"Daniel Webster warned Virginia in the plainest and most unmistakable terms that in the very day in which she should make this attempt, her western counties would arise in their strength and throw off her authority and form an independent state," stated the Wheeling Daily Intelligencer.
Accordingly, on the advent of the Civil War, the Lincoln administration was strategically aware of not only the longstanding political strife within western Virginia but also the constitutional path to West Virginia statehood.
As Lincoln stated in his first inaugural address, secession from the United States was illegal; therefore, when Virginia seceded all state offices were declared vacant and the "restored government" of Virginia in Wheeling was then recognized by both the president and the Congress who seated two senators and three representatives on July 13, 1861.
Virginia would now be represented in both the United States of America and the Confederate States of America, albeit with the former compliant with the U.S. Constitution.
As such, the restored government in Wheeling proceeded constitutionally through convention and statewide referendum on the formation of the new State of Kanawha, later modified to West Virginia, then subsequently obtained a consent from their own "restored legislature" of Virginia for their act.
While legal arguments rightfully claim that the Commonwealth of Virginia didn't provide legal approval for the partitioning of western Virginia, and the Wheeling lawmakers were engaged in duplicitous legal maneuvering, the fact remains that West Virginia's founders, President Lincoln and Congress fulfilled their constitutional requirements.
Further, as Virginia seceded, its legislature officially revoked Virginia's previous ratification of the U.S. Constitution and said Virginia no longer was governed by the national document. Therefore, Virginia couldn't claim that its rights were trampled because it didn't approve of West Virginia's breakaway.
Undeterred, immediately after the Civil War in 1865, the Commonwealth of Virginia passed an act repealing the Restored Government's consent for West Virginia statehood, seeking reunification. It also challenged the transfer of Berkeley and Jefferson counties on grounds that Congress had not approved the transfer (which followed after the fact in 1866).
That resulted in Virginia vs. West Virginia (1871), whereby the U.S. Supreme Court ruled 6-3 in favor of West Virginia and her jurisdiction over Berkeley and Jefferson counties and provided de facto statehood recognition with the decision.
But it would not be until another U.S. Supreme Court decision, Virginia vs. West Virginia (1911), that disputes over antebellum public debt resulted in Virginia formally acknowledging the legality of the Mountain State's secession from the Commonwealth of Virginia for payment of one-third of the debt.
That decision presumably subordinated the last remaining issue -- that pesky second semicolon in Article IV, Section 3, of the U.S. Constitution governing conditions for admitting new states -- the lynchpin of a 100-page California Law Review article in 2002 titled, "Is West Virginia Unconstitutional?"
Swint is a Charleston commercial property broker and former Democratic nominee for Congress.