Impeachment proceedings may have dominated the headlines so far this week, but the nation’s capital isn’t the only place where rarely used portions of the Constitution are getting new attention. Over 80 miles away, in Martinsburg, West Virginia, Governor Jim Justice and Liberty University president Jerry Falwell Jr. made an unusual pitch to the residents of border counties in Virginia: Leave the Old Dominion and join up with the Mountaineers.*
“If you’re not truly happy where you are, we stand with open arms to take you from Virginia or anywhere where you may be,” Justice said in a press conference on Tuesday. “We stand strongly behind the Second Amendment, and we stand strongly for the unborn.” Border disputes are nothing new, of course. North Carolina and South Carolina negotiated an end to a long-running debate over thousands of acres as recently as 2014. But while there’s occasional talk about handing over most of D.C. to Maryland or carving up California, the states haven’t redistributed large, populated swaths of territory among themselves in living memory.
I’ll give the two men credit for thinking big. The problem is that they aren’t thinking big enough. Falwell reportedly envisions that Virginia’s border counties could fill out petitions to join West Virginia and then submit them to the Richmond legislature for approval. (That might not cover Liberty, which is in Lynchburg, deep in Virginia’s interior.) It’s exceedingly doubtful that such a plan would work, of course. If it did come to pass, however, the legal challenges that would ensue might give the courts and the country a chance to repair the Civil War’s last remaining constitutional divide and finally reunify the Virginias.
In a statement posted on Twitter, Falwell gave the most comprehensive reason for the proposal. He largely blames Virginia Democrats and their policy choices. “Democrat leaders in Richmond, through their elitism and radicalism, have left a nearly unrecognizable state in their wake,” he explained. “Despite a spate of scandals over the past two years, the Democrats control every statewide elected office throughout the Commonwealth of Virginia, as well as both chambers of the State Legislature—and they are using their power to strip away the God-given rights held by every person in the state, despite their due protections under the U.S. Constitution.”
What he elides is that Virginia Democrats didn’t seize control of the state government by magic but because a majority of voters in the state wanted it that way. For Falwell, democracy is part of the problem. Virginia’s changing electorate has transformed it from a reddish-purple state into a solid blue one over the past two decades. Now he sees radical solutions as the only viable path forward. “The threat from the radical left is real, and it’s spreading across the country and tearing our national family apart at the seams, but we have a rare opportunity to make history in our time by pushing back against tyranny in Washington and in Richmond,” he warned.
Unfortunately for Falwell, that “tyranny” also makes his proposal virtually impossible. The Constitution forbids the creation of new states or the transfer of one state’s land to another without each state’s consent, as well as the approval of Congress. Since Democrats currently control the House and the entire Virginia state government, that consent is unlikely to be forthcoming any time soon.
But Falwell’s concerns aren’t limited to tyranny and democracy. He also placed Liberty University’s revenue streams among the top reasons for what he calls “Vexit.” In last month’s budget proposal, Virginia Governor Ralph Northam announced a list of changes he would seek to Virginia’s in-state tuition program. “For those at private institutions, we’re raising the annual amount of our Tuition Assistance Grants to $4,000 per student,” he told state lawmakers in December. “We will focus those grants on students attending brick-and-mortar classes.”
The brick-and-mortar provision would directly affect Liberty’s most lucrative source of funding. Last week, the university complained that Northam’s proposed changes would bar those grants from being used to pay for online college courses. Liberty said in a statement that the measures would affect more than 2,000 of its online students each year. Falwell and other university officials insisted they would be able to cover the grants gap through private funds, claiming that they were worried about smaller private schools in the state that might not be able to do the same.
Online courses are a model Falwell credits with lifting Liberty out of the financial woes it faced in the 1990s and early 2000s. In a 2018 story, ProPublica’s Alec MacGillis wrote that these courses provided the university with the bulk of its revenue, even though there are doubts about the program’s relative level of quality. Thanks to its nonprofit status, Liberty survived the Obama administration’s crackdown on for-profit online schools. The university’s evangelical Christian roots also helped it become a place of pilgrimage for the religious right and transformed Falwell into an influential national figure. He is a close political ally and adviser of President Donald Trump, even to the point of asserting last year that there was nothing Trump could do to lose his support.
The call to carve up Virginia is mostly a stunt, and a silly one at that. State borders are not designed to be rejiggered because of transitory political problems. Political tides may yet change again, leaving Falwell wanting to yank his relocated Liberty out of West Virginia at some point in the future. But the Falwell-Justice plan, whatever its faults, may offer Americans the chance to reverse an unconstitutional act committed against the Commonwealth of Virginia in the mid-nineteenth century: the creation of West Virginia itself.
After the Civil War broke out, Virginia’s leaders held a convention, in April 1861, to putatively withdraw their state from the United States. The government in Richmond joined the growing rebellion in the South a month later. Virginia’s secession drew intense opposition in the state’s northwestern counties, where many residents remained loyal to the Union. Local leaders gathered on May 13, 1861, in Wheeling, to elect a separate state legislature and governor. Because the lawful civil government in Virginia had otherwise collapsed, Lincoln formally recognized the provisional government, and Congress welcomed its senators and representatives.
In 1863, the Wheeling legislature called a convention to seek admission into the Union as a new state of West Virginia. Congress approved a bill for their entry after considerable debate about its constitutionality and sent it to Lincoln for approval and implementation. According to a 2002 law review article by Vasan Kesavan and Michael Stokes Paulsen, Lincoln then asked his Cabinet for their advice and found them sharply divided. Secretary of State William Seward and Secretary of War Edwin Stanton saw no issues with the bill. Postmaster General Montgomery Blair opined that it would be “unjust to the loyal people” elsewhere in Virginia “to permit the dismemberment of their state without their consent.”
Among the most forceful opponents was Attorney General Edward Bates, who thought it both illegal and improper. Under the Constitution’s clear language, he wrote in a formal opinion, creating one state out of an existing state’s territory requires the consent of “the legislatures of the states concerned” and of Congress. “Now, it is said that the legislature of Virginia, (old Virginia,) has consented; but it is not pretended that the legislature of West Virginia has consented, nor that there is, in fact, any such legislature to give consent,” he noted. The provisional government could not have its cake and carve a new state out of that cake as well.
Bates argued that Virginia’s “restored” government was lawful only because the alternative was anarchy. “It is a provisional government, proper and necessary for the legitimate object for which it was made and recognized,” he wrote. “That object was not to divide and destroy the state, but to rehabilitate and restore it.” The Constitution envisioned, Bates explained, that consent would come from a genuine state legislature—“a legislature representing and governing the whole, and therefore honestly and lawfully speaking for the whole in a matter which concerns the fundamental conditions of the state, and its organic law.” However sufficient the Wheeling government might be for wartime representation, it could not legitimately sign both sides of a contract. Lincoln broke the tie in West Virginia’s favor. He memorialized his opinion in writing that Kesavan and Paulsen hailed as a “classic of clear thinking and clear presentation.”
I agree on the latter point. Lincoln dispensed with concerns about Virginia’s unrepresented residents by comparing them to nonvoters, even though many of them had no choice. “It is not the qualified voters, but the qualified voters, who choose to vote, that constitute the political power of the state,” Lincoln explained. He also brushed aside Bates’s reading of the Constitution’s requirement that consent was needed from “the legislatures of the states concerned” to mean that both Virginia and West Virginia had to approve. The plural form, he concluded, only applied if two existing states are involved, not a state and a state-to-be. In Lincoln’s mind, Kesavan and Paulsen wrote, secession from the Union was wrong, and seceding from a seceding state cured the error. Bates may have lacked Lincoln’s eloquence, but he correctly realized that West Virginia statehood deepened the constitutional break instead of repairing it.
The Supreme Court has never definitively ruled on whether West Virginia’s existence is constitutional. The justices heard two disputes between the states in the decades after the war, one in 1870 and the other in 1911. Even though the latter case revolved around whether West Virginia owed Virginia for a portion of the state’s prewar debts, Virginia did not raise the argument before the court. As a result, the justices took West Virginia’s constitutionality as a given, perhaps unaware of the extent of the disputes that led to its creation.
Would it be too much to hope that the Supreme Court might one day have a chance to consider the matter and rule appropriately? It certainly seems more reasonable than embracing secession because you might lose some online tuition funds. After all, the high court has spent recent years revisiting more than a few major decisions, and the court’s conservative majority has signaled it will revisit many more to come. It may be too much to hope that it would overturn West Virginia’s statehood. But it would be remarkable if an attempt to yank some counties out of Virginia instead brought about the state’s long-overdue reunification.
* This piece originally stated that Falwell and Justice met in Charleston, West Virginia.