, effectively giving Congressional recognition to the Reorganized Government as well.
After reconvening on August 6, the Second Wheeling Convention again debated secession from Virginia. The delegates adopted a resolution authorizing the secession of 39 counties, with the counties of Berkeley, Greenbrier
Greenbrier County, West Virginia
As of the census of 2000, there were 34,453 people, 14,571 households, and 9,922 families residing in the county. The population density was 34 people per square mile . There were 17,644 housing units at an average density of 17 per square mile...
, Hampshire
Hampshire County, West Virginia
Hampshire County is a county located in the U.S. state of West Virginia. As of 2010, the population was 23,964. Its county seat is Romney, West Virginia's oldest town . Hampshire County was created by the Virginia General Assembly on December 13, 1753, from parts of Frederick and Augusta counties ...
, Hardy
Hardy County, West Virginia
As of the census of 2000, there were 12,669 people, 5,204 households, and 3,564 families residing in the county. The population density was 22 people per square mile . There were 7,115 housing units at an average density of 12 per square mile...
, Jefferson, Morgan
Morgan County, West Virginia
Morgan County is a county located in the U.S. state of West Virginia. As of 2010, it's population was 17,541. Its county seat is Berkeley Springs. The county is one of three in Hagerstown-Martinsburg, MD-WV Metropolitan Statistical Area...
, and Pocahontas
Pocahontas County, West Virginia
As of the census of 2000, there were 9,131 people, 835 households, and 527 families residing in the county. The population density was 10 people per square mile . There were 7,594 housing units at an average density of 8 per square mile...
to be added if their voters approved, and authorizing any contiguous counties with these to join the new state if they so voted as well. On October 24, 1861, voters in the 39 counties plus voters in Hampshire and Hardy counties voted to secede from the state of Virginia. The ballot also allowed voters to choose delegates to a constitutional convention, which met from November 26, 1861, to February 18, 1862. The convention chose the name "West Virginia," but then engaged in lengthy and acrimonious debate over whether to extend the state's boundaries to other counties which had not voted to secede. Added to the new state were McDowell
McDowell County, West Virginia
McDowell County is a county in the U.S. state of West Virginia. The land that became McDowell was originally part of Tazewell County, Virginia. As of the 2010 census, the population was 22,113. Its county seat is Welch. McDowell county is the southern-most county in the state, geographically...
, Mercer
Mercer County, West Virginia
-External links:* * * * * * *...
, and Monroe
Monroe County, West Virginia
As of the census of 2000, there were 14,583 people, 5,447 households, and 3,883 families residing in the county. The population density was 31 people per square mile . There were 7,267 housing units at an average density of 15 per square mile...
counties. Berkeley, Frederick
Frederick County, Virginia
Frederick County is a county located in the Commonwealth of Virginia. It is included in the Winchester, Virginia-West Virginia Metropolitan Statistical Area. It was formed in 1743 by the splitting of Orange County. For ten years it was the home of George Washington. As of 2010, the population was...
, Hampshire, Hardy, Jefferson, Morgan, and Pendleton
Pendleton County, West Virginia
As of the census of 2000, there were 8,196 people, 3,350 households, and 2,355 families residing in the county. The population density was 12 people per square mile . There were 5,102 housing units at an average density of 7 per square mile...
counties were again offered the chance to join, which all but Frederick County did. A new constitution for West Virginia was adopted on February 18, 1862, which was approved by voters on April 4.
Governor Pierpont recalled the Reorganized state legislature, which voted on May 13 to approve the secession (and to include Berkeley, Frederick, and Jefferson counties if they approved the new West Virginia constitution as well). After much debate over whether Virginia had truly given its consent to the formation of the new state, the United States Congress adopted a statehood bill on July 14, 1862, which contained the proviso that all blacks
African American
African Americans are citizens or residents of the United States who have at least partial ancestry from any of the native populations of Sub-Saharan Africa and are the direct descendants of enslaved Africans within the boundaries of the present United States...
in the new state under the age of 21 on July 4, 1863, be freed. President Lincoln was unsure of the bill's constitutionality, but pressed by Northern senators he signed the legislation on December 31, 1862. Luckily, the West Virginia constitutional convention had not adjourned sine die
Adjournment sine die
Adjournment sine die means "without assigning a day for a further meeting or hearing". To adjourn an assembly sine die is to adjourn it for an indefinite period...
, and was called back into session on February 12, 1863. The convention amended the state's constitution on February 17 to include the congressionally required slave freedom provision, and adjourned sine die on February 20. The state's voters ratified the slave freedom amendment on March 26, 1863. On April 20, President Lincoln announced that West Virginia would become a state in 60 days.
But Berkeley, Frederick, and Jefferson counties never held votes on secession or the new West Virginia state constitution, as they were under the military control of the Confederacy at the time. On January 31, 1863, the Reorganized legislature of Virginia passed legislation authorizing the Reorganized governor to hold elections in Berkeley County on whether to join West Virginia or not. The Reorganized legislature similarly approved on February 4, 1863, an election for Jefferson County (among others). These elections were held, voters approved secession, and Berkeley and Jefferson Counties were admitted to West Virginia.
However, on December 5, 1865, the Virginia Assembly in Richmond passed legislation repealing all the acts of the Reorganized government regarding secession of the 39 counties and the admission of Berkeley and Jefferson counties to the state of West Virginia.
On March 10, 1866, Congress passed a resolution acknowledging the transfer of the two counties to West Virginia from Virginia.
Virginia sued, arguing that no action had taken place under the act of May 13, 1862, requiring elections, and that the elections which occurred in 1863 were fraudulent and irregular. West Virginia filed a demurrer
Demurrer
A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection...
which alleged that the Supreme Court lacked jurisdiction over the case because it was of a purely political nature.
Majority holding
Associate Justice Samuel Freeman MillerSamuel Freeman Miller
Samuel Freeman Miller was an associate justice of the United States Supreme Court from 1862–1890. He was a physician and lawyer.-Early life and education:...
wrote the decision for the majority, joined by Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Salmon P. Chase
Salmon P. Chase
Salmon Portland Chase was an American politician and jurist who served as U.S. Senator from Ohio and the 23rd Governor of Ohio; as U.S. Treasury Secretary under President Abraham Lincoln; and as the sixth Chief Justice of the United States Supreme Court.Chase was one of the most prominent members...
and Associate Justices Samuel Nelson
Samuel Nelson
Samuel Nelson was an American attorney and an Justice of the Supreme Court of the United States....
, Noah Haynes Swayne
Noah Haynes Swayne
Noah Haynes Swayne was an American jurist and politician. He was the first Republican appointed as a justice to the United States Supreme Court.-Birth and early life:...
, William Strong
William Strong (judge)
William Strong was an American jurist and politician. He was a justice on the Supreme Court of Pennsylvania and an Associate Justice on the Supreme Court of the United States.-Early life:...
, and Joseph P. Bradley.
Justice Miller first disposed of the demurrer. He concluded that the demurrer could not be granted "without reversing the settled course of decision in this court and overturning the principles on which several well-considered cases have been decided." He noted that the court had asserted its jurisdiction in several cases before, including The State of Rhode Island and Providence Plantations v. The Commonwealth of Massachusetts
The State of Rhode Island and Providence Plantations v. The Commonwealth of Massachusetts
The State of Rhode Island and Providence Plantations v. The Commonwealth of Massachusetts is a 1838 Supreme Court of the United States decision....
, 37 U.S. 657 (1838); State of Missouri v. State of Iowa
State of Missouri v. State of Iowa (1849)
State of Missouri v. State of Iowa, 48 U.S. 660 , is a 9-to-0 ruling by the Supreme Court of the United States which held that Sullivan Line of 1816 was accepted boundary between the states of Iowa and Missouri...
, 48 U.S. 660 (1849); Florida v. Georgia
Florida v. Georgia
Florida v. Georgia , is a 1854 United States Supreme Court case invoking the Court's original jurisdiction to determine boundary disputes between states. In this case the boundary dispute was between the State of Florida and the State of Georgia....
, 58 U.S. 478 (1854); and State of Alabama v. State of Georgia
State of Alabama v. State of Georgia
State of Alabama v. State of Georgia, 64 U.S. 505 , is a 9-to-0 ruling by the Supreme Court of the United States which held that the true border between the states of Alabama and Georgia was the average water mark on the western bank of the Chattahoochee River. In coming to its conclusion, the...
, 64 U.S. 505 (1860).
Justice Miller then posed three questions for the Court to answer: :"1. Did the State of Virginia ever give a consent to this proposition which became obligatory on her? 2. Did the Congress give such consent as rendered the agreement valid? 3. If both these are answered affirmatively, it may be necessary to inquire whether the circumstances alleged in this bill, authorized Virginia to withdraw her consent, and justify us in setting aside the contract, and restoring the two counties to that State." Justice Miller then reviewed the various acts taken to reorganize the government of Virginia in 1861, and the various acts which the Reorganized Government and the United States took to create the state of West Virginia and extend its jurisdiction over the counties in question. In answering the first question, Miller wrote, "Now, we have here, on two different occasions, the emphatic legislative proposition of Virginia that these counties might become part of West Virginia; and we have the constitution of West Virginia agreeing to accept them and providing for their place in the new-born State." There was no question, in the mind of the majority, that Virginia had given its consent. Although the elections had been postponed due to a "hostile" environment, the majority concluded that the Reorganized Government of Virginia had acted in "good faith" to carry out its electoral duties in the two counties.
In regard to the second question, Miller pondered the nature of Congressional consent. Congress could not be expected to explicitly give its consent to every single aspect of the proposed state constitution, Miller argued. And clearly Congress had intensively considered the proposed state constitution (which contained provisions for accession of the two counties in question), because Congress seriously considered the slavery question regarding the admission of the new state and required changes in the proposed constitution before statehood could be granted. This debate could only lead the Court to a single conclusion, Miller stated: "It is, therefore, an inference clear and satisfactory that Congress by that statute, intended to consent to the admission of the State with the contingent boundaries provided for in its constitution and in the statute of Virginia, which prayed for its admission on those terms, and that in so doing it necessarily consented to the agreement of those States on that subject. There was then a valid agreement between the two States consented to by Congress, which agreement made the accession of these counties dependent on the result of a popular vote in favor of that proposition."
Miller now considered the third question. The majority held that although the language of the two statutes of January 31, 1863, and February 4, 1863, were different, they had the same legal intent and force. Virginia showed "good faith" in holding the elections, Miller asserted. That the Reorganized Virginia legislature did not require vote totals to be reported to it and delegated the transmission of the vote totals to West Virginia was not at issue, Miller said. It gave the Reorganized Governor discretion as to when and where to hold the votes, under what condition the votes should be held, and to certify the votes. The legislature acted within its power to delegate these duties to the Reorganized Governor, "and his decision
Dissent
Associate Justice David DavisDavid Davis (Supreme Court justice)
David Davis was a United States Senator from Illinois and associate justice of the United States Supreme Court. He also served as Abraham Lincoln's campaign manager at the 1860 Republican National Convention....
wrote a dissent, joined by Associate Justices Nathan Clifford
Nathan Clifford
Nathan Clifford was an American statesman, diplomat and jurist.Clifford was born of old Yankee stock in Rumney, New Hampshire, to farmers, the only son of seven children He attended the public schools of that town, then the Haverhill Academy in New...
and Stephen Johnson Field
Stephen Johnson Field
Stephen Johnson Field was an American jurist. He was an Associate Justice of the United States Supreme Court of the United States Supreme Court from May 20, 1863, to December 1, 1897...
.
Davis concluded that Congress never gave its consent to the transfer of Berkeley and Jefferson counties to West Virginia. By the time Congress did so (on March 10, 1866), the legislature of Virginia had already withdrawn its consent to the transfer of the two counties.
Davis disagreed with the majority's view that Congress had consented to the transfer of the two counties when it debated the proposed West Virginia constitution. There was nothing in the debates to ever suggest that, he wrote. What Congress agreed to was that the two counties should be offered the chance to join West Virginia by the time of the new state's admission to union with the United States. These conditions had not been met by the time of admission, and thus no transfer could be constitutionally made. Congress had not agreed to additional legislative acts of transfer, and thus they could not be made without Virginia's assent (which was now withdrawn).
Assessment
When Virginia v. West Virginia first came to the Supreme Court in 1867, there were only eight Justices on the bench due to the death of Justice James Moore WayneJames Moore Wayne
James Moore Wayne was an Associate Justice of the Supreme Court of the United States and was a United States Representative from Georgia.-Biography:...
on July 5, 1867. The Court would not have nine Justices again until the resignation of Justice Robert Cooper Grier
Robert Cooper Grier
Robert Cooper Grier , was an American jurist who served on the Supreme Court of the United States.-Early life, education, and career:...
on January 31, 1870, and the confirmation of Justices William Strong (February) and Joseph P. Bradley (March) in 1870. During this three-year period, the Supreme Court was divided 4-to-4 as to whether it had jurisdiction over the case. Chief Justice Chase delayed taking up the case until a majority emerged in favor of affirming the Court's original jurisdiction rather than seek a ruling on the issue. The acceptance of original jurisdiction in this matter is now considered one of the most significant jurisdictional cases in the Court's history.
It is noteworthy that former Associate Justice Benjamin Robbins Curtis
Benjamin Robbins Curtis
Benjamin Robbins Curtis was an American attorney and United States Supreme Court Justice.Curtis was the first and only Whig justice of the Supreme Court. He was also the first Supreme Court justice to have a formal legal degree and is the only justice to have resigned from the court over a matter...
argued the case on behalf of Virginia before the Court. He lost.
Many in Congress questioned both the legality of the Reorganized Virginia government and the constitutionality of the creation of West Virginia. Many scholars since have questioned the democratic nature of the Second Wheeling Convention, the legal and moral legitimacy of the Reorganized Government, and the constitutionality of the creation of West Virginia. But most lengthy scholarly treatments of the issue assert the legality of the Reorganized government. In Luther v. Borden
Luther v. Borden
Luther v. Borden, 48 U.S. 1 , was a case in which the Supreme Court of the United States established the political question doctrine in controversies arising under the Guarantee Clause of Article Four of the United States Constitution Luther v. Borden, 48 U.S. 1 (1849), was a case in which the...
, 48 U.S. 1 (1849), the Supreme Court held that only the federal government could determine what constituted a "republican form of government" in a state (as provided for in the Guarantee Clause of Article Four of the United States Constitution
Article Four of the United States Constitution
Article Four of the United States Constitution relates to the states. The article outlines the duties states have to each other, as well as those the federal government has to the states...
). Virginia was not alone in having two governments—one unionist, one rebel—with the union government recognized by the United States. The Supreme Court had held in Luther v. Borden, "Under this article of the Constitution it rests with Congress to decide what government is the established one in a State." As both the President and Congress had recognized the Reorganized Government, this provision was met and the entire process was legal. There were precedents for such action as well. As one legal scholar has noted, Michigan
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
was admitted to the union after irregular elections for three unauthorized constitutional conventions led to a request for statehood that Congress (eventually) granted in 1837. Kansas
Kansas
Kansas is a US state located in the Midwestern United States. It is named after the Kansas River which flows through it, which in turn was named after the Kansa Native American tribe, which inhabited the area. The tribe's name is often said to mean "people of the wind" or "people of the south...
, too, went through a highly irregular statehood process marked by violence, mass meetings masquerading as legislative assemblies, and allegations of vote fraud, but it was also admitted to the union. One widely cited legal analysis concludes that "the process of West Virginia statehood was hyper-legal". Indeed, to deny the legality of the Reorganized Government creates significant problems, two legal scholars have argued: "
Although the U.S. Supreme Court never ruled on the constitutionality of the state's creation, decisions such as those in Virginia v. West Virginia led to a de facto recognition of the state which is now considered unassailable. West Virginia's first constitution explicitly agreed to pay a portion of Virginia's debt in helping build roads, canals, railroads, and other public improvements in the new state. But these debts were never paid, and Virginia sued to recover them. In the case, Virginia v. West Virginia
Virginia v. West Virginia (1911)
Virginia v. West Virginia, 220 U.S. 1 , is a 9-to-0 ruling by the Supreme Court of the United States which held that the state of West Virginia was bound by its constitution to pay one-third of the outstanding debt of the state of Virginia as of January 1, 1861...
, 220 U.S. 1 (1911), the state of Virginia admitted in its briefings the legality of the secession of West Virginia. A second constitutional question arises as to whether the Constitution permits states to be carved out of existing states, whether consent is given or not. Article IV, Section 3, Clause 1 of the U.S. Constitution says:
- 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.
Should the phrase between the first and second semicolons be read as absolutely barring the creation of a state within the jurisdiction of an existing state, or should it be read in conjunction with the following clause (which permits such creation with the consent of the existing state)? If the former interpretation is adopted, then not only West Virginia but the states of Kentucky
Kentucky
The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...
, Maine
Maine
Maine is a state in the New England region of the northeastern United States, bordered by the Atlantic Ocean to the east and south, New Hampshire to the west, and the Canadian provinces of Quebec to the northwest and New Brunswick to the northeast. Maine is both the northernmost and easternmost...
, and possibly Vermont
Vermont
Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...
were also created unconstitutionally.
Virginia v. West Virginia was also one of the first cases to establish the principle that Congress may give implied consent, and that such consent may be inferred from the context in which action was taken. It was not the first time the Court had so ruled (it had done so in Poole v. Fleeger
Poole v. Fleeger
Poole v. Fleeger, 36 U.S. 185 is a 7-to-0 ruling by the Supreme Court of the United States which held that the states of Kentucky and Tennessee had properly entered into an agreement establishing a mutual border between the two states. The plaintiffs in the case were granted title to property...
, 36 U.S. 185, (1837) and Green v. Biddle
Green v. Biddle
Green v. Biddle, 21 U.S. 1 is a 6-to-1 ruling by the Supreme Court of the United States that held that the state of Virginia had properly entered into a compact with the United States federal government under Clause One of Article Four of the United States Constitution...
, 21 U.S. 1 (1823)). But the statement in Virginia v. West Virginia is the one most cited by the court in its subsequent rulings in Virginia v. Tennessee
Virginia v. Tennessee
Virginia v. Tennessee, 148 U.S. 503 , was a decision of the United States Supreme Court, which had two questions: What is the correct boundary between the two states, and if the boundary was inaccurately set, can the state ask the court to change it? Does an agreement setting the boundary...
, 148 U.S. 503 (1893); Wharton v. Wise
Wharton v. Wise
Wharton v. Wise, 153 U.S. 155 is a 9-to-0 ruling by the Supreme Court of the United States which denied a citizen of the state of Maryland a writ of habeas corpus...
, 153 U.S. 155 (1894); Arizona v. California
Arizona v. California
Arizona v. California is a set of United States Supreme Court cases, all dealing with water distribution from the Colorado River.When a dispute arises between two states, the case is filed for original jurisdiction with the United States Supreme Court. This is one of the very limited circumstances...
, 292 U.S. 341 (1934); James v. Dravo Contracting Co.
James v. Dravo Contracting Co.
James v. Dravo Contracting Co., 302 U.S. 134 is a 5-to-4 ruling by the Supreme Court of the United States that a state's corporate income tax did not violate the Supremacy Clause of the United States Constitution by taxing the United States federal government. It was the first time the Court had...
, 302 U.S. 134 (1937); and De Veau v. Braisted
De Veau v. Braisted
De Veau v. Braisted, 363 U.S. 144 is a 5-to-3 ruling by the Supreme Court of the United States that an interstate compact restricting convicted felons from holding union office is not preempted by the National Labor Relations Act or the Labor Management Reporting and Disclosure Act, does not...
, 363 U.S. 144 (1960).