Archive for January 9th, 2012

Constitutional Law for the Writer

Article IV, Section 3, Clause 1 of the United States Constitution states:

New States may be admitted by the Congress into this Union; but no new State 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.

It’s not often one gets to consider their novel unconstitutional, but that’s just the hiccup I hit late yesterday when browsing around the internet.  I don’t remember exactly how I ended up landing on this particular clause of the Constitution, even after retracing my steps a little, but land on it I did.  Someone said it on the television, but I’ll be damned if I can figure out what I was watching last night that would quote the Constitution.

My wife and I are not allowing it to derail anything when it comes to our novel, which features a state very clearly “formed by the Junction of two or more…Parts of States.”  It is, in fact, made up of four Parts of States, which apparently was the kind of thing that got capitalized back in the day.  This started a short research chain that wandered through both Article IV and the directly related court case of Virginia v. West Virginia (the first of two such named cases, apparently).  This court case firmed up the constitutionality of the state of West Virginia (once again, a state formed by Parts of States) largely by not making an explicit ruling one way or another.  It’s convoluted, and I’m not going to attempt to explain it here, because I know parts of it will be wrong.

Unfortunately the little loophole that West Virginia used to become a state won’t quite work for us.  As best I can understand it (and please don’t use this as your research for a paper, as some of the details are certainly wrong), the legislative delegates representing the counties that would become West Virginia declared those delegates from the rest of the state who voted in favor of secession, and governor Letcher (who actually discouraged secession), in rebellion against the United States and thus their position within the legislature was forfeit.  They then appointed a new governor, declared themselves the only valid legislature of the state of Virginia, and as such provided their Consent for the formation or erection of the new State out of their Part of State.  It’s a fascinating end run around the question of a state counter seceding from another, and one the government of the United States was willing to approve because it was clearly in their best interest to do so.  This is the kind of real-world stuff that makes the things we craft as fiction writers possible, because such fantastically obscure and questionable things happen all the damn time in reality.

So in the end I did some entirely amateur constitutional scholar work and some hand waving to dictate how, exactly, our new state formed, with questions of Consent overridden by Union force.  It combines the best aspects of the WV juke move with how the federal government successfully forced states to enact 21 as the legal drinking age.  This will all be entirely background information, not even referred to in passing within the book, but it’s the kind of detail that I’m glad to know because it’s exactly the kind of detail someone may ask about.  I know I’ve spoken in the past about little details that readers may want to know or ask about, those things that the writer knows about a setting or character that don’t directly come up in the book.  This was just another one of those cases that just drove home how important that might be.

Because if I got curious after just a few minutes of research, someone else who has a deeper Constitutional knowledge than I is damn well likely to be curious as well.

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