Stephen A. Douglas and popular sovereignty

Stephen A. Douglas and popular sovereignty – former senator

Eric T. Dean, Jr.

Explosive struggles in the U.S. Congress over the expansion of slavery into parts of the Louisiana Purchase and the vast new expanses of western territory acquired in the Mexican war occurred from 1847 to 1861, when Stephen A. Douglas served as a senator from Illinois. As chairman of the Committee on Territories, Douglas helped to develop and champion popular sovereignty, as one of four alternatives proposed for dealing with the issue of slavery in the new territories added to the United States.

The doctrine of popular sovereignty was opposed to the more extreme northern and southern positions, which advocated direct federal control by Congress or the courts either to exclude (the “free soft” position) or to protect (the “common property” theory) slavery in the territories; it also differed from the Missouri Compromise alternative, which suggested further division of territory between free and slave states. Ruling out any congressional action on slavery in the territories, popular sovereignty left the decision regarding the “peculiar institution” to the people of the territories as a matter of local autonomy, with direct democracy to be exercised by territorial residents themselves. A presidential candidate, Lewis Cass, had originally advocated popular sovereignty as the solution to the territorial crisis in his “Nicholson Letter” of 1847. The doctrine later became closely associated with Senator Douglas in the 1850s as he helped incorporate it into the Compromise of 1850 and the Kansas-Nebraska Act of 1854.(1)

One major problem with popular sovereignty related to the question of when the doctrine would take effect. Would this local autonomy commence immediately when the territory was organized and opened for settlement, or would it take effect only when the fully-inhabited territory applied to Congress for statehood a number of years later? Such questions raised the matter of the territorial legislature’s power over the institution of slavery in the interim period between organization and statehood. Some early advocates had maintained that popular sovereignty would apply to the territories from the very time these areas had been organized and open for settlement. Others argued that territorial residents would only be entitled to full autonomy on application to Congress for statehood, and, until that time, the Constitution (under the “common-property theory”) protected slavery in the territorial phase. Southerners would thereby retain their “equal rights” to the territories and settlement by slaveowners would be encouraged. Consciously attempting to retain popular sovereignty’s appeal to both northerners and southerners in order to neutralize the slavery issue, Cass and Douglas argued that the issue of when popular sovereignty took effect must ultimately be decided by the Supreme Court.(2)

The doctrine was further tainted when Douglas, in patching together a politically workable Kansas-Nebraska Act in 1854, substituted the principle of popular sovereignty for the Missouri Compromise’s previous ban on slavery in the Louisiana Purchase north of 36 [degrees] 30 [minutes]. Many northerners, suspecting that the Illinois senator had made this adjustment in order to win southern support for an expected presidential bid, viewed popular sovereignty as a matter of political expediency and a backhanded attempt to convert previously free territory into eventual slave states. However, after Douglas led the effort in the Senate to defeat a proslavery constitution (one parading under the guise of popular sovereignty) for the Kansas territory, even his southern supporters turned against him and referred to popular sovereignty by the derisive term “squatter sovereignty.”

The ultimate failure of popular sovereignty was reflected in the outbreak of the Civil War in 1861. Although the doctrine’s proponents had hoped to prevent sectional strife, popular sovereignty had not only failed to avert civil war, but also seemed to exacerbate sectionalism by contributing to the formation of the first sectional party – the Republican party. This party’s victory in the presidential election of 1860 triggered southern secession.(3)

Hence, popular sovereignty did not fare well in its own day and it has been ridiculed or dismissed by historians who scorn Douglas and indict his doctrine on three counts: that it ran counter to both the territories clause of the Constitution (Article IV, section 3) and constitutional practice, which authorized Congress to legislate for the territories regarding the matter of slavery; that it was fundamentally amoral since, wherever popular sovereignty had been instituted in the history of the territories, slave states resulted; and that popular sovereignty involved political compromise and expediency rather than a “constitutional imperative.”(4)

Some historians have defended Douglas but these advocates have tended to discount Douglas as a serious constitutional theorist. In their view, Douglas, a man of action little given to introspection, was not a constitutional thinker or innovator. However, over fifteen years he did develop his ideas of popular sovereignty from a political policy into an imperfect but sincere quasi-constitutional principle. In 1848 Douglas showed no clear and consistent pattern in his thinking on the territories, but during congressional fights over establishing a territorial government for Oregon, he came to believe that the Missouri Compromise was dead as an operative principle for the territories and that the best policy was to leave control over domestic institutions to territorial residents. These debates taught Douglas that new ways of thinking had to be developed, and the result was a “transition to popular sovereignty”; after 1850, Douglas increasingly honed his concept of popular sovereignty into a constitutional principle. However, by characterizing popular sovereignty as “a nebulous and complicated principle, never too closely defined and always ambiguous. . . . an expedient as well as a principle,” Douglas’s defenders come perilously close to those verdicts more explicitly critical of the Illinois senator.(5)

Douglas’s doctrine of popular sovereignty needs to be reexamined in its proper constitutional law context, which leads to three conclusions. First, contrary to Douglas’s critics, popular sovereignty was not an “aberration” or a “political expedient” so much as it was a produce of the intellectual forces of the mid-nineteenth century, including Manifest Destiny in the 1840s, increasing democracy in the territories, and the general anti-institutional bias of the Jacksonian era. Second, contrary to Douglas’s supporters (from policy to one principle), there were actually two variants of popular sovereignty as expressed by Douglas: a “negative” version, which denied all external intervention in the affairs of a territorial government, and a “positive” version that emerged briefly in 1856-58, which acknowledged that territorial government was derived from national power, and sought to define a method for Congress to protect democratic procedures in the territories. Finally, in terms of legal doctrine, popular sovereignty was at a disadvantage because it competed with new principles of constitutional law that were instrumental in being aligned with sectional interests and sought to impose a single, national solution on affairs relating to slavery. That Douglas ultimately failed in his endeavor says more about the basic intractability of the territorial problem than about his shortcomings as a constitutional thinker.

To assess the doctrine of popular sovereignty in its proper historical context in constitutional law, one must begin with the first tenet of popular sovereignty, the doctrine of non-intervention, which provided that Congress had no authority under the Constitution to legislate for the territories in the sphere of domestic affairs and institutions, including the issue of slavery. Critics have often claimed that such a position had no constitutional legitimacy in that Article IV, section 3 of the Constitution authorized Congress to “make all needful Rules and Regulations respecting the Territory,” and Chief Justice John Marshall held that in legislating for the territories, “Congress exercises the combined powers of the general and of a State government.” However, the antebellum situation in the territories was a good deal more complicated than the Article IV argument would lead one to believe and involved competition between three different models: the Article IV model in which Congress legislated directly (presumably without any restraint) for the territories; the compact model based on the Ordinance of 1787 in which Congress, the territories, and new states were bound by a charter (or, as developed later, the Constitution itself); and the model based on rules provided by the law of nations regarding acquisition and governance of new territories.(6)

The American colonial system dated from October 1780, when the Confederation Congress first resolved that there should be national (as opposed to state) territories. Although Congress established a concurrent commitment that statehood was to be the destiny of national territory, the United States was placed in the position of having to establish, at least temporarily, an imperial system balancing the supervisory control of a central government with some measure of local self-government in the territories themselves. Congress responded to this challenge by developing a plan of government, the Ordinance of 1787 (better known as the Northwest Ordinance), which provided for two stages of self-government under congressional supervision and a guarantee of eventual statehood. Congress set requirements for voting and officeholding, and also reserved the right to disallow territorial legislation, but the Ordinance did not contemplate that Congress would legislate directly for the territories.(7)

The salient point concerning the Northwest Ordinance was that it constituted a “compact” between the original states and the “people and States” of the new territory that guaranteed certain individual rights (such as jury trial, habeas corpus, religious freedom) to settlers, corporate rights of self-government to the territory as a whole, and eventual statehood. The existence of such a compact raised a number of questions. Was this a separate “constitution” for the territories that would supersede the Articles of Confederation and the Constitution of 1787? Since the Northwest Ordinance did not call for actual congressional legislation for the territories, was Congress thereby prohibited from such a direct role? Moreover, was Congress in its indirect supervisory role (appointment of governors, ability to disallow the acts of territorial legislatures) controlled by the principles of the Ordinance’s articles of compact or by the Constitution itself? Did the Ordinance create certain vested rights (freedom of religion, jury trial, slavery predating the compact) that would limit the power not only of Congress, but of territorial and future state legislatures?

The Ordinance of 1787 eventually fell into disuse for a number of reasons. Although it provided for close congressional control through the powers of appointed governors in the first stage of government, the demand for autonomy and democracy in the territories led to a rapid deterioration of executive power, increased popular participation in local government, and led to a lapse of congressional oversight. The Ohio statehood movement of 1802 (in which Congress imposed conditions on Ohio statehood, thus abrogating the Northwest Ordinance’s guarantee of territorial autonomy in this process as well as equality with the older states, which were not subject to any such conditions) and the Toledo War of 1835 over the Ohio-Michigan border (in which Congress ignored the Ordinance’s prescribed boundary between Michigan and Ohio) made it clear that Congress itself would not be constrained by the compact provisions of the Northwest Ordinance and would feel free to adjust boundaries in the district and impose conditions on new states in enabling acts as it saw fit.(8)

State and federal courts generally held that the Northwest Ordinance’s compact provisions (particularly regarding slavery, individual rights, and freedom of navigation) would be displaced by any contrary provision in the U.S. Constitution or any contrary provision in a new state constitution. This view was based on the theory that the new state and Congress had, by common consent, decided to eliminate that specific provision. In an 1838 federal case, the presiding justice endorsed the common consent theory, but constructed so many qualifications that one could see that the compact provisions became virtually defunct: the first part of the Ordinance relating to temporary government had no “constitutional standing” and could be changed at any time; for the portion of the Ordinance that was part of the compact, any provision also guaranteed by the U.S. Constitution was superseded and, with statehood, “such parts as were designed to produce a certain moral and political effect” – for instance, provisions on rights of conscience, due process of law, the guarantee against excessive bail – would be abrogated. Seemingly the only portions of the Ordinance that remained intact were the guarantee of free navigation and the prohibition against slavery, both of which could be eliminated by a state constitution approved by Congress. In an 1843 case, the U.S. Supreme Court went even further by holding that the Ordinance had been completely superseded by Louisiana’s state constitution, and, in 1850 the Court finally declared that the Northwest Ordinance had never had an independent existence as a compact since it had been displaced in 1787 by the U.S. Constitution.(9)

The concept of the Northwest Ordinance as a constitution for the territories, defining the individual and collective rights of territorial residents as well as the powers of Congress, had thus been abandoned. With the gradual demise of the Ordinance as a constitutional document, a legal void was created. In the sectional crisis of the 1840s, the creative energies of a variety of figures including John C. Calhoun and Salmon P. Chase as well as Douglas responded to the challenge of establishing constitutional boundaries for congressional power and territorial rights.

Stephen A. Douglas was a product of both the frontier democracy that had pushed territorial policy in the direction of more democracy and autonomy as well as the emergence of the Supreme Court’s doctrine of dual federalism, which treated the existence of the states with their reserved powers as a limitation on federal authority. With a reinvigorated state sovereignty, certain subjects were marked out as exclusively within the jurisdiction of the states and beyond the reach of the national government. Thus, the legal trend by the 1830s had turned away from the central control of the federal government and more toward local autonomy.(10)

The senator from Illinois seemed to attribute his own belief in popular sovereignty to his experience on the frontier. Born in Vermont in 1813, Douglas migrated to Illinois when he was twenty years old and before his twenty-first birthday was appointed a state’s attorney. In December 1833, he wrote a letter to his family back East: “I have become a Western man, have imbibed Western feelings principles and interests and have selected Illinois as the favorite place of my adoption.” Within the next decade, he was elected to the state legislature, and was appointed register of the Springfield Land Office, Illinois Secretary of State, and an associate justice of the Illinois Supreme Court. He was elected to Congress in 1843 and to the U.S. Senate in 1847 at the age of thirty-three. This rapid and impressive rise to power and prominence was typical of the energetic and turbulent Jacksonian years. An avid disciple of Andrew Jackson most of his life, Douglas became more devoted to Jacksonian democracy as his own career developed. Jacksonian political rhetoric relentlessly invoked “the people,” and advocated that the popular will should determine the choice of public officials and the formation of public policy. Thus, for Douglas popular sovereignty was a product of its time, and in this sense was legitimate and sincere, rather than merely a matter of political expediency.(11)

It is clear that Douglas was addressing the need to develop a viable constitutional doctrine for the territories. The foundations for his thinking are also clear, but it is important to recognize that Douglas’s doctrine of popular sovereignty did not develop from “policy to principle” on a straight line over time. On the contrary, it appeared in two variants: negative (complete autonomy) and positive (congressional oversight) versions. Douglas’s negative version of popular sovereignty, as it emerged in the late 1840s, was very simple: each jurisdiction should have as complete control as possible (subject only to the Constitution) over its domestic institutions – its judiciary system, school system, banking system, elective franchise, taxation policy, relations between husband and wife, parent and child, guardian and ward, and slavery. In Douglas’s own words, “whenever you put a limitation on the right of any people to decide what laws they want, you have destroyed the fundamental principle of self-government.” In the 1845 debate over the admission of Iowa and Florida as new states, Douglas argued against congressional determination of the propriety of the new states’ constitutions by suggesting that territories were already states, and had a right to be admitted into the Union. Douglas, maintaining that state equality would be offended by congressional interference, pointed out that the original thirteen states did not submit their constitutions to Congress, that the first states admitted to the Union after ratification of the Constitution were not required to present their constitutions to Congress for approval, and that the framers never dreamed that Congress would review state constitutions under the Guarantee Clause. Although Douglas’s famous Freeport Doctrine was not officially pronounced until the 1858 Senate Debates with Abraham Lincoln, the ideas explicit in this doctrine can be traced back at least to 1850.(12)

Nor was Douglas’s version of popular sovereignty a stalking horse for slavery. He firmly believed there were natural limits to the area into which slavery could expand, and these limits would be determined by laws of nature, climate, production, and self-interest rather than by an arbitrary geographical line established by Congress. In 1850, four years before the repeal of the Missouri Compromise, Douglas maintained that these natural limits and the will of the local population were more important than the Ordinance of 1787 or the Missouri Compromise line in excluding slavery from the North. The “natural limits” theory thus explains Douglas’s apparent inconsistency in supporting extension of the Missouri Compromise line during the late 1840s: he believed that the Missouri Compromise line was a mere superfluity and that the will of the people, in addition to the laws of nature, would determine the issue of slavery.(13)

One particular weakness in Douglas’s explication of the relationship between the Constitution and the territories was his inability to specify the exact legal basis for his theory of popular sovereignty. At times he seemed to indicate that popular sovereignty was a variety of common law, or “higher law,” or might be based on the new states clause of the Constitution. Usually he spoke more abstractly of “the great fundamental principle that the people are the source of all power.” In an attempt to ground his ideas more firmly in constitutional principle, and in response to the Dred Scott decision, which seemed to challenge his doctrine of popular sovereignty by indicating that the Constitution in certain respects would protect slavery in the territories, Douglas wrote an essay for Harper’s Magazine in 1859. Trying to show that popular sovereignty had an historical foundation in the constitutional theory of colonial America, Douglas drew an analogy to the relationship between the British imperial government and the American colonies, pointing out that one grievance of the colonies against the Crown was that the colonists regarded slavery as a purely domestic institution over which they should have total control, while the Crown attempted to interfere in this sphere. Douglas argued that the repeal of the Stamp Act had included the provocative assertion by the Crown that, although it was repealing the act, it had the right to legislate on matters of “domestic relations” and “internal polity.” Douglas contended that the American founders viewed territories as equivalent to states that deserved the same control and autonomy over domestic institutions as had traditionally been granted to the states. Thus, he concluded that the Republican party and certain elements of the Democratic party were historically incorrect in asserting that the federal government was obligated to control slavery in the territories, either to prohibit it entirely or to protect it completely.(14)

Douglas’s colonial analogy, while apt and relevant to some degree, had two weaknesses. First, it tended to overlook the fact that Madisonian popular sovereignty was intended to create an extended republic in which the federal government would be the instrument and agent of all the people and not quite the “alien force” that Douglas depicted. Second, Douglas’s analogy did not fully come to terms with the basic paradox that the colonies had themselves generally been the creatures of royal or proprietary charters in the seventeenth century. By focusing on mature colonies in the late eighteenth-century imperial system, Douglas used a flawed analogy to the problem of creating territories.

This anomaly – the fact that a territorial phase is by definition to some degree a state of probation – led Douglas to develop a more positive or interventionist concept of popular sovereignty during the Kansas crisis from 1856 to 1858. This effort, in stark contrast to his somewhat doctrinaire pronouncements of the 1840s and his later Freeport Doctrine, defined the exact conditions that attached to territorial government, and developed a federal role to intervene in limited, discrete ways to protect democratic processes in the territories.(15)

Despite his rhetoric, which often seemed to advocate the absolute autonomy of local communities, Douglas’s doctrine of popular sovereignty from the outset included conditions or reservations. According to statements made by Douglas at various points in his political career, popular sovereignty in the territories was to be exercised by “competent authority. . . . subject to the Constitution and our forms of government,” or the “fundamental principles of our Government” by “bona fide inhabitants with intent of making [the territory] their permanent home,” and only if they were a “settled, homogeneous people.” Who was to decide what was “competent authority,” or what “our forms of government” or the “fundamental principles of our Government” were? What was a “settled, homogeneous people,” and what exactly did the Constitution require? Would a territorial government that suppressed free speech and the right to jury trials or that instituted polygamy as a domestic institution be tolerated?

Such questions became more than theoretical exercises during the struggle over the Lecompton Constitution in 1857-58, when proslavery and free-state forces within Kansas organized competing governments and constitutions (the Lecompton and Topeka constitutions) and each sought admission for the state under their own jurisdiction. At this point, Douglas for the first time seemed to realize that democracy in the territories might be more than an abstract, romantic concept, and that it might involve competing factions and dashing values. The challenge was to devise an approach that protected democratic process while preventing Congress from simply imposing its own will on the territorial government.(16)

This positive variant of popular sovereignty constituted a radical departure from Douglas’s earlier pronouncements. In specifically denying that a territorial government could be sovereign, it presented an abeyance theory, which stated that sovereignty was held “in trust” by the federal government for the territory. Thus, a territorial government was derived from national power and required prior congressional authorization before any territorial convention could draft a constitution. Congress was given specific control of the process of forming a territory by being authorized to determine the requisite population and boundaries for the territory, and could further intervene to pass statutes assuring fair voting procedures (it could obtain information on elections, require popular ratification of constitutions, and make it a crime to interfere with voting). In addition, Congress was granted the authority to accept or reject by discretion any territorial constitution that had not been previously specifically authorized.(17)

This agenda constituted a remarkable reversal of Douglas’s earlier suggestion that territories were equivalent to states and could demand admission to the Union as a matter of right without having Congress review their constitutions. It is noteworthy for its resemblance to Reconstruction efforts to protect voting rights in the South, and to Warren Court efforts to intervene to protect democratic process in the states. Unfortunately, this version of “positive” popular sovereignty disappeared as soon as the issue of the Lecompton constitution had been resolved.(18)

Douglas’s efforts to develop some type of positive involvement for Congress in order to nurture territorial government was doomed on two counts. First, Douglas’s off-stated conviction that the Supreme Court constituted the final authority on the Constitution, and his utter deference to the judiciary seemed to militate against Congress involving itself in a constitutional review of territorial government. Second, while review of territorial constitutions by Congress could be generally justified on the basis of the new states clause (Article IV, section 3), Douglas was unable to articulate a narrow, conservative standard for review as positive popular sovereignty began to resemble the interventionist approaches advocated by the free-soil or common-property forces. Fearing that Congress might be catapulted back into a situation similar to that which triggered the Missouri crisis in 1820-21, Douglas backed away from this version of popular sovereignty. By 1859, he had retreated to his Freeport Doctrine and engaged in furious debates in Congress over whether the Dred Scott decision had rendered popular sovereignty null.(19)

In assessing Douglas’s doctrine of popular sovereignty, one must consider the criticisms that his policy was unconstitutional, amoral, and political. Some of Douglas’s harshest critics contend that Article IV, section 3 of the Constitution clearly authorized Congress to legislate for the territories (including the issue of slavery) and that the Supreme Court under John Marshall had confirmed this power. Such criticism overlooks the fact that Congress, while retaining indirect control and a supervisory role, generally did not legislate directly for the territories in domestic affairs during the antebellum period. Even the first stage of the Northwest Ordinance scheme of government allowed for a governor and three judges who would adopt the laws of other states. Only after the Civil War had considerably consolidated the powers of the federal government did Congress begin to intervene directly in territorial affairs as a matter of course. Similarly, it was only after the Civil War that the Supreme Court unequivocally repudiated the idea of territorial sovereignty and, even then, the Court was unwilling to conclude that such congressional power rested on Article IV alone. Nationalistic antebellum constitutional scholars did not contemplate direct federal legislation in domestic affairs for the territories. The original prohibition of slavery contained in the Ordinance of 1787 was part of a compact (between Congress and the people and settlers of the new states) and was not originally viewed as a mere congressional enactment in the nature of ordinary legislation. In view of these arguments, the case against popular sovereignty based on Article IV and congressional power over the territories is not as compelling as it has usually been portrayed.(20)

Douglas’s territorial policy has been condemned as amoral since it allowed the spread of slavery into new territories (if the people should make such a decision). Despite his professed indifference on the matter, Douglas believed that climate would prevent the expansion of slavery into the new western territories. In addition, his doctrine of popular sovereignty was a product of Manifest Destiny an earlier form of the imperial vision that had not yet incorporated racial prejudice as part of its dogma. It focused on the corporate rights of local communities without being explicitly concerned with the protection of individual rights, but was not a type of majoritarian democracy that imposes a coercive will on the minority.(21)

As for popular sovereignty being attacked as lacking in constitutional legitimacy, Douglas’s article for Harper’s Magazine is crucial. It drew an analogy between the rights of territorial residents under popular sovereignty and the rights claimed by American colonists against the British government in the eighteenth century. In the years prior to the American Revolution, it is clear that a federal theory of empire emerged that recognized colonial autonomy in local matters. Since one can draw an analogy between the colonies of the British Empire and the territories in nineteenth century America, Douglas was correct in arguing that there was a precedent for territorial autonomy in domestic affairs.(22)

Furthermore, a number of contemporary historians, in response to the contention that law was a force destructive of community, have argued that law was used by the community in the revolutionary era to oppose and defeat the imperial law of Great Britain. While some historians claim a large difference between “whig law” based on the seventeenth-century English constitution and Douglas’s idea of unfettered local autonomy under popular sovereignty, his colonial analogy did point to the dangers of undivided sovereignty and unrestrained power in the national legislature. In the eighteenth century, American colonials rejected Blackstone’s assertion that Parliament had undivided sovereignty, and, whether they realized it or not, partisans of the free-soil position in the 1850s were tending to revive this theory, which would become fully operative in the U.S. territories through the Insular Cases of 1900.(23)

As for the assertion that Douglas’s theory of popular sovereignty was “tainted by politics” and that Douglas was inconsistent, it is important to remember that the U.S. party system had developed amid disputes over interpretations of the Constitution dating from the time of Hamilton and Jefferson. The Fourteenth Amendment was initially written as a political platform for the Republican party in 1866, and the failure of civil rights enforcement during Reconstruction was due in part to poor or inexact draftsmanship, which may have resulted from compromise in Congress in order to create a politically acceptable amendment. Nor is consistency necessarily required of great statesmen: Thomas Jefferson, who wrote the Kentucky Resolves of 1798, attempted as president to enforce the embargo. John C. Calhoun, who as a cabinet member in the Monroe government thought Congress had the power to pass the Missouri Compromise and exclude slavery from a portion of the territories, later developed his common-property theory, which held quite the opposite view.(24)

The year 1836 was critical in U.S. constitutional law, for it saw the emergence of a radical southern defense of slavery based on the Fifth Amendment that prompted in turn the development of northern antislavery constitutional ideas that utilized the Fifth Amendment to attack slavery. The sectional conflict created new instrumental uses of the law that attempted to enlist the Constitution and the branches of the federal government to promote a sectional agenda: the Republican party put its faith in Congress to legislate slavery out of the territories, while southerners looked to the Supreme Court to declare that the Constitution protected slavery, or to Congress to pass a slave code to protect the peculiar institution in the territories. These sectional theories repudiated the consensus of the Jacksonian years that slavery must be excluded from politics in order to maintain harmony between the sections.(25)

On the other hand, popular sovereignty was very much a product of the Jacksonian era for it reflected the democratic anarchy that exalted unrestrained individual initiative over privilege and institutions. Jacksonian intellectuals turned to mass democracy as a means of sweeping away the vestiges of traditional authority because they believed that the common man in his natural, untutored state was a direct recipient of the divine message. This view of government and society fell victim to the Civil War, which resulted in the victory of a generalized “doctrine of institutions,” and led to the demise of anti-institutional individualism in all its forms. The failure of popular sovereignty as well as the historical disrepute into which it has fallen should be seen as due not to some constitutional defect in the theory itself, but rather to the fact that it was attempting to mediate between sectional forces that refused to be tamed. Popular sovereignty was competing with dynamic, instrumental concepts of law that had been harnessed to these sectional interests and could not be suppressed.(26)

The success of popular sovereignty depended not only on the absence of acrimonious disputes on policy matters pertaining to territorial affairs, but also on the development of a precise method by which Congress could oversee territorial affairs, intervene to protect democratic process, and yet refrain from intervention in substantive matters relating to domestic institutions. Douglas made a brief attempt through his conception of positive popular sovereignty to achieve this goal, but ultimately retreated from the effort. Despite Douglas’s failings, the much maligned senator for Illinois deserves to be remembered for the fervor of his convictions as well as his devotion to the Union:

I will stand on the great principle of popular sovereignty, which declares the right of all people to be left perfectly free to form and regulate their domestic institutions in their own way. I will follow that principle wherever its logical consequences may take me and I will endeavor to defend it against assault from any and all quarters.(27)

1 For the Madisonian concept of popular sovereignty see Gordon Wood, The Creation of the American Republic, 1776-1787 (New York, 1969) and Edmund S. Morgan, Inventing the People The Rise of Popular Sovereignty in England and America (New York, 1988). For popular sovereignty in the 1850s see Robert R. Russel, “Constitutional Doctrines with Regard to Slavery in Territories,” Journal of Southern History 32 (November 1966): 466-86; David Potter, The Impending Crisis, 1848-1861 (New York, 1976), 57-8; Don E. Fehrenbacher, The Dred Scott Case; Its Significance in American taw and Politics (New York, 1978), 137-40; Robert R. Russel “What Was the Compromise of 1850?” Journal of Southern History 20 (1956): 292-309; Idem., “The Issues in the Congressional Struggle Over the Kansas-Nebraska Bill, 1854,” Journal of Southern History 29 (May 1963): 187-210; Roy F. Nichols, “The Kansas-Nebraska Act: A Century of Historiography,” Mississippi Valley Historical Review 43 (1956): 187-212; and Harold M. Hyman and William M. Wiecek, Equal Justice Under Law: Constitutional Development, 1835-1875 (New York, 1982), 130-6.

2 Congressional Globe, 31 Cong., 1 sess., 1116 (June 3, 1850); Congressional Globe, 34 Cong., 1 sess., Appendix, 797 (July 2, 1856); Congressional Globe, 34 Cong., 1 sess., Appendix, 847 (July 9, 1856).

3 William E. Gienapp, The Origins of the Republican Party, 1852-1856 (New York, 1987), 75; Fehrenbacher, The Dred Scott Case, 517.

4 Fehrenbacher, The Dred Scott Case, 142, 146; Stephen B. Oates, With Malice Toward None: The Life of Abraham Lincoln (New York, 1977), 121.

5 Robert W. Johannsen, Stephen A. Douglas (New York, 1973), 221, 224-5, 240, 256, 440, 492-3; George Fort Milton, The Eve of Conflict: Stephen A. Douglas and the Needless War (New York, 1934), 155; Glen Huron Seymour, “An Analysis of the Political Principles of Stephen A. Douglas” (Ph.D. diss., University of Illinois, 1929); and Potter, The Impending Crisis, 330.

6 American Insurance Company vs. Canter, 1 Peters 511, 546 (1828).

7 Arthur Bestor, “Constitutionalism and the Settlement of the West: The Attainment of Consensus, 1754-1784,” in The American Territorial System, ed. John Porter Bloom (Athens, 1969), 14; Allan G. Bogue, Thomas D. Phillips, James E. Wright, eds., The West of the American People (Itasca, 1970); Robert F. Berkhofer, Jr., “Jefferson, the Ordinance of 1784, and the Origins of the American Territorial System,” William and Mary Quarterly 29, no. 2 (April 1972): 231-62; Jack Ericson Eblen, The First and Second United States Empires: Governors and Territorial Government, 1784-1912 (Pittsburgh, 1968); Peter S. Onuf, Statehood and Union: A History of the Northwest Ordinance (Bloomington, 1987).

8 Onuf, Statehood and Union, 68-83, 97-106; Eblen, The First and Second United States Empires, 71-4, 102, 114, 128, 138.

9 Walter C. Haight, “The Ordinance of 1787,” Publications of the Michigan Political Science Association II, no. 8 (September 1897): 1-60; Spooner v. McConnell, 1 McLean 337, 22 Fed. Cas. p. 939, Case No. 13,245 (1838); Permoli v. First Municipality, 3 How. 589 (1843); Strader v. Graham, 10 Howard 82 (1850).

10 Ray Allen Billington, America’s Frontier Heritage (Albuquerque, 1963), 135-89; Benjamin E Wright Jr., “Political Institutions and the Frontier,” in Sources of Culture in the Middle West, Backgrounds versus Frontier, ed. Dixon Ryan Fox (New York, 1964), 29; Allen Johnson, Stephen A. Douglas: A Study in American Politics (New York, 1908), 161; Fletcher M. Green, Constitutional Development in the South Atlantic States, 1776-1860: A Study in the Evolution of Democracy (New York, 1971), 199, 300; Harold M. Hyman and William M. Wiecek, Equal Justice Under Law: Constitutional Development, 1835-1875 (New York, 1982), 84.

11 Robert W. Johannsen, ed., The Letters of Stephen A. Douglas (Urbana, 1961), 3; Johnson, Stephen A. Douglas, 16, 69, 163; Gerald M. Capers, Stephen A. Douglas: Defender of the Union (Boston, 1959), 6; Johannsen, Stephen A. Douglas, 137-8; Milton, The Eve of Conflict, 19; Marvin Meyers, The Jacksonian Persuasion: Politics and Belief (New York, 1957), 18.

12 Congressional Globe, 28 Cong, 2 sess., 284 (February 13, 1845); Congressional Globe, 30 Cong., 2 sess., 192 (January 9, 1849); Congressional Globe, 31 Cong., 1 sess., Appendix, 369-70 (March 13, 1850); Congressional Globe, 35 Cong., 1 sess, 15 (December 9, 1857); for the Freeport speech of 27 August 1858 see Paul M. Angle, ed., Created Equal? The Complete Lincoln-Douglas Debates of 1858 (Chicago, 1958), 152.

13 Congressional Globe, 31 Cong., 1 sess., Appendix, 366, 367, 370 (March 13, 1850); Congressional Globe, 35 Cong., 2 sess., 1258 (Feb. 23, 1859). Regarding the Ordinance of 1787 see Congressional Globe, 31 Cong., 1 sess., Appendix, 369 (March 13, 1850); regarding the Missouri Compromise see Cogressional Globe, 31 Cong., 1 sess., Appendix, 370 (March 13, 1850).

14 Congressional Globe, 30 Cong., 2 sess., 314-5 (January 22, 1849); Congressional Globe, 31 Cong., 1 sess., 343 (February 12, 1850) [the “great fundamental principle”]; Congressional Globe, 33 Cong. 1 sess., 276, 280 (January 30, 1854) [“higher law”]; Harry V. Jaffa and Robert W. Johannsen, eds., In the Name of the People: Speeches and Writings of Lincoln and Douglas in the Ohio Campaign of 1859 (Columbus, 1959), 58-61, 75.

15 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter (New York, 1961), 107, 241, 295-7.

16 Congressional Globe, 31 Cong., 1 sess., Appendix, 372 (March 14, 1850); Congressional Globe, 34 Cong., 1 sess., Appendix, 795 (July 2, 1856); Congressional Globe, 35 Cong., 1 sess., 505 (February 1, 1858).

17 Congressional Globe, 34 Cong., 1 sess., 851 (April 10, 1854); Congressional Globe, 35 Cong., 2 sess., 1246 (February 23, 1859). For the specifics of congressional control under this new variation of popular sovereignty see Congressional Globe, 34 Cong., 1 sess., Appendix, 796 (July 2, 1856); Congressional Globe, 34 Cong., 1 sess., Appendix, 843 (July 9, 1856); Congressional Globe, 35 Cong., 1 sess., 14 (December 9, 1857); Congressional Globe, 35 Cong., 1 sess., 50 (December 16, 1857); Congressional Globe, 35 Cong., 1 sess., 919 (March 2, 1858).

18 United States v. Reese, 92 U.S. 214 (1876); Baker v. Carr, 369 U.S. 186 (1962); Jeremiah S. Black, Observations on Senator Douglas’s Views of Popular Sovereignty, As Expressed in Harper’s Magazine, for September, 1858 (Washington, 1859), 15-6.

19 Congressional Globe, 35 Cong., 2 sess., 1255 (February 23, 1859).

20 For the repudiation of the concept of territorial sovereignty see First Nat. Bank of Brunswick v. Yankton, 133; for equivocation on Article IV see Downes v. Bidwell, 182 US. 244 (1900), and DeLima v. Bidwell, 182 US. 1 (1900), 196; William Rawle, A View of the Constitution of the United States of America (Philadelphia, 1825), 227.

21 Robert Johannsen, “Stephen A. Douglas and the American Mission,” in The Frontier, the Union, and Stephen A. Douglas (Urbana, 1969); Potter, The Impending Crisis, 340-2; Eric Foner, “Politics, Ideology, and the Origins of the American Civil War,” in Politics and Ideology in the Age of the Civil War (New York, 1980), 46.

22 Earl Pomeroy, The Territories and the United States, 1861-1890 (Seattle, 1947), 97; Reginald Horsman, The Frontier in the Formative Years: 1783-1815 (New York, 1970), 103.

23 Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, 1967), 173; Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-1776 (New York, 1972), 274-5; John Phillip Reid, In a Defiant Stance: The Conditions of Law in Massachusetts Bay, the Irish Comparison, and the Coming of the American Revolution (State College, 1977), 72; Jack P. Greene, “From the Perspective of Law,” South Atlantic Quarterly 85 (1986): 56.

24 Richard Hofstadter, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780-1840 (Berkeley, 1969); Eric L. McKitrick, Andrew Johnson and Reconstruction (Chicago, 1960), 326-63; Fehrenbacher, The Dred Scott Case, 109.

25 Jacobus TenBroek, The Antislavery Origins of the Fourteenth Amendment (Berkeley, 1951), 17.

26 George M. Fredrickson, The Inner Civil War: Northern Intellectuals and the Crisis of the Union (New York, 1965), 8, 20; William E. Nelson, “Changing Conceptions of Judicial Review: The Evolution of Constitutional Theory in the States, 1790-1860,” University of Pennsylvania Law Review 120, no. 6 (June 1972): 1166-85.

27 Congressional Globe, 35 Cong., 1 sess., 17 (December 9, 1857).

Eric T. Dean, Jr., formerly practiced law and is a Ph.D. candidate in history at Yale University.

COPYRIGHT 1995 Phi Alpha Theta, History Honor Society, Inc.

COPYRIGHT 2004 Gale Group