Themes of the American Civil War

Notes
1.
Quoted in M. Kammen, A Machine that Would Goof Itself The Constitution in American
Culture (New York, 1986), p. B. Ackerman, We the People Foundations (Cambridge, MA, 1991). The best exposition of this gradual educative process remains HM. Hyman, A More
Perfect Union The Impact of the Civil War and Reconstruction on the Constitution (New York. Michael W. McConnell, The Forgotten Constitutional Moment 11 Constitutional
Commentary 115 (1994–95), makes an interesting argument that the period from Reconstruction to the New Deal followed a failed constitutional moment and has all the hallmarks of a constitutional transformative moment on its own account. J. Harvie Wilkinson, Our Structural Constitution 104 Columbia Law Rev. (2004), p. arguing that to forsake structure fora purely rights-based view of the Constitution is to forsake the genius and subtlety of the Framers vision as well L. Levy, Constitutional Opinions Aspects of the Bill of Rights (New York, 1986), p. 134. CF. Hobson and RA. Rutland, eds, The Papers of James Madison (Charlottesville, VA) XII, pp. 197–210. AR. Amar, The Bill of Rights and the Fourteenth Amendment 101 Yale Law Journal (1992),
p. 1265. WM. Wiecek, The Sources of Antislavery Constitutionalism in America (Ithaca, NY, analyzes the underlying beliefs of abolitionist writers who believed that the Bill of Rights was an entitlement of all Americans and a source of power to the federal government rather than a restraint. In addition to Madison’s speech in the House of Representatives on June 8, 1789, see Federalist
Papers 10 for evidence of his mistrust of state majorities. On the drafting and adoption of the Bill of Rights, Levy, Constitutional Opinions, chapter 6, B. Schwarz, The Great Rights of
Mankind (New York, 1979), and J. H. Hutson, The Bill of Rights and the American
Revolutionary Experience J. N. Rakove, Parchment Barriers and the Politics of Rights in
M. J. Lacey and K. Haakonssen, eds, A Culture of Rights The Bill of Rights in Philosophy, Politics
and Law (1791, repr. Cambridge, MA, 1991). John C. Miller, Crisis in Freedom The Alien and Sedition Acts (Boston, MA, 1951).
12.
Corfield v. Coryell, 4 Wash. CC. 371 (1823). Historians dispute whether this was intended to be a collection of rights to be enjoyed anywhere or simply a passport to whatever the states offered their own citizens, irrespective of whether it fell below that minimum. Was it a few absolute rights, or abroad one including civil and potentially political rights P. Lucie,
Freedom and Federalism Congress and Courts, 1861–1866 (New York, 1986), argues abroad reading, E. Malz, Fourteenth Amendment Concepts in the Antebellum Era 32 American
Journal of Legal History (1988), a narrow one.
13.
Barron v. Baltimore, 7 Pet. (32 US) 243 (1833), held that the Bill of Rights was a limit on the federal government but not on the states. It was challenged by the understandings of those in the antislavery movement who argued that Americans were entitled to enjoy rights anywhere in the Union and to call on the protection of the federal government. J. TenBroek, The
Antislavery Origins of the Fourteenth Amendment (Berkeley, CA, 1951). The extent to which the US. constitution was proslavery is disputed by E. Malz, The Idea of the Proslavery Constitution 17 Journal of the Early Republic (1997). See also Marshall L.
DeRosa, The Confederate Constitution of 1861: An Inquiry into American Constitutionalism
(Columbia, MO, 1991). It has been observed that slavery itself was not a condition of membership for new states. In the light of reality and all other aspects of the document it does not seem a risk. The text is set out and analyzed in CR. Lee, The Confederate Constitutions
(Westport, CT, 1973). A. Bestor, State Sovereignty and Slavery A Reinterpretation of Proslavery Constitutional
Doctrine, 1846–1860,” 57 Illinois State Historical Society Journal (1961).
16.

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