There has been only one time in United States history when a state divided itself in two. And it’s not likely to happen again, says an expert in constitutional law.
“The Constitution states that no new state may be formed from an existing state without its consent and the approval of Congress,” according to A.E. Dick Howard, a professor of law at the University of Virginia. “Both bodies have to consent.”
That means the General Assembly in Richmond would have to vote approval before several counties in Northern Virginia -- the ones with a deep and rich tax base -- could form a new state.
IT HAPPENED IN 1863 when West Virginia was formed during the Civil War, Howard said, but “the approval there was a bit fraudulent.
Virginia was in secession as a confederate state, but Alexandria remained in federal hands. A ‘rump’ legislature met in Alexandria, and purported to act for the state of Virginia,” he said.
“The people of West Virginia were against secession,” Howard said. “When Virginia seceded, a movement was undertaken in West Virginia to create a new state. Congress approved, and consent was given by the legislature in Alexandria. In formal terms, the constitutional requirements were satisfied.
“In reality, one might have questions about whether it really satisfied the spirit of the Constitution.
“But of course, the Civil War was an extraordinary circumstance. I don’t think anyone would argue we are in circumstances quite that unusual at the moment,” Howard said.
“PERIODICALLY, Nantucket and Martha’s Vineyard make noises about leaving the state of Massachusetts because they don’t think they are being treated fairly. It is usually about taxes or spending,” Howard said. And “Staten Island once threatened to secede from New York.”
The most recent example of an effort to secede was in Texas, when a handful of self-styled militia holed up in a house and declared themselves the Republic of Texas.
“They argued that Texas had never legally become part of the United States,” Howard said. “They argued that before 1845, Texas was not a part of the Union, and even if it had been, it left in 1861.”
The secessionists held some hostages, Howard said, but gave them up peacefully in exchange for an opportunity to file suit in federal court seeking recognition as a republic.
“A federal judge dutifully heard the case and ruled that Texas was part of the Union, to no one's surprise,” Howard said.
“That’s an example of an attempt to secede that is fairly recent."
Sometimes in California, he said, there is talk of secession. As in Virginia, it is the northern, well-educated, populace that sees independent statehood as an advantage.
“San Francisco doesn’t think it is like Los Angeles,” said Howard. But the underlying basis of that argument, he said, is access to water. “Southern California is always dry,” Howard said.
IF THE NORTHERN Virginia counties of Fairfax, Prince William, Arlington, Loudoun, and Fauquier were to secede, Howard said, they should have an Indian name, such as Occoquan. But if an English name were chosen, it should be Upper Virginia, he said.
“If you have ever been to England, it is ‘upper this’ and ‘lower that,’” Howard said.
“[Upper Virginia] has a certain air of superiority.”