Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 71
2021
Recibido el 28/08/2021 Aceptado el 12/10/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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Vol. 39, Nº 71 (2021), 621-632
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
American constitutionalism and the
mid-19th-century nation
DOI: https://doi.org/10.46398/cuestpol.3971.37
Roman Romashov *
Ekaterina Petrova **
Zurab Kalandarishvili ***
Victor Kovalev ****
Abstract
The authors of the article have studied the causes of the
American Civil War with due regard to the history of constitutional
law. This research is based on several political, economic, legal
and cultural factors. The authors used the method of analyzing
historical documents. After analyzing judicial precedents and
global historical trends, they have concluded that America’s
constitutional institutes lost their eectiveness and became a
weapon in the hands of struggling parties during the constitutional
crisis. As a result, the compromise system of the early nineteenth century
became a new state and legal structure.
Keywords: Causes of the Civil War; American constitutionalism; U.S.
legal system; slavery in American history; legal-institutional
history.
* Murmansk Arctic State University, Murmansk, Russia. ORCID ID: https://orcid.org/0000-0001-
9777-8625
** Ivanovo State University, Ivanovo, Russia. ORCID ID: https://orcid.org/0000-0002-9149-3888
*** Saint-Petersburg University of Humanities and Social Sciences, Saint-Petersburg, Russia. ORCID ID:
https://orcid.org/0000-0002-8174-1809
**** Saint-Petersburg University of Humanities and Social Sciences, Saint-Petersburg, Russia. ORCID ID:
https://orcid.org/0000-0003-0040-5828
622
Roman Romashov, Ekaterina Petrova, Zurab Kalandarishvili y Victor Kovalev
American constitutionalism and the mid-19th-century nation
El constitucionalismo estadounidense y la nación de
mediados del siglo XIX
Resumen
Los autores del artículo han estudiado las causas de la Guerra Civil
estadounidense teniendo debidamente en cuenta la historia del derecho
constitucional. Esta investigación se basa en varios factores políticos,
económicos, legales y culturales. Los autores utilizaron el método de
análisis de documentos históricos. Tras analizar los precedentes judiciales
y las tendencias históricas mundiales, han concluido que los institutos
constitucionales de Estados Unidos perdieron su ecacia y se convirtieron en
un arma en manos de los partidos en lucha durante la crisis constitucional.
Como resultado, el sistema de compromisos de principios del siglo XIX se
convirtió en una nueva estructura estatal y legal.
Palabras clave: Causas de la Guerra Civil; Constitucionalismo
estadounidense; Sistema legal de Estados Unidos;
esclavitud en la historia de Estados Unidos; historia
jurídico-institucional.
Problem statement: citizenship and rights at the federal and
state levels
American constitutionalism in the late 18th and early 19th centuries had
several “pitfalls” that created zones of potential tension in the US political
and legal eld. Some problems arose at the very beginning of USA history
and had been successfully masked by the system of compromises and gures
of speech in the constitutional documents written by the Founding Fathers.
The rst challenge was the lack of clarity about the rights of citizens in the
United States and their guarantees. Therefore, there is a logical question:
how does US citizenship correlate with the citizenship of each state and
who is authorized to use the power of law to protect these rights, namely the
state government or the federal government? Traditionally, states (Kettner,
1978) ensured civil rights, i.e., protected life, liberty, and property through
their institutions, statutes, and court decisions, while punishing crimes and
resolving civil disputes. Although states were the guarantors of rights, there
was no clear theory of citizenship. In 1862, the Attorney General under
President Lincoln admitted that he did not like the denition of “a citizen
of the United States” and argued that “the matter was as obscure as it was
at the moment the American state was founded” (Kaczorowski, 1986: 872).
The pre-Civil War legal theories generally accepted two types of rights:
basic and inalienable rights guaranteed by the federal government and
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CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 621-632
protected by federal courts, which could not be denied by states, and
rights that did not need a national guarantee (Wiecek, 1977). Nevertheless,
precedents important for the American constitutional theory demonstrated
dierent views on this issue.
In Coreld v. Coryell (1823), Supreme Court Justice Bushrod Washington
ruled that:
We felt no hesitation in conning these expressions to those privileges and
immunities which are, in their nature, fundamental; which belong, of right, to
the citizens of all free governments; and which have, at all times, been enjoyed by
the citizens of the several states which compose this Union, from the time of their
becoming free, independent, and sovereign (Hurd, 1968: 551).
At the same time, there are other rights approved by certain states and
valid only in their territory.
However, not all court decisions supported this viewpoint. In Barron
v. Baltimore, the Supreme Court claimed that the Fifth Amendment in
particular and the Bill of Rights in general restricted the federal power and
could not be considered as delegating to it any powers to protect the rights
of citizens. The comity clause in Article 4 of the US Constitution empowers
the federal government to guarantee the rights of citizens of one state if
they are discriminated against in the territory of another. At the same time,
the rights of citizens are protected exclusively by the authorities and courts
of the state in question (Hurd, 1968).
Initially, state citizenship and US citizenship had been regarded as two
aspects of the same status. Gradually, the primary loyalty and supremacy
of guarantees had become questionable. This issue reached a new level and
acquired an additional aspect since it dwelled on territorial structure, the
balance of powers between the federal center and state authorities, and the
implementation of the principle of subsidiarity. In its extreme form, this
problem conditioned the right to secession.
Is the United States a community created by the united will of a political
nation or a federation of sovereign and independent states? During the mid-
19th century crisis, two views became polarized. The proponents of unity
headed by A. Lincoln argued that the Union and the nation preceded the
Constitution, which logically follows from its Preamble: “We the People of
the United States, in Order to form a more perfect Union...” (Kettner, 1978:
339). In mathematical terms, A. Lincoln understood the Union as a set,
uniting several subsets, of which only the former could have the supremacy.
The secessionists represented the Union as an agent of independent
states that delegated their sovereignty to the federal government. At the
same time, citizens delegated their rights to the states, and the states further
delegated their rights as collective entities rather than individual rights of
citizens (Kettner, 1978).
624
Roman Romashov, Ekaterina Petrova, Zurab Kalandarishvili y Victor Kovalev
American constitutionalism and the mid-19th-century nation
The important factors that stipulated the growth of constitutional
confrontation were a growing gap in the economy and management of the
North and the South, as well as the issue of slavery, which were closely
connected.
1. A system of compromises in a crisis. Political balance and
judicial precedents
The constitutional tradition required maintaining a balance between the
Southern and Northern states in the Senate. Therefore, the admission of
new states to the Union had to be in a 1:1 ratio. For example, the adoption of
slave Missouri in 1820 was compensated by the division of Massachusetts
into two states (Massachusetts and Maine). This system maintained a
balance but was not formalized, which created the risk of complications.
One possible way to overcome them was the Missouri Compromise,
according to which states were divided into free and slave along the parallel
36º30’ north from the western tip of Missouri.
If the situation with California and Texas was more or less obvious since
they were included in the Union as states with their own Constitutions and
their inclusion kept the balance (Texas was a slave state, California was a
free state), then the issue with territories was quite challenging (Carlisle,
2008).
The Northern states protested not against slavery but feared the
expansion of the southerners’ power. The latter suspected the northerners
of conspiracies and tension between the parties increased. In 1846,
Congressman David Wilmot of Pennsylvania proposed prohibiting slavery
in any territory purchased or seized from Mexico (Wilmot Provisio).
Alternatively, the Southern Democrats oered to extend the Missouri
Compromise line to the Pacic Ocean. According to the southerners, it
was unfair that the territories acquired due to joint eorts would become
unequivocally free, i.e. would give a political advantage to the North.
As a result, Senator from Kentucky Henry Clay proposed a package
of eight decisions that had far-reaching political and constitutional
consequences. Some of them satised both parties, including the admission
of Texas as a slave state and California as a free state, the federal government
securing the debts of the Republic of Texas, the planning of Utah and
New Mexico without resolving the issue of slavery (Carlisle, 2008). There
was a comradely gesture towards the northern abolitionists, namely the
prohibition of slavery in the Federal District of Columbia which created
some inconvenience for the southern congressmen who could not bring
their slaves.
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However, the following action brought the confrontation to a new level
and emphasized the issue of human rights and the balance of powers
between the states and the federal government (Varon, 2008). This referred
to the Fugitive Slave Act of 1850.
In 1793, a law was passed that allowed masters to pursue fugitive slaves
even in free states. However, the law did not oblige local authorities to
facilitate slave owners and slave hunters who acted at their own risk. This
law was followed by numerous precedents.
In Prigg v. Pennsylvania, the US Supreme Court considered the conict
between the federal act of 1793 and the Pennsylvania state law of 1826,
according to which:
If any person or persons shall by force and violence take and carry away […]
any negro or mulatto from any part of that commonwealth, with a design and
intention of selling and disposing of […], every such person or persons be deemed
guilty of a felony (Goldstein, 2011: 763).
Pennsylvania authorities arrested a runaway-slave hunter Edward
Prigg and his four assistants who apprehended Margaret Morgan living in
Pennsylvania as a free woman without her master’s permission.
In the course of judicial proceedings, Prigg appealed to the US Supreme
Court. Judge Joseph Story found the law of 1826 inconsistent with Article 4
of the US Constitution. However, he upheld the state’s right to prohibit its
ocials from assisting in the capture of fugitive slaves since state ocials
reported to their state rather than the federal government (United States
Supreme Court, 1842). This caused a range of new laws on personal freedom
in the Northern states which prohibited ling and accepting claims for the
return of fugitive slaves, considering cases and providing any assistance in
the capture.
The Fugitive Slave Act required state governments to assist in the
capture of fugitive slaves. Another concern for the supporters of freedom
was an article according to which a judge deciding in favor of returning a
slave to their owner received a remuneration of $10 and a judge recognizing
a black person free got only $5. Opponents reasonably accused slave owners
of bribing judges (Huston, 2003).
The Northern states objected that blacks have equal rights with white
citizens. In 1842, there was great diculty in adopting the Constitution of
Rhode Island to expand the rights of the population, including giving black
citizens of Rhode Island voting rights (Fitz 246). This was the victory of the
Equal Rights Party building its election campaign on anti-slavery rhetoric.
Under the Constitution of Rhode Island or the so-called “the people’s
constitution”, blacks could bring claims to the court on an equal footing,
including defending their freedom, and appeal to the Habeas Corpus Act.
626
Roman Romashov, Ekaterina Petrova, Zurab Kalandarishvili y Victor Kovalev
American constitutionalism and the mid-19th-century nation
The other Northern states began enacting freedom laws that allowed blacks
to defend their rights in court through various freedom suits.
Courts supported the above-mentioned theory and created several
precedents. In 1852, the New York Supreme Court ruled in the case of
Lemmon v. New York. The Lemmons, Virginia planters, decided to move
to Texas. For reasons of economy and safety, they chose to travel by sea.
They arrived in New York with eight slaves, including two children aged
between ve and two years old. In New York, there was a law passed in 1817,
according to which any slave who found themselves in New York, even in
transit, could le a claim for freedom (Fehrenbacher, 1997: 394).
During judicial proceedings, the Lemmons appealed to the fact that
there was a transit trade between two states and each of them recognized
slavery as legal. Under the courtesy clause, this trade was subject to federal
regulation and states could not restrict it at their own discretion. The defense
represented by John Jay (grandson of the rst Chief Justice of the United
States) and future President Chester Arthur claimed that the Lemmons
deliberately and voluntarily brought slaves to New York, knowing that this
was a free state. While requiring assistance in the return of fugitive slaves,
the federal law neglected slaves who legally led a claim for freedom. In
this regard, an expansive interpretation of federal laws on civil rights and
freedoms is unacceptable.
Judge Payne ruled that slavery could only be established by positive
law based on the English precedent in the Somerset v. Stewart case of 1772
(Nadelhaft, 1966). Getting into the territory without such a law, slaves
automatically became free. Such precedents as Winny v. Whitesides (1824)
and Rachel v. Walker (1832) determined that “the one liberated, becomes
forever free” and slaveowners could not claim the return of their property
even if they moved to any slave state.
A similar decision was made in Holmes v. Ford in the Oregon Territory
in 1853, which created a precedent for the regulation of slavery by the laws
of not only states but also those of the federal territories (Lockley, 1922).
In Ableman v. Booth (1859), the US Supreme Court partially overturned
this practice. In 1854, the abolitionist Sherman Booth was arrested for
hindering US Marshal Stephen Ableman from capturing the fugitive slave
Joshua Glover. However, Booth was released by a county judge in Wisconsin
who found the federal agent’s actions unconstitutional. Later this decision
was approved by the Wisconsin Supreme Court. Ableman led a complaint
with the federal district court but the Wisconsin Supreme Court ruled that
such decisions had no eect across the state (Campbell, 1970).
The US Supreme Court, represented by Judge Roger Taney, ruled that if
state courts were able to overturn federal judgments on the application of
federal laws, the government would lose the ability to enforce federal laws.
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Inevitably, dierent states would provide their own interpretations of the
US Constitution and there would be no unied government established by
the Constitution. The power of the Wisconsin courts was limited by the US
Constitution, and they could not declare unconstitutional federal acts or
reverse decisions of federal courts (United States Supreme Court, 1859).
This decision did not prohibit blacks who legally found themselves
in free states from ling claims for freedom, and the federal agents, who
formally had the right to demand assistance from local authorities, faced
sabotage and even direct violence.
This decision was much more important for the development of
American constitutionalism. It created a precedent for the superiority of
federal laws over state laws and was a milestone in the formation of the
dual court system. In addition, the state’s right to nullify was denied by the
corresponding decision of the US Supreme Court.
The concept of nullication was initially associated not with judicial
practice but rather with disputes over prerogatives of the federal government
and the right of states to secession, as well as an economic conict between
the North and the South over customs taris (Huston, 2003).
Many southerners regarded taris as leverage from the North. As a
result, John C. Calhoun, a Senator from South Carolina, announced the
right of states to nullify, i.e., a refusal to apply federal laws in their territory.
The US Congress had the power to enact federal laws in the interests of all
the states, therefore the states could determine whether a particular law was
in their best interest. In case of a dispute about the constitutionality of laws,
each state could block its operation in its territory or hold a convention to
resolve the issue of nullication.
This theory was realized after the adoption of the new tari in 1832.
The convention in South Carolina nullied both taris and enabled local
authorities to enforce such nullication. At the initiative of President
Andrew Jackson, the US Congress passed a bill empowering the President
to use military and navy force to implement acts of the Congress. The Civil
War could have started as early as 1832.
Henry Clay, a Senator from Kentucky, proposed a compromise,
according to which taris should be gradually reduced from 1833 to 1842,
eventually reaching the level of 1816. However, both parties could not resist
symbolic actions. The US Congress passed the Compromise Bill and the
Force Bill on the same day as the South Carolina Convention nullied the
Force Bill (Mountjoy, 2009).
However, the ‘tight knot’ of economic interests and disputes over
supremacy was not resolved through tari changes. The status of territories
remained questionable. In the early 1830s, the US Congress made another
628
Roman Romashov, Ekaterina Petrova, Zurab Kalandarishvili y Victor Kovalev
American constitutionalism and the mid-19th-century nation
outrageous decision and banned the sale of federal lands in such territories.
Robert Hayne, a Senator from South Carolina, highlighted the need for
an alliance between the West and the South against the dictatorship of
the North since the latter took advantage of federal laws to restrict labor
migration to the West from the New England states, providing themselves
with cheap workers.
2. New territories and new challenges. Kansas on re and the
Dred Scott case
The economic development of California required the construction of a
transcontinental railroad, which promised great nancial benets. There
were two promising routes: from Illinois through Kansas and Nebraska in
the north, or from Louisiana through Texas and New Mexico in the south.
A potential change in the balance of free and slave states in the Senate
depended on the solution of this issue if the new territories were given the
status of states (Carlisle, 2008).
Stephen Douglas, a Democratic Senator from Illinois, proposed to
extend the Compromise Principle of 1850 to Kansas and Nebraska and
build a route through these states. The issue of slavery should be resolved by
the settlers themselves based on the principle of squatter sovereignty. For
slave owners, this meant removing the issue of slavery in the new territories
from the jurisdiction of the federal authorities and created prospects for
the spread of slavery and the maintenance of balance in the Senate. S.
Douglas reassured the Northerners that these states were not suitable for
plantation management, therefore the extension of slavery practices would
be unlikely. The thing is that both territories were located north of the
Missouri Compromise line, i.e. latitude 36º30’N.
The bill hardly passed the House of Representatives (113 in favor;
100 against) and was signed by President Franklin Pierce in 1854. When
the decision was transferred to the territories themselves, it provoked
outright violations of the law. In Kansas, clashes turned into real battles
(for example, near the village of Lawrence) and more than 200 people were
killed (Carlisle, 2008).
The new President J. Buchanan demanded the interim Governor to
adopt the state constitution, hoping that the legal consolidation of some
principles would end the ‘hot phase’ of the conict. Upon the invasion of
slavery supporters, a referendum was held which conrmed that all slaves
in Kansas preserved their status. After that, the Constitution was passed
that allowed slavery in Kansas. Considering numerous violations in the
referendum, the US Congress refused to include Kansas in the Union. Even
Stephen Douglas, who regarded it as a violation of settler sovereignty,
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Vol. 39 Nº 71 (2021): 621-632
opposed the Lecompton Constitution. Kansas was eventually adopted in
early 1861 as a free state before the beginning of the Civil War (Mountjoy,
2009).
President J. Buchanan, who came to power during a civil, constitutional
and partisan crisis (the conict between Kansas and Nebraska provoked a
split in the Democratic Party and the Whig Party; the creation of a regional
Republican Party representing the interests of the North and uniting the
northern branches of the Whigs and Democrats, as well as representatives
of the American Freedom Party), saw the only solution in the adoption
of an unambiguous legal decision that would resolve all the existing
contradictions and unite the parties with a binding precedent.
This decision was supposed to be a verdict in the Dred Scott v. Sanford
case, one of the most iconic cases in the history of the US Supreme Court
known not only by its signicance but also as the worst decision in the
history of the US Supreme Court (Schwartz, 1997).
In 1854, the dispute about the freedom of the slave Dred Scott (and his
daughter who was free by any law since she was born in a free state) and his
owner Irene Emerson reached the US Supreme Court, where it had been
considered until 1856 (Fehrenbacher, 1997). Indeed, this case had a clear
political component. Democrat J. Buchanan, who won the election with
considerable eorts, viewed this court decision as the only way to resolve
the constitutional crisis that was eroding the entire US state system. The
president asked his friend, Supreme Court Justice John Carton, to hear
the case before the inauguration. The northerner judges were pressured
to make a unanimous decision since a split, especially on a regional basis,
could only exacerbate the overall crisis (Baker, 2004).
The ruling by Supreme Court Justice Roger Taney was almost 200 pages
long (United States Supreme Court, 1857). R. Taney announced that “the
Founding Fathers did not include blacks and did not intend to include them
in the category of “US citizens”. Consequently, they could not appeal to the
rights and privileges listed in the Constitution, as well as to the instruments
of their protection, such as the federal court” (Chemerinsky, 2015: 722).
According to Taney, blacks, whether slaves or free, and the descendants
of former slaves could not sue at all. Furthermore, Taney believed that
the Missouri Compromise and all the subsequent compromises were
unconstitutional since they limited property rights provided by the Fifth
Amendment (Chemerinsky, 2015).
The decision was disastrous. Two Supreme Court Justices recorded
dissenting opinions. Justice McLean highlighted that there was no reason
and no indication in the text of the Constitution that blacks could not be US
citizens. When the Constitution was ratied, blacks had the right to vote in
ve out of 13 states. Taney’s decision was dictated by “prejudice rather than
law” (Chemerinsky, 2015: 771).
630
Roman Romashov, Ekaterina Petrova, Zurab Kalandarishvili y Victor Kovalev
American constitutionalism and the mid-19th-century nation
Judge Benjamin Curtis mentioned that since Taney had recognized
that blacks could not go to federal courts, the rest of judicial decisions
became null and void (obitur dicta) and did not create a binding precedent
(Chemerinsky, 2015).
Conclusions
The confrontation over the issue of human rights and the relationship
between the federal government and the states only intensied. The
northerners feared that Taney would go further and declare all the anti-
slavery laws unconstitutional. The northern press introduced the slavocracy
term, denoting a conspiracy of 347,000 slave owners to seize power over
a million-strong nation. The southern radicals expressed an opinion that
there would be a slave auction on the Boston Stock Exchange in ten years
(Mountjoy, 2009).
It was unclear how this precedent correlated with the “squatter
sovereignty” (popular sovereignty) defended by slave owners. During the
presidential election of 1860, A. Lincoln used this logical contradiction
against the Democratic candidate A. Douglas, saying that if Congress could
not prohibit slavery in the federal territory, then it would not delegate this
power (McClintock, 2008).
Our review has proved that the traditional view on the South (the
southerners defended the independence of their states) and the North
(the northerners supported the idea of a strong federal government) is
not fully justied. In the conditions of a growing constitutional crisis, both
parties used federal and local institutions as tools in their confrontation. In
this context, courts, Congress, and other entities lost their constitutional
signicance.
Nevertheless, this confrontation resolved several burning issues about
the relationship between the rights of states and the federal government
and revealed the extraterritoriality of the US army. In the long run, Taney’s
disastrous decision resulted in the Civil Rights Act of 1866 and the 14th
Amendment of 1868, which became the basis for the legal concept of
American citizenship.
By the middle of the 19th century, economic and political interests, gaps
in the US Constitution and legal concepts, complex precedents had woven
into a knot that could not be cut, as Buchanan wanted, by a purely legal
decision. It became clear at 4:30 a.m. on April 12, 1861 when the rst shells
fell on Fort Sumter.
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Acknowledgments
The reported study was funded by RFBR, project number 20-011-
00794 А.
Bibliographic References
BAKER, Jean H. 2004. James Buchanan: the American Presidents series: the
15th President, 1857-1861. Macmillan. New York, USA.
CAMPBELL, Stanley. 1970. The slave catchers: enforcement of the Fugitive
Slave Law, 1850-1860. The University of North Carolina Press. Chapel
Hill. NC., USA.
CARLISLE, Rodney P. 2008. Civil war and reconstruction. Infobase Publishing.
New York, USA.
CHEMERINSKY, Erwin. 2015. Constitutional law: principles and policies.
Wolters Kluwer. New York, USA.
FEHRENBACHER, Don E. 1997. The Dred Scott case: its signicance in
American law and politics. Oxford University Publishing. Oxford, UK.
GOLDSTEIN, Leslie Friedman. 2011. “A ‘Triumph of freedom’ after all? Prigg
v. Pennsylvania re-examined” In: Law and History Review. Vol. 29, pp.
763-796.
HURD, John. 1968. Law of freedom and bondage in the United States. Little
Brown and Company. Boston, MA.
HUSTON, James L. 2003. Calculating the value of the union: slavery, property
rights, and the economic origins of the civil war. The University of North
Carolina Press. Chapel Hill, NC., USA.
KACZOROWSKI, Robert J. 1986. “Revolutionary constitutionalism in the era of
the civil war and reconstruction” In: New York University Law Review.
Vol. 61, pp. 863-940.
KETTNER, James. 1978. The development of American citizenship, 1608-1870.
The University of North Carolina Press. Chapel Hill, NC.
LOCKLEY, Fred. 1922. “The case of Robin Holmes vs. Nathaniel Ford” In: The
Quarterly of the Oregon Historical Society. Vol. 23, No. 2, pp. 111-137.
MCCLINTOCK, Russell. 2008. Lincoln and the decision for war: the northern
response to secession. The University of North Carolina Press. Chapel
Hill. NC., USA.
632
Roman Romashov, Ekaterina Petrova, Zurab Kalandarishvili y Victor Kovalev
American constitutionalism and the mid-19th-century nation
MOUNTJOY, Shane. 2009. Causes of the civil war: the dierences between the
North and South. Infopress Publishing. New York, USA.
NADELHAFT, Jerome. 1966. “The Somersett case and slavery: myth, reality,
and repercussions” In: Journal of Negro History. Vol. 51, No. 3, pp. 193-
208.
SCHWARTZ, Bernard. 1997. A book of legal lists: the best and worst in American
law. Oxford University Publishing. Oxford, UK.
UNITED STATES SUPREME COURT. 1842. Prigg v. Pennsylvania, 41 U.S.
(16 Pet.) 539 (1842). Library of Congress. Available online. In: http://
cdn.loc.gov/service/ll/usrep/usrep041/usrep041539/usrep041539.pdf.
Consultation date: 10/12/2020.
UNITED STATES SUPREME COURT. 1857. Dred Scott v. Sandford, 60 U.S.
(19 How.) 393 (1857). Library of Congress. Available online. In: http://
cdn.loc.gov/service/ll/usrep/usrep060/usrep060393/usrep060393.
pdf. Consultation date: 10/12/2020.
UNITED STATES SUPREME COURT. 1859. Ableman v. Booth, 62 U.S. (21
How.) 506 (1859). Library of Congress. Available online. In: http://cdn.
loc.gov/service/ll/usrep/usrep062/usrep062506/usrep062506.pdf.
Consultation date: 10/12/2020.
VARON, Elizabeth R. 2008. Disunion: the coming of the American Civil War,
1789-1859. The University of North Carolina Press. Chapel Hill. NC.,
USA.
WIECEK, William. 1977. The sources of antislavery Constitutionalism in
America 1760-1848. Cornell University Press. Ithaca and London. NY,
USA.
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Esta revista fue editada en formato digital y publicada
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Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 71