Rogue State by Richard H. Owens

States.” If it do[es] not apply, then there stands the naked unconditional prohibition of the formation of a new State, within the jurisdiction of any other state - direct, simple, and incapable of being misunderstood.
    If, admitting that the clause does not apply, it be claimed that the prohibition is overruled and annulled by practice, in the case of Maine, Kentucky, and Tennessee, which were, respectively, “formed and erected within the jurisdiction” of Massachusetts, Virginia and North Carolina, I have two alternative answers: In the absence of proof to the contrary, I assume, that both Congress and the people did obey the Constitution, and fulfill all its requirements, in form and substance. If it be shown that in those instances, the Constitution was disregarded and broken, still I insist that those abuses, do not absolve us from the duty to obey the plain letter and sense of the Constitution.
    But if the clause do [sic] apply, still, in this case, its terms have not been complied with. It speaks in the plural - “the legislatures of the States concerned” — i.e. Virginia and West Virginia. The consent required by the Constitution is not the consent of the State, generally, nor of its Governor, nor its Judiciary, nor its Convention, but “the consent of the Legislatures of the States concerned.” And that is not the only instance in which the Constitution vests long important powers in the Legislatures of the States – They choose the Senators absolutely, and they direct the manner in which electors of President and Vice-President shall be chosen. And these are Constitutional functions which cannot be exercised by substitute, nor usurped by any other functionary.
    The division and allotment of powers, as established by the Constitution is not mere form, but vital substance, dear to our fathers, who designed and used it as a guard against the unity of powers-to prevent the concentration of power in a single hand or a few hands.
    Here, the proposition is to make two states out of one. Each one, of course, must have a legislature, and the Constitution requires the consent of both legislatures, before the thing can be done. 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.
    It is a very grave and important thing to cut up and dismember one of the original States of this nation-for a time, in our national youth, the greatest of all-and if we must do it, it behooves us to know that we are acting within the letter of the Constitution, and with a decent respect for the forms of law. (Author’s italics).
    So much for the letter of the law. Let us now examine a little into the sense and spirit of it. When the rebellion broke out, all the State authorities of Virginia joined it, and made organized and official, as well as individual, insurrection against the national government, defying its power, and, in order the more effectually to resist it, inviting invasion from States further South. Still a remnant, chiefly in the northwestern counties, remained faithful; and the duty rested upon this government to protect that remnant; to repel that invasion and suppress that insurrection; and thereby to restore Virginia, as she was before the insurrection, to her proper place in the Union.
    That was and is the plain constitutional duty of this government; and all that this government has yet done, by legislation, by executive action, or by actual war, has been done with that avowed and only object. When all the governmental officers of the state of Virginia acting in organic form, had renounced their allegiance to the Constitution, and had risen, in armed revolt against the nation, carrying along with them, into flagrant war, a great majority of the people of the State, this government found itself in a strange and anomalous