The absence of one party to a legal requirement is not justification for that item being legally binding. For example, I cannot go to a bank and simply deem you to have cosigned the loan by virtue of your absence. ~ To assert that the assent of a State, even if it was in rebellion, is not really required when the Constitution explicitly demands it is to deny the Constitution's position of the highest law of the land.
To elaborate: Even if the Executive issued an Executive Order instructing the various Government Agencies to confiscate firearms, and the legislature were to pass [ordinary] legislation making all private firearm possession prohibited, and the Supreme Court were to declare these acts legitimate would not make them legitimate. Why?
Because the Second Amendment says "the right of the people to keep and bear arms shall not be infringed", and firearms are certainly arms, and such as above is certainly infringement.
The State of West Virginia was erected during a period of time in which there was no Virginia state goverment to assent or dissent the application of the loyal citizens of West Virginia for accession as a loyal state in the Union.
The absence of a State government to assent is precisely the point: a State government was required, by the Constitution, to assent... it did not. Therefore, for WV & VA to both be States, Secession must be valid: for either VA could not secede from the US and WV could not be a State, or VA could secede and WV could secede from that secession [and join/stay with the Union].
West Virginia came into being because the western counties setup a rump government headed up by Pierpont. The convention to setup the West Virginia government had persons representing counties that they did even live in. When the vote came on whether the specified counties were to secede from Virginia, the western counties were occupied by Union troops. The vote totals were substantially less the vote totals held 3 years previously when Virginia voted to secede. I believe in some counties, the vote totals were in the hundreds. Of the counties that presently make up the state of West Virginia, about half voted to secede when Virginia seceded.
Lee’s quote is quite accurate about Virginia trying to hold the Union together. During the secession convention, Virginia voted not to secede (I think the date was Apri 3, 1861) and sent a delegation to Washington. Lincoln refused to meet the delegation. After Lincoln called up troops to invade the South, Virginia refused to be a party to the invasion and seceded.
“The absence of a State government to assent is precisely the point: a State government was required, by the Constitution, to assent... it did not. Therefore, for WV & VA to both be States, Secession must be valid: for either VA could not secede from the US and WV could not be a State, or VA could secede and WV could secede from that secession [and join/stay with the Union].”
Since the State Government of Virginia did not remain absent, the reconstituted Government of Virginia loyal to the Union gave its assent to the secession of the counties constituting the new State of West Virginia. When this same state government of Virginia and same Governor of Virginia subsequently sued and alleged the accession of West Virginia was unconstitutional, the Supreme Court of the United States decision found West Virginia to be constitutional. So, the government of the State of Virginia loyal to the Union did assent to the secession of West Virginia from Virginia and accession to the Union.
No, secession does not need to be valid for West Virginia to be entered as a valid state. When a state enters insurrection, the US does not lose the territory, rather, its state government institutions lose legitimacy, and its land area reverts to being a territory. As a territory, the Congress has the authority to set boundaries and to establish state governments, which the Congress did. Congress retains the right and duty to directly rule areas in insurrection, because of the constitutional guarantee that each state has a republican form of government.
Just as the boundaries of Ohio, Indiana, Michigan, and Illinois were set by the Congress, and state governments in those territories were established.