California Law Review VOL. 90 MARCH 2002 No. 2 Copyright © 2002 by California Law Review, Inc. Is West Virginia Unconstitutional? Vasan Kesavant & Michael Stokes Paulsenj TABLE OF CONTENTS I. Formalism and State Formation: The Story of West Virginia .......... 297 A. Nothing Secedes Like Secession ................................................ 297 B. Lincoln, Formalism, and the Civil War ...................................... 301 C. West Virginia and Formalism: Lincoln's Constitutional Theory A pplied ........................................................................... 313 D. Playing West Virginia Forward: Rehearsal for Reconstruction ............................................................................325 E. Reconstructing West Virginia ..................................................... 330 II. Textualism and State Creation: The Meaning of Article IV, Section 3 ............................................................................................332 A. The Textual Argument ................................................................ 334 1. The Problem of Punctuation ................................................. 334 2. The Problem of Ambiguous Modification ........................... 352 3. Conclusions .......................................................................... 362 B. The Historical Argument ............................................................ 363 1. The Public Writings of the Federalists and Anti-Federalists .................................................................... 364 Copyright © 2002 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. t Vice President, Francisco Partners. J.D., Yale Law School, 2001. t Briggs & Morgan Professor of Law, University of Minnesota Law School. J.D., Yale Law School, 1985. The authors would like to thank our common friend, Professor Akhil Amar of Yale Law School, for arranging this marriage of coauthors-who-have-never-met-personally. Mr. Kesavan would also like to thank Kumar Kesavan and Jennifer Koester. Professor Paulsen would also like to thank Professor Dan Farber and students in their "Lincoln and the Constitution" seminars at the University of Minnesota Law School, 1997 and 2000, especially Alison Frye (Class of 1998) for her research into the history of West Virginia's creation as a state. 292 CALIFORNIA LA WREVIEW [Vol. 90:291 2. The Recorded Debates of the Several State Ratifying Conventions .......................................................................... 368 3. The Early Precedents ............................................................ 371 a. Verm ont ......................................................................... 371 b. Kentucky ........................................................................ 375 c. Tennessee ....................................................................... 378 4. Conclusions .......................................................................... 380 C. The Argum ent from Secret Drafting History .............................. 383 1. The W ork of the Comm ittee of Detail .................................. 384 2. The Recorded Debate on Article IV, Section 3 .................... 385 3. The Work of the Comm ittee of Style ................................... 390 4. A Case of Stylistic Subterfuge? ............................................ 392 D. Conclusions ................................................................................. 395 III. W hy W ould Anybody Care? ............................................................. 395 20021 IS WEST VIRGINIA UNCONSTITUTIONAL? Is West Virginia Unconstitutional? Vasan Kesavan & Michael Stokes Paulsen When the Commonwealth of Virginia announcedit was secedingfrom the Union, the northwestern corner of Virginiaformed a rump government- in-exile, declared itself the lawful government of Virginia, and gave "Virginia's" consent to the creation of a new State of West Virginia con- sisting of essentially the same northwestern corner of old Virginia. Congress and the Lincoln administration recognized the northwestern rump as the legitimate government of Virginia, and voted to admit West Virginia as a State. Could they do that? This article takes on the odd but amazingly com- plicated (and occasionally interesting) constitutional question of whether West Virginia is legitimately a State of the Union or is instead an illegal, breakaway province of Virginia. While scarcely a burning legal issue in the twenty-first century, the question of West Virginia's constitutionality turns out to be more than ofjust quaint historicalinterest, but also to say a great deal about textualism andformalism as legitimate modes of constitu- tional interpretationtoday. 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. U.S. Constitution, Article IV, Section 3, Clause 1 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 CALIFORNIA LA WREVIEW [Vol. 90:291 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 compli- cated 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 po- tentially 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 punctua- tion) 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. Part I addresses the question of formalism: Did the Wheeling gov- ernment's let's-give-consent-to-ourselves maneuver actually satisfy the requirements of Article IV, Section 3 for the admission into the Union of new breakaway "States"? Does formal compliance with the Constitution depend (at least sometimes) only on matters of form, ignoring underlying reality? The answers to these questions, as they concern the (alleged) State of West Virginia, turn out to tell us much about the constitutional validity of Reconstruction generally and, indeed, about the legal fictions underlying the Lincoln and Johnson administrations' prosecution of the Civil War and promulgation of Reconstruction. They also shed light on the question of whether the adoption of the Thirteenth and Fourteenth Amendments com- plied with the formal requirements of the Constitution, given the extrava- gant, and closely related, legal fictions used to justify the adoption of these provisions by a (rump?) "Congress" and (puppet?) "State governments"--a question that has generated considerable constitutional debate of late, mostly because it serves as the linchpin of Yale Law School Professor Bruce Ackerman's much-abused theory of extratextual constitutional amendment.2 1. U.S. CONST. art. IV, § 3, cl.1. 2. See generally BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991) [hereinafter ACKERMAN, FOUNDATIONS]; BRUCE ACKERMAN, 2 WE THE PEOPLE: TRANSFORMATIONS (1998) [hereinafter ACKERMAN, TRANSFORMATIONS]; Bruce Ackerman, A Generation of Betrayal?, 65 FORDHAM L. REv. 1519 (1997); Bruce Ackerman, Revolution on a Human Scale, 108 YALE L.J. 2279 (1999); Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE LJ. 1013 (1984). 2002) IS WEST VIRGINIA UNCONSTITUTIONAL? Part II addresses the question of textualism: Even assuming that Wheeling-consenting-with-Wheeling would satisfy Article IV, Section 3's consent requirement, is it clear that the text of the Constitution permits creation of new States out of existing States at all, irrespective of any- body's "consent"? A careful look at Article IV, Section 3 reveals a subtle ambiguity: A semicolon, rather than a comma, separates the "Junction of two or more States, or Parts of States" clause-which contains the consent requirements-from the prohibition of new States being "formed or erected within the Jurisdiction of any other State."3