The West Virginia Constitution: Mountaineers Are Always Free 

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.

West Virginia — a state created from a Civil War separation — operates under a constitution ratified in 1872. Though many amendments have conformed it to modern beliefs of West Virginians, the document maintains its “Mountaineer” spirit through landowner protections and limits on eminent domain. As in many states, national politics have affected the state constitution in recent years, with voters approving an amendment declaring there is no state constitutional right to abortion and medically assisted suicide, euthanasia, or mercy killing. Lawsuits concerning what educational rights the constitution guarantees have played out in state courts.

Born of the Civil War

West Virginia holds a unique place in U.S. history, as it is the only state whose admission to the Union was sealed by presidential proclamation as a result of the Civil War. As tensions between northern and southern states grew, the Virginia legislature ratified its secession from the Union in May 1861. The next month, pro-Union Virginians voted to form their own government, the Restored Government of Virginia, and then to form the state of West Virginia. 

Delegates approved West Virginia’s first constitution in February 1862. That May, U.S. Sen. Waitman T. Willey submitted a bill to Congress to make West Virginia a state, on the condition it amend its constitution to gradually free all slaves. The U.S. House and Senate approved West Virginia’s admission to the Union by the end of the year. On June 20, 1863, President Abraham Lincoln created the state of West Virginia.

West Virginia’s present constitution was ratified in 1872 and has been substantively amended more than 60 times. 

West Virginia’s Uniqueness

The West Virginia Constitution is unique because of its Civil War origins and because the 1863 provision for emancipation came well before slavery was abolished nationally in 1865 through the U.S. Constitution’s 13th Amendment.

West Virginia’s first constitution, in 1862, was drafted at a convention in Wheeling before the capital moved to Charleston. It departed from the Virginia Constitution of 1830 by not requiring property ownership for voting, taxing all property equally at face value, and providing for equal representation based on population. The West Virginia framers also adopted the New England township system of government — direct democratic participation through town meetings — because they viewed Virginia’s county court system as inefficient and corrupt. Due to the strains of the  Civil War, there was a lack of oversight and accountability in some county governments that allowed corrupt practices, such as wartime profiteering and the abusive confiscation of commodities.

Responding to political tensions after the Civil War, West Virginia drafted a new constitution in 1872. West Virginia’s 1872 constitution returned to a system of county courts, which was amended to the current county commission structure in 1974. Also as a reaction to abuses in Virginia, the constitution beginning in 1872 prohibits the legislature from creating corporations through special laws and requires reliance on general laws applicable to all corporations.

As of its ratification, the West Virginia Constitution incorporated the Bill of Rights. This early incorporation of the Bill of Rights symbolized an emphasis on personal freedom. Article III, Section 15 states that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” The constitution also prohibits religious tests or loyalty oaths as a condition for voting. After the Civil War, former Confederates were barred from voting, and there was uncertainty about the voting rights of Black Americans. Liberal Republicans newly elected to the West Virginia Legislature sought to ensure the voting rights of both groups. Although the 15th Amendment of the U.S. Constitution, ratified in 1870, ensured the voting rights of Black males, former Confederates in West Virginia were still disenfranchised until 1871, when the state’s voters passed the Flick Amendment, named for a prominent Liberal Republican. 

The West Virginia Constitution also departed from its Virginian counterpart by establishing strong state support for public education by regulating school districts and establishing the state board of education. Before the Civil War, Virginia did not have a statewide system of free public schools, and education was mostly for white students from elite families. After the abolition of slavery, the Freedmen’s Bureau established Virginia’s first statewide public school system, but only for Black students. Virginia did not establish a statewide public school system for all students until 1870. 

West Virginia’s motto, Montani Semper Liberi, translates from the Latin to “Mountaineers Are Always Free.” Before West Virginia became a state, the term mountaineer was synonymous with someone from western Virginia who embodied the idea of an independent frontiersman claiming their little slice of heaven. Further illustrating the mountaineer spirit valuing land ownership, the West Virginia Constitution includes specific provisions that limit the state’s power of eminent domain for private economic development and ensures just compensation for landowners. The Supreme Court of Appeals of West Virginia — the state’s highest court — also has recognized that eminent domain should only be for public use.

West Virginia is the only state whose constitution prohibits religious organizations from incorporating — a carryover from Virginia’s constitution before the Civil War. In 2024, a federal judge ruled that the prohibition against religious organizations incorporating violates the First Amendment’s Free Exercise Clause. The decision noted that after Virginia amended its constitution in 2002 to allow religious organizations to incorporate, the West Virginia secretary of state began issuing licenses to religious organizations. That licensing continued until 2022, when West Virginia voters shot down a proposed constitutional amendment to allow religious organizations to incorporate. The 2022 amendment failed, some clergy believed, due to the voters’ lack of understanding. The secretary of state resumed issuing licenses after the 2024 federal court order. The West Virginia legislature is now considering a constitutional amendment that would bring the state constitution in line with the law and allow religious organizations to set up formal rules of corporate governance, be protected from personal liability, and better manage their property and finances. If the legislature passes it, the amendment would then be put before voters during the 2026 general election.

Separation of Powers

Article V of the West Virginia Constitution provides for separation of powers between the legislative, executive, and judicial branches. The legislative branch is composed of 24 state senators serving four-year terms and 65 delegates serving two-year terms representing their geographic districts proportionally. Each of West Virginia’s 55 counties has a county commission with popularly elected commissioners.

The state executive branch includes the governor, secretary of state, treasurer, auditor, commissioner of agriculture, and attorney general elected in popular partisan elections to four-year terms.

In 1974, the Judicial Reorganization Amendment created a state unified court system composed of all judges except municipal judges. Initially the West Virginia Constitution, based on separation of powers, allowed the West Virginia judiciary to set its own budget. However, after concerns about excessive spending within the judiciary, the state’s constitution was amended in 2018 to allow the legislature to reduce the judicial system’s total general revenue spending by up to 15 percent. 

Judicial Branch and Selection of Judges

West Virginia’s judges run in popular, nonpartisan elections, but they can still identify themselves as members of a political party. Judicial elections were partisan until 2015.

The judicial branch is represented by the five members of the Supreme Court of Appeals, who serve 12 year terms; three members of the Intermediate Court of Appeals, who serve 10 year terms; circuit judges and family court judges, who serve 8 year terms; and magistrates who serve 4 year terms and are not required to be lawyers. Municipal court judges, who are not part of the state’s unified court system and do not have to be lawyers, are selected in various ways. 

Recent Amendments

To amend the constitution, two-thirds of the West Virginia House of Delegates and Senate must pass a resolution to put an amendment on the ballot, and it must be approved by a majority of voters. There is no citizen initiative to amend the state constitution or statutes.

In November 2024, West Virginia voters narrowly approved a constitutional amendment prohibiting medically assisted suicide, euthanasia, or mercy killing by individuals, physicians, or health care providers. Before the amendment, West Virginia law also outlawed these practices. The amendment appeared to be influenced by other states that had legalized or decriminalized medically assisted suicide and the perception of a need to protect West Virginians. “There’s this phenomenon of nihilism that’s sort of spreading across the country, and I think it’s an important issue we need to address,” said State Delegate Pat McGeehan (R-1). “To the best of my knowledge, we’ll be the first to place this and take a stand in the state constitution.” West Virginians for Life and the Catholic Church’s Wheeling-Charleston Diocese supported the amendment, and the ACLU of West Virginia and Death with Dignity opposed it.

Consistent with voters’ antiabortion stance, the West Virginia Constitution was amended in 2018 to explicitly state there is no constitutional right to an abortion. In 2022, in reaction to the U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade, West Virginia has a near-total abortion ban at all stages of pregnancy except if the fetus is nonviable, it is an ectopic pregnancy, or involves a medical emergency. Abortion is only permitted in cases of rape and incest subject to gestational limits and reporting requirements to law enforcement. 

Significant State Supreme Court Interpretations

The Supreme Court of Appeals of West Virginia has issued noteworthy opinions involving education under the state constitution. In 1982’s Pauley v. Bailey, the state’s highest court upheld the decision of Circuit Judge Arthur Recht that students in poor school districts were not receiving a “thorough and efficient public education” as guaranteed in the West Virginia Constitution. Known as the Recht decision, it required substantial changes to the state’s educational system, including funding reforms and improving school facilities and resources. Recht supervised these reforms that promoted equality in West Virginia’s educational system until he closed the case in 2003.

Twenty years later, in 2022, the Supreme Court of Appeals weighed in on the national debate on state vouchers for private school education in State v. Beaver. The case involved the Hope Scholarship Act, which established education savings accounts for public school students. The Supreme Court of Appeals upheld the law’s constitutionality, a decision that has been criticized for potentially undermining the state’s constitutional guarantee of a fundamental right to education.

The Supreme Court of Appeals in 2023 upheld legislation that provided the ability to move forward with the creation of charter schools. Challengers to the law argued that the creation of charter schools required a constitutional amendment. 

U.S. Supreme Court Weighs In  

Notable cases involving West Virginia’s constitution ultimately decided by the U.S. Supreme Court have addressed such issues as state debt obligations and racial discrimination in jury selection.

Given West Virginia’s separation from Virginia during the Civil War, a lingering question was the division of debt when West Virginia became a state. In 1911, in Virginia v. West Virginia, the U.S. Supreme Court held that under the West Virginia Constitution, West Virginia was responsible for one-third of Virginia’s debts as of January 1, 1861. In addition to establishing that successor states are responsible for the debts of their predecessors, the U.S. Supreme Court also overturned earlier decisions from West Virginia involving the 1st and 14th Amendments.

In 1880’s Strauder v. West Virginia the U.S. Supreme Court overturned a state court criminal conviction upheld by West Virginia’s Supreme Court of Appeals because the state law allowed only white men to serve on juries. The case was pivotal in upholding the Equal Protection Clause of the 14th Amendment and in combating racial discrimination in the legal system.

• • •

Although West Virginia is a small state in terms of area and population, its unique national impact is evident in its constitution. Born from the Civil War, its early constitution was notable for emancipation of enslaved people before the U.S. Constitution and an emphasis on personal freedom. West Virginia’s constitution and judicial interpretations have addressed modern issues of debate such as school choice, judicial reform, abortion, and medically assisted suicide, euthanasia, or mercy killing. If history predicts the future, the mountaineer spirit will continue to be reflected in West Virginia’s constitution. 

Michelle Mensore Condon is the director of externships, director of public service and pro bono, and distinguished visiting professor of law at Charleston School of Law in Charleston, South Carolina. She practiced law in West Virginia and was the first public information director for the Supreme Court of Appeals of West Virginia.

Suggested Citation: Michelle Mensore Condon, The West Virginia Constitution: Mountaineers Are Always Free, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Nov. 18, 2025),