An Ordinance To Vacate That Portion Of South Lincoln: Fill & Download for Free

Here's a somewhat longer answer - you decide.By “legal” I assume you mean constitutional. There many things done today under color of law and which are therefore “legal” but which do not follow the spirit, or sometimes even the letter of the Constitution.Article 4, Section 3, Clause 1 of the U.S. Constitution says: “no new States 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.”West Virginia was erected completely within the boundaries of Virginia at the time, so to comply with the U.S. Constitution there had to be consent of the legislature of the State of Virginia as well as that of Congress. Was there?Before I answer that, another Constitution should be consulted, that of Virginia.The Virginia Declaration of Rights, which forms Article 1 of the Virginia Constitution, states in Section 14 that: “…the people have a right to uniform government, … therefore, … no government separate from, or independent of the government of Virginia, ought to be erected or established within the limits thereof.” Keep this provision in mind as we proceed.The Virginia Declaration of Rights also states in Section 2 that “all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.” This statement seems fairly innocuous but is actually a powerful expression that few today really understand. Governments have no legitimate power except what they receive as a delegation of power from the people (in the Declaration of Independence Jefferson called them “just” powers). And the people cannot delegate what they themselves do not possess. Unfortunately, this principle is routinely ignored as governments assume powers that the people themselves cannot possibly possess. For example, I possess no natural power (or right) to order my neighbor to limit his fence to no higher than 4 feet (if you feel I have that power, please explain its origin), yet apparently my county government believes I have that power, and further that I have delegated that power to the Board of Supervisors, because it certainly has enacted zoning “laws” to that effect.To be sure, once governments are allowed to assemble armies and police forces, from that point on they can create whatever power they want and enforce it with the barrels of guns, but their legitimate power is still constrained to whatever portion originated with the people. Remember this point. But I digress…Let’s jump in the Way-Back Machine to the year 1860. Rising tensions between the manufacturing North and the agrarian South, exacerbated by the issues of slavery, tariffs, nullification and state’s rights reach a breaking point on December 20th, 1860 when South Carolina secedes from the Union. The Virginia General Assembly calls for a convention, to meet in Richmond on February 13, 1861, to consider the question of whether Virginia should do likewise. When February rolls around, six additional southern states have seceded. The Virginia Convention convenes.On April 12th, the Union fort at Sumter, South Carolina is attacked and surrenders to the South the next day. Two days later, President Lincoln issues a call for 75,000 Union troops, including three regiments of 2,340 men from Virginia. The call for troops proves too much for the Virginia convention delegates. Although previous resolutions to secede had been defeated, on April 17, 1861, the convention passes an “Ordinance of Secession” by an 88-55 vote. Virginia voters approve the ordinance by a wide margin and the convention formally ratifies the Constitution of the Confederate States of America on June 19, 1861. Virginia is out of the Union.Or are they?Over the previous 40-50 years the western half of Virginia, including what is today the State of West Virginia, experienced a flood of new settlers. Attracted by cheap plentiful land, these hardy souls set up much smaller farms than those in the east -- farms manageable without resorting to slave labor. Calls for general emancipation and more equitable representation in Virginia’s government are increasingly heard from the west. Despite constitutional conventions in 1829 and 1850 to address the problem, the western counties still feels under-represented, and in April 1861 they take umbrage at the action of Virginia’s secessionist government (the servants are no longer “amenable” to at least these people). On May 11, and again on June 11, 1861, western delegates convene in the city of Wheeling where they set up a separate government, calling themselves the “Restored Government of Virginia;” and they elect Francis H. Pierpont as their Governor. The “Restored Government” is immediately recognized by the U.S. Congress. The “Restored Government” quickly appoints two Senators, elects three Representatives, and sends them to Washington where they are welcomed with open arms. This action would seem in direct violation of Virginia’s Declaration of Rights, so how was it justified? The “Restored Government” merely announced that the secessionist government officials had vacated their offices, which the “restorers” gladly “filled.” Viola, constitutional violation fixed! A new government was not being established, the old one was being restored.OK, now we have two Virginia governments in existence, one meeting in Richmond and considering itself part of the Confederacy and one meeting in Wheeling considering itself part of the Union. Each claims the entirety of the land mass of Virginia as its own. But now the story gets even more bizarre.The “Restored Government,” acting in accordance with Article IV, Section 3 of the Union. Constitution, passed a resolution allowing the counties of northwest Virginia to split off and form their own state called West Virginia. But before West Virginia is admitted to the Union as a distinct state (in 1863) we actually have three separate governments operating within the confines of the state of Virginia: one part of the confederacy, one part of the Union and one hopeful of becoming a separate state. The “Restored Government” then moved its operations to Alexandria until the war concluded in 1865. Once there they even approved a new Virginia Constitution. Since this constitution was enacted under wartime conditions and the “Restored Government” stood on rather shaky ground to begin with, this 1864 Constitution is not recognized today as part of the constitutional history of Virginia.Remember the principle, codified in the Virginia Constitution that all [political] power is … derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them? Here’s another principle to consider: when “the people” delegate their sovereign power to a government, is that a one-way trip, is the power forever surrendered? No, no, a thousand times no! The 1788 Virginia Convention ratifying the U.S. Constitution made this crystal clear by writing: “WE the Delegates of the people of Virginia…, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.” Political power delegated to a government can clearly be resumed or revoked; the mechanism for doing so is a bit less clear.In 1861, how much political power did the “Restored Government of Virginia” actually enjoy? That’s certainly debatable; same for the government of West Virginia, or for the Richmond government for that matter. But each certainly possessed some legitimate political power, derived from that portion of the people who supported each government.After the war concluded in 1865, the Secessionist Government was disbanded; the “Restored” government moved its operations to Richmond and operated under the 1864 Constitution until Virginia was placed under martial law and the command of Lieutenant General John M. Schofield. Schofield called for a new constitutional convention, which meet in Richmond in December 1867. (As an aside, the 1867 Constitution contained a provision preventing Virginia from ever again leaving the Union.)On October 8, 1869, The Restored Government of Virginia voted to ratify the Fourteenth and Fifteenth Amendments (that’s a story in itself), and by doing so began the process of re-admittance to the Union, which concluded on January 26, 1870 when President Ulysses S. Grant signed an act terminating martial law.So let’s return first to the Constitutional question. Did the government of West Virginia have the permission of the “government of Virginia” to form a new state? If you consider the “Restored Government” to be worthy of its name, then the answer is yes, if you consider the Secessionist Government to still be legitimate, if wayward, then the answer is no. Each government was operating under a duly ratified “national” Constitution.The Confederate Constitution was a near duplicate of the original and had exactly the same language in Article 4 Section 3, Clause 1. But West Virginia was not trying to form itself as a state under the Confederacy, but under the Union, so the U.S. Constitution would apply.West Virginia had the permission of the Restored Government and of Congress (Lincoln was anxious to receive a few more Republican votes in the Congress). The only remaining question is whether the Restored Government of Virginia was acting legitimately, i.e. with the support of a majority of the people residing within the geographical confines of the state. That is the $64K question and it is question is probably unanswerable since no poll of all the residents of the state (to my knowledge at least) was taken.So although it is a terribly confusing situation even to this day, I think the admittance of West Virginia into the Union was “legal” and probably even constitutional in terms of the U.S. Constitution, but Virginia’s own State Constitution was probably violated in the process.As to the question of today’s local, state and national governments operating with the consent of the governed and exercising legitimately delegated powers, in my view that remains highly debatable.

It would seem this scenario is covered by the Interstate Compact clause, which means the permission of Congress would be required. The situation with the formation of West Virginia as a state would seem to bear on the question. Although the following is a bit long, it shows the level of intrigue and political dealings that occur when groups of people really want to “git er done.” It is excerpted from an essay I published in 2014:Remember the Civil War, or the “War for Southern Independence” as some prefer to call it? That was the catalyst for this bizarre happenstance. But before I get into the details, let’s review a basic fact about governmental power. The Virginia Declaration of Rights states in Section 2 that “all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.” This statement seems fairly innocuous but is actually a powerful expression that few today really understand. Governments have no legitimate power except what they receive as a delegation of power from the people (Jefferson called them “just” powers). Sure, once governments are allowed to assemble armies and police forces, from that point on they can create whatever power they want and enforce it with the barrels of guns, but their legitimate power is still constrained to whatever portion originated with the people. Remember this, it becomes important later on.Let’s go back to the year 1860. Rising tensions between the manufacturing North and the agrarian South, exacerbated by the issues of slavery, tariffs, nullification and state’s rights reach a breaking point on December 20th, 1860 when South Carolina secedes from the Union. The Virginia General Assembly calls for a convention, to meet in Richmond on February 13, 1861, to consider the question of whether Virginia will do likewise. By February, six additional southern states have seceded.On April 12th, the Union fort at Sumter, South Carolina is attacked and surrenders to the South the next day. Two days later, President Lincoln issues a call for 75,000 Union troops, including three regiments of 2,340 men from Virginia. The call for troops proves too much for the Virginia convention delegates. Although previous resolutions to secede had been defeated, on April 17, 1861, the convention passes an “Ordinance of Secession” by an 88-55 vote. Virginia voters approve the ordinance by a wide margin and the convention formally ratifies the Constitution of the Confederate States of America on June 19, 1861. Virginia is out of the Union.Or are they?Over the previous 40-50 years the western half of Virginia, including what is today the State of West Virginia, had experienced a flood of new settlers. Attracted by cheap plentiful land, these hardy souls set up much smaller farms than those in the east -- farms manageable without resorting to slave labor. Calls for emancipation and more equitable representation in Virginia’s government are increasingly heard from the west. Despite constitutional conventions in 1829 and 1850 to address the problem, the west still feels under-represented. And in April 1861 they take umbrage at the action of Virginia’s secessionist government (the servants are no longer “amenable”). On May 11, and again on June 11, 1861, western delegates convene in the city of Wheeling where they set up a separate government, calling themselves the “Restored Government of Virginia;” and they elect Francis H. Pierpont as their Governor. The “Restored Government” is immediately recognized by the U.S. Congress. “Virginia” is back in the Union (or are they?). The “Restored Government” quickly appoints two Senators, elects three Representatives (the old Virginia had 13 Representatives), and sends them to Washington where they are welcomed with open arms.OK, now we have two Virginia governments in existence, one meeting in Richmond and considering itself part of the Confederacy and one meeting in Wheeling considering itself part of the Union. Each claims the entirety of the land mass of Virginia as its own. But it gets even more bizarre.The “Restored Government,” acting in accordance with Article IV, Section 3 of the U.S. Constitution, passes a resolution allowing the counties of northwest Virginia to split off and form their own state called West Virginia. But before West Virginia is admitted to the Union as a distinct state (in 1863) we actually have three separate governments operating within the confines of the state of Virginia: one part of the confederacy, one part of the Union and one hopeful of becoming a separate state. The “Restored Government” moved its operations to Alexandria until the war concluded in 1865, and they even approved a new constitution. Since this constitution was enacted under wartime conditions and the “Restored Government” stood on rather shaky ground to begin with, this 1864 constitution is not recognized as part of the constitutional history of Virginia.Was any of this legal? Well, as the movie title goes, it’s complicated.Remember the principle, codified in the Virginia Constitution, that all [political] power is … derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them? When “the people” delegate their sovereign power to a government, is that a one-way trip, is the power forever surrendered? No, no, a thousand times no! The Virginia Ratification Convention of 1788 made this crystal clear by writing: “WE the Delegates of the people of Virginia…, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”How much political power did the “Restored Government of Virginia” actually enjoy? That’s certainly debatable; same for the government of West Virginia, or for the Richmond government for that matter. But each certainly possessed some legitimate political power.But wait, there’s more! There is also a provision in the 1776 Constitution of Virginia (Article 1, Section 14) that reads: “…the people have a right to uniform government, … therefore, … no government separate from, or independent of the government of Virginia, ought to be erected or established within the limits thereof.” How was the “Restored Government” not in violation of the 1776 constitution? They considered the secessionist government officials to have vacated their offices, which the “restorers” gladly “filled.”After the war concluded in 1865, the “Restored” government moved its operations to Richmond and operated under the Constitution of 1864 until Virginia was placed under the military rule of Lieutenant General John M. Schofield. Schofield called for a new constitutional convention, which meet in Richmond in December 1867. They enacted a constitution containing a provision preventing Virginia from ever again leaving the Union.On October 8, 1869, Virginia voted to ratify the Fourteenth and Fifteenth Amendments, and by doing so began the process of re-admittance to the Union, which concluded on January 26, 1870 when President Ulysses S. Grant signed an act culminating the process (But wait, wasn’t “Virginia” back in the Union as of April 1861?).A pretty confusing picture, I know, but rich in constitutional doctrine and lessons that can still be applied today.This essay first appeared in the Yorktown Crier-Poquoson Post on 13 February 2014. Reproduction for non-profit purposes is hereby given.