IS WEST VIRGINIA UNCONSTITUTIONAL?: At the start of the Civil War, most of the citizens of the Commonwealth of Virginia’s northwestern region were not keen on the Confederacy and wanted to remain with the Union. On this day in 1862, therefore, Abraham Lincoln signed into law an Act admitting West Virginia as our 35th state, thus dividing Virginia in two.
But did the United States comply with all the Constitutional requirements for creating a new state out of an old one? The answer is arguably no. There is a Constitutional requirement that a state give its permission before a region can secede and became a separate state. In this case, permission came only from a rump government-in-exile session of the Virginia legislature consisting of members from the seceding region. Times being what they were Lincoln accepted it. Still, as nice as it is to have West Virginia as a state (hey, 50 is a nice round number), we might not want to wave that around as a precedent.
Vasan Kesavan and Michael Stokes Paulsen discussed this burning Constitutional question at length a few years back.
UPDATE (FROM GLENN): I talk about this very precedent, in the context of splitting California, in my state secession paper, forthcoming in the Notre Dame Law Review.