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72 West Virginia’s Civil War–Era Constitution C h a p t e r 3 The Constitutional Revolution The act of creating West Virginia was a constitutional process that had to pass muster with all three branches of the U.S. government within the meaning of the Constitution of the United States of America. Western Virginia state makers displayed scrupulous regard in following all appropriate procedures in undertaking their unprecedented acts. Much controversy over the issue of constitutionality of the West Virginia movement arose then and later, but the outcome of the Civil War actually and finally settled the result. In the end, determination of governmental legitimacy is what civil wars are about after politics fail. The victorious governmental entity always renders the final constitutional verdict. Traitorous Confederates found it difficult to accept the final outcome, and some still do.1 This study does not examine the constitutional issue of West Virginia statehood per se. It concentrates instead on the nature of the constitutional revolution that West Virginians created for themselves in their first constitutional convention. It especially focuses on the fissure with past Virginia constitutional experience as well as the continuities and adaptations of Virginia precedent. The change was a revolutionary reflection that fractured in very substantial ways the Virginia constitutional past and reflected the deepest, decades-long political estrangement between the east and the Trans-Allegheny. When some Virginia delegates departed the Virginia Convention after the adoption of the ordinance of secession on 17 April 1861, several formed the leadership for the rending of the commonwealth. Some were more radical in the movement than others. Of the several mass meetings that protested Virginia’s actions, the Clarksburg Convention on 22 April 1861 was the most important. After hearing the primary speaker, Virginia Convention delegate John Snyder Carlile, it adopted a series of resolutions, one of which called for Northwestern Virginia counties to send no fewer than five of their most able men to meet in Wheeling on 13 May. The First Wheeling Convention, or the May Convention, met for four days when 72 The Constitutional Revolution 73 it debated what an appropriate response to Virginia’s actions should be. The more extreme element led by Carlile advocated proclaiming immediately a new state, but cooler heads prevailed. Virginia’s secession, although practically achieved by her military acts, would not be politically consummated until the referendum on the ordinance of secession on 23 May 1861. Besides, separatist western Virginians had to figure out how to deal constitutionally with the clause of the Constitution of the United States (Article 4, § 3) that forbade territorial portions of existing states from becoming parts of new states without the consent of the existing state legislature and the U.S. Congress. They would rise to the constitutional occasion. For the moment, however, delegates endeavored to organize to work against adoption of the secession ordinance and to arrange an election of delegates to another Wheeling convention on 11 June. The Second Wheeling Convention, first session, sat from 11 to 25 June. Among its many acts, which transpired during and after important military activities in western Virginia territory, were the issuance of a declaration of independence from the Commonwealth of Virginia and the reorganization of the commonwealth on a loyal basis. The Reorganized Assembly of the Restored Government of Virginia convened in Wheeling, 1–26 July 1861, and began an existence that endured until after the war’s end. It filled all national legislative seats as Rebel Virginia representatives departed the halls while securing the recognition of legitimacy from the Lincoln administration and the U.S. Congress. Eventually, as the recognized government of Virginia, it granted permission to West Virginia to form a state out of a portion of its territory. The Second Wheeling Convention, adjourned session, reconvened on 6 August before adjourning sine die on 21 August. Its major act was to provide for the dismemberment of Virginia into a new proposed state to be called Kanawha. It submitted a dismemberment ordinance to the voters for their adoption or rejection on 24 October. At the same time, voters were to elect delegates to a constitutional convention for the proposed state if the ordinance were adopted. One obvious characteristic of the delegates in the First Constitutional Convention was that, although most were natives of Virginia (forty-six of sixty-one), almost all were new men in the politics of western Virginia. Few had enjoyed great success in the antebellum context of western Virginia political affairs. Several...

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