Wednesday, August 26, 2020

Review - "Seceding from Secession: The Civil War, Politics, and the Creation of West Virginia" by Wittenberg, Sargus, and Barrick

[Seceding from Secession: The Civil War, Politics, and the Creation of West Virginia by Eric J. Wittenberg, Edmund A. Sargus, Jr., and Penny L. Barrick (Savas Beatie, 2020). Hardcover, maps, photos, footnotes, appendices, bibliography, index. Pages main/total:xv,186/283. ISBN:9781611215069. $32.95]

For many political leaders and citizens across the North, the 1863 creation of West Virginia was an incontestably justified reward for the loyalty of western Virginians and their significant contributions (over 30,000 men) to the Union war effort. Two more friendly senators to support Republican war aims and Reconstruction policies probably didn't hurt either. However, many others, including some of western Virginia's leading Unionist figures, opposed statehood on constitutional and philosophical grounds. Though it explores all of the many reasons why western Virginians found it in their best interest to break away from the Old Dominion, what makes Seceding from Secession: The Civil War, Politics, and the Creation of West Virginia most exceptional is its thorough and accessible addressing of constitutional and legal matters. Lending authority to that discussion of a central part of the debate over West Virginia statehood are the professional backgrounds of co-authors Eric Wittenberg (a Columbus, Ohio lawyer and well-known author of a great many Civil War military history studies), Edmund Sargus (a Federal district judge in Ohio), and Penny Barrick (a senior lawyer with the U.S. District Court for the Southern District of Ohio).

Regional tensions of some kind probably exist within every state, but western Virginians were the only citizens to use an unprecedented time of national emergency to form a new state within the borders of their own. Clearly such a drastic and extraordinary measure would not have been undertaken in the absence of a longstanding history of profound grievances. Indeed, western Virginians fumed for decades over an eastern political dominance they believed to be inattentive to the needs of citizens living west of the mountains and guilty of creating a tax system that disproportionately burdened western economic activities. These issues are well summarized in the book, as are the cultural, economic, and geographical ties that connected trans-Appalachian Virginians to the northern states of Ohio and Pennsylvania more intimately than they did eastern Virginia.

The authors also devote considerable space to outlining the Baltimore & Ohio Railroad's foundational influence on the new state of West Virginia. The need to protect this critical Union-controlled transportation artery was a key factor in garnering northern support for statehood, but the B&O also directly drove border-drawing considerations as its tracks ran through pro-secession counties that needed to be annexed to the new state to secure the railroad's future. The B&O was also a useful justification for citing military expediency as reason to sidestep constitutional objections to West Virginia statehood.

Statehood supporters had to engage in a great deal of legal gymnastics to overcome the requirements of Article IV Section 3 of the U.S. Constitution [the relevant part being "New states may be admitted by the Congress into this union; but 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."]. The book's extensive coverage of the debates over the legality and advisability of carving a new state out of Virginia's existing borders consists of a highly diverse selection of opinions expressed by influential leaders inside Virginia and across the North.

As one who opposed statehood, venerable Kentucky Rep. John Crittenden articulated perhaps the simplest and most logically unassailable reasoning. In pointing out the obvious conflict of interest involved, Crittenden wrote "It is the party applying for admission consenting to the admission. That is the whole of it. This legislature is here applying to be admitted as a new State, and at the same time and in the same character consenting that they themselves shall be so admitted!"

On the other side, the opinion of Senator Thaddeus Stevens is representative of one brand of supporting argument, a 'might makes right' justification of military expediency that took precedence over any constitutional concerns. A more soberly reflective argument can be found in Ohio Rep. John Bingham's opinion that when the majority of a state become armed rebels, then "the minority are the State" thus voiding the original State of Virginia and its duly elected representatives. Among other questionable aspects, this idea in itself possessed inherent weaknesses revolving around the legitimacy of the assumption of power (i.e. a small minority simply proclaiming themselves heads of government) while denying representation to fellow Unionists in Confederate-controlled parts of the state that might have collectively outnumbered pro-statehood western Virginians.

The president's overriding importance to the statehood debates is also made clear in the book. Lincoln was initially ambivalent on the matter. The cabinet divided 3-3 with more conservative Blair, Bates, and Welles opposed to statehood and Radicals Stanton, Chase, Seward heartily approving without much in the way of reservation. The former trio had legal and constitutional reservations while the latter hung their hats on wartime expediency and the idea that secession invalidated the need for approval by any of the voters of eastern Virginia. Lincoln claimed to not like the precedent that admitting West Virginia would set, but doubted that eastern Virginia Unionists "amounted to much" (he had views on minority representation similar on the whole to those of Chase and Bingham) and was quickly persuaded in the matter by the Wheeling leadership (particularly "Governor" Francis Pierpont, who vaguely threatened that the president vetoing the bill creating the new state would kill unionism in western Virginia). Thus, with Lincoln as well, military and political expediency overrode any constitutional and slippery slope qualms over the self-justifying legal fictions created throughout the process.

During the waning moments of the war, President Andrew Johnson appointed Pierpont governor of the Restored Government of Virginia. Ironically, given how instrumental he was in the creation of West Virginia, Pierpont moved to reclaim Berkeley and Jefferson counties for Virginia, and in December 1865 the Virginia General Assembly unanimously rescinded its formal consent for the creation of West Virginia as the borders then stood. On March 6, 1866 Congress passed a joint resolution approving the transfer of the two contested counties to West Virginia. Before Congress acted, however, the Virginia attorney general filed a lawsuit in the U.S. Supreme Court against West Virginia (with the 'state versus state' claim giving the Supreme Court original jurisdiction). The lawsuit did not challenge the legitimacy of West Virginia, but argued that the Restored Government gave only conditional consent to the transfer of the army-occupied railroad counties to West Virginia and alleged that the required elections (which were conducted under military auspices) were fraudulent. Virginia also maintained that the consent requirements of the U.S. Constitution were not met when the state withdrew its consent (which it regarded as inchoate) before Congress formally acted. In January 1868, the U.S. Supreme Court (without Chief Justice Salmon Chase, who was heavily involved in the statehood process, recusing himself) entered its 3-3 deadlock into the official record. It would be three years later, when the court was expanded to nine members under Grant's Republican presidency and questions over Virginia's official status as a state were finally resolved that the issue to finally be settled 6-3 in favor of West Virginia. Skirting any commentary on the constitutionality of West Virginia's original creation and minority Restored Government's authority over the entire state, the majority court decision rejected the notion that Virginia could revoke its own consent years later and found the election fraud allegations too "indefinite and vague" to overturn the Restored Government of Virginia governor's certification of the results.

A large portion of the book (collected together in the appendix section) consists of full transcriptions of historical documents related to West Virginia statehood. In addition to the cabinet letters to Lincoln explaining their opinions on West Virginia's constitutionality, the State of Virginia vs. State of West Virginia Supreme Court complaint, the 1871 Supreme Court decision, and the 1911 Virginia vs. West Virginia decision on public debt apportionment, the appendix also includes the January 2020 West Virginia resolution requesting a Frederick County, Virginia referendum on becoming a part of West Virginia (unlike Berkeley and Jefferson counties, Frederick County never conducted a consent vote).

Whenever you have three authors working together on a single narrative there will typically be some discontinuity in flow, but, in this case, there are no distractions in that area beyond some repetition. Instead, all of the authors deserve praise for not trying to lead the reader down any particular path of partisan reasoning. Articulating the topic's legal twists and turns in a manner easily understood by a general audience, they expertly present the most compelling arguments of both sides without ideological bent. Seceding from Secession serves a useful purpose as a comprehensive repository of relevant public and private documents related to the topic, but its greatest value lies in its lucid summaries of the social, political, economic, and legal contexts surrounding the formation and early history of West Virginia. The new standard treatment of the subject, this volume is a highly recommended resource for general and specialist readers alike.

3 comments:

  1. Thanks for doing an in-depth review, Drew. We are surprised by how well the book is doing. It sold out almost immediately and we now just got in the second printing. One of the few crossover titles that is appealing to everyone. Onward.

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  2. Drew, thank you for those very kind words. You put a lot of your heart and soul into writing one of these books, and then you worry whether you've done a good job. Seeing a review like this makes that hard work worthwhile. Speaking for my co-authors Ed and Penny, we very much appreciate what you said about the book. Thank you!

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    Replies
    1. Eric,
      I started collecting all the good West Virginia books I could find in the early 2000s, and was hoping someone would write a book like this someday. So thanks to you as well!

      Drew

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