Brace yourselves for this one, Mountaineers: West Virginia might not legitimately be a State of the Union, but a mere illegal breakaway province of the Commonwealth of Virginia. In the summer of 1861, following the outbreak of the Civil War, thirty-five counties of Virginia west of the Shenandoah Valley and north of the Kanawha River met in convention in the town of Wheeling, to consider seceding from secessionist Virginia. In short order, the Wheeling convention declared itself the official, lawful, loyal government of Virginia and organized a proposed new State of (what would come to be called) West Virginia. Then, in what must certainly rank [*294] as one of the great constitutional legal fictions of all time, the legislature of Virginia (at Wheeling) and the proposed government of the new State of West Virginia (at Wheeling), with the approval of Congress, agreed to the creation of a new State of West Virginia (at Wheeling), thereby purporting to satisfy the requirements of Article IV, Section 3 of the Constitution for admission of new States "formed or erected within the Jurisdiction of any other State." n1

...[I]s it clear that the text of the Constitution permits creation of new States out of existing States at all, irrespective of anybody's "consent"? A careful look at Article IV, Section 3 reveals a subtle ambiguity: A semicolon, rather than a comma, separates the "Junction of two or more States, or Parts of States" clause - which contains the consent requirements - from the prohibition of new States being "formed or erected within the Jurisdiction of any other State." n3

Should the semicolon be understood as separating two distinct commands - as appears to be the case with the first semicolon of Article IV, Section 3, separating the grant of power to Congress to admit new States from the (two separate?) limitations on the power of Congress to admit States in the special case (cases?) of States formed by junction or separation, out of existing States? If so, even formal, legal-fiction consent does not matter: The limitation on admission of States carved from the "jurisdiction" of an existing State is a flat prohibition, not a description of circumstances for which consent is required; the consent proviso only applies to new States created by the junction of two or more existing States, or parts thereof, and thus cannot save poor West Virginia (and probably cannot save Kentucky, Maine, and possibly Vermont, either) from unconstitutionality. Indeed, even if the semicolon is merely an overgrown comma, and not a hard clause-break, the same conclusion might follow under the grammatical convention that a qualifying phrase (usually) modifies only the immediately preceding antecedent phrase. Both grammar rules and punctuation marks thus appear to conspire against the constitutionality of West Virginia.
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Part II, in addition to offering what we immodestly think is the most comprehensive analysis ever written on the linguistic meaning and original understanding of the Constitution's use of semicolons and antecedent phrase modification, offers serious lessons of more general application, concerning what should count as persuasive evidence of constitutional meaning, and the relationship of considerations of text, history, structure, purpose, intention, and accident, in theories of constitutional interpretation.