State Constitutions: West Virginia

Happy birthday, West Virginia!

It was 150 years ago today that West Virginia became the 35th of the United States of America’s 50 states.

And the only state ever admitted under such conditions — born in war, torn from secessionist Virginia in a time of turmoil, created under a constitutional cloud.

And even its own first constitution was a subject of controversy.

The counties that became West Virginia had never had a particularly good relationship with their sister counties in eastern Virginia. The freewheeling largely Scots-Irish population of the western counties tended to disagree with the planters of the eastern counties over just about everything.

The westerners often didn’t own land, so they didn’t like the fact that voting rights were limited to white males who owned 25 acres or more. The western counties were huge compared to eastern counties, and representation in the House of Delegates was based on county lines: two delegates per county.

And taxation was a huge issue. The 1850 Virginia Constitution taxed all property except slaves at actual value — and slaves were valued lower than their actual worth and so taxed at lower rates. That greatly favored the eastern slaveholders as opposed to the westerners.1

The final breaking point, of course, was the Civil War. And the winds of war that blew the counties of western Virginia into a newly-created state reached gale force on 17 April 1861 when Virginia seceded from the Union.2

Two-thirds of western Virginia’s delegates voted against the Ordinance of Secession, and on 13 May, 430 representatives of 25 western counties met in Wheeling at what was called the First Wheeling Convention in opposition to secession. A Second Wheeling Convention met in June, with 93 members from 32 counties present. On 19 June, it adopted “An Ordinance for the Reorganization of the State Government,” calling for a temporary government to form with the ultimate intent of forming a new State and seeking its admission to the Union. Further meetings in July and August led to the adoption of an ordinance for the State of Kanawha; the boundaries and name were changed thereafter. The ordinance called for popular elections in October.3

At that election on 24 October 1861, turnout was light; only about a third of the voters cast ballots. But those that voted did so overwhelmingly in favor of the new state: the vote was 18,408 to 781. And they elected delegates to a constitutional convention to set up the new State.4

And that just started West Virginia’s constitutional problems. The issue that held up statehood was slavery. The Constitutional Convention that met in Wheeling in November 1861 eventually settled on language that merely provided that no slaves could be brought into the new state.5 That wasn’t good enough for the United States Senate.

The Senate had to grapple first with the problem of the provision in the U.S. Constitution that “no new states shall be formed or erected within the jurisdiction of any other state … without the consent of the legislatures of the states concerned as well as of the Congress.”6 Was the so-called Restored, or Reorganized, Government of Virginia — created at the Wheeling conventions — the legal government of Virginia?

Ultimately, the Senate decided it was the legal government and so could consent to the creation of the new state. (That issue, by the way, eventually went to the United States Supreme Court in the case Virginia v. West Virginia in 1871 — needless to say, West Virginia won.7) But it wouldn’t agree to the slavery provision of the proposed West Virginia constitution.

A compromise provision in the act accepting West Virginia into the union required a change in the constitution — to provide for immediate freedom for children of slaves born after 4 July 1863 and gradual freedom for others: for children under age 10 on 4 July 1863, at age 21; and for those between ages 10 and 21, at age 25.8

West Virginians accepted the change and approved the new constitution in March of 1863. President Lincoln issued his proclamation admitting West Virginia on 20 April 1863, to “take effect and be in force, from and after sixty days from the date hereof”9 and West Virginia officially became a state 150 years ago today.10

That 1863 West Virginia Constitution was the first of only two West Virginia has ever had. It provided for religious freedom,11, for voting rights for all white males,12, for representation in the legislature based on total white population,13 and for the creation of free public schools.14

But that Constitution was doomed by legislation adopted after the Civil War imposing loyalty tests for voting, holding public office and access to the courts. Former Confederates and Confederate sympathizers were effectively barred from public life. By 1871, voters had amended the 1863 constitution to invalidate the loyalty tests and had called for a new constitutional convention which met in 1872.15

As described by West Virginia historian Robert M. Bastress:

Despite the swagger, the delegates did not really change all that much. They scrapped the township system. The new constitution also had express bans on the use of political or religious test oaths and on boards or courts of voter registration. (The latter ban was effectively reversed by a 1902 amendment.) It continued to require equal apportionment, equal taxation, and public education.16

Since then, Bastress added:

West Virginians have passed more than 50 substantive amendments to the 1872 constitution. The pace of amendments has accelerated over time, there being only three in the 19th century. There have been periodic pushes for a new constitution. In 1964, the legislature enacted a law that authorized the election of delegates to a constitutional convention. The movement stalled, however, after the state Supreme Court invalidated the law because it improperly apportioned delegate selection and after major amendments in the late ’60s and early ’70s significantly modernized state government.17

The text of the original 1863 Constitution is online at the Internet Archive and at the West Virginia Archives & History website, and today’s Constitution as amended is online at the website for the West Virginia Legislature.


 
SOURCES

  1. See generally “West Virginia Statehood,” West Virginia Archives & History (http://www.wvculture.org : accessed 20 Jun 2013).
  2. See “Virginia Ordinance of Secession: April 17, 1861,” A State of Convenience: The Creation of West Virginia, West Virginia Archives & History (http://www.wvculture.org : accessed 20 Jun 2013).
  3. “How West Virginia Became a Member of the Federal Union,” Southern Historical Magazine, 2 (July 1892): 14-21.
  4. Statehood Referendum,” A State of Convenience: The Creation of West Virginia.
  5. West Virginia Statehood.”
  6. United States Constitution, Article IV, section 3.
  7. Virginia v. West Virginia, 78 U.S. 39 (1871).
  8. “An Act for the Admission of the State of ‘West Virginia’ into the Union, and for other Purposes,” 12 Stat. 633, 634 (31 Dec 1862); digital images, “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875,” Library of Congress, American Memory (http://memory.loc.gov/ammem/index.html : accessed 20 Jun 2013).
  9. Lincoln’s Statehood Proclamation;” digital image, West Virginia Archives & History (http://www.wvculture.org : accessed 20 Jun 2013).
  10. See generally “Road to West Virginia Statehood,” West Virginia Sesquicentennial Commission (http://www.birthday.wv.gov : accessed 20 Jun 2013).
  11. Article II, § 9, West Virginia Constitution of 1863; digital images, Internet Archive (http://www.archive.org : accessed 20 Jun 2013).
  12. Ibid., Article III, § 1.
  13. Ibid., Article I, § 7, and Article IV, § 9.
  14. Ibid., Article X, § 2.
  15. See Robert M. Bastress, “The Constitution of West Virginia,” The West Virginia Encyclopedia (http://www.wvencyclopedia.org : accessed 20 Jun 2013).
  16. Ibid.
  17. Ibid.
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2 Responses to State Constitutions: West Virginia

  1. Concetta says:

    Thanks for the great article on this, Judy! My family has been in the area of what would become Kanawha County, West Virginia since 1810. It was very fun to read this and try to imagine such an exciting time in the state’s history.

  2. Thanks. This is fascinating and supplements what I have been reading in Foner’s “Reconstruction” about state government upheavals in the aftermath of the Civil War–reactions against the planters, loyalty oaths, and what “free” could possibly mean for blacks in political terms. Problems enough to turn one region against another.

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