Guest Essayist: David J. Shestokas


“Tell them to obey the laws and uphold the Constitution.”
Stephen A. Douglas, deathbed instructions for his sons, June 3, 1861[1]

Stephen Douglas’ instruction to his sons to uphold the Constitution should have been quite clear. He had spent three decades in public life, including 18 years in the United States Congress. He had given hundreds if not thousands of speeches on the critical constitutional issues of his day:  organization and admission of new states and the regulation of slavery in territories purchased from France and won in war with Mexico.

An examination of Douglas’ thoughts on the Constitution needs the context of his lifelong competition with Abraham Lincoln, and the meteoric trajectory of his career. Douglas had constitutional thoughts, but these thoughts derived more from politics rather than legal training, morality or philosophy.

For nearly three decades Abraham Lincoln and Stephen Douglas were competitors, in love, courtrooms and politics. They were both transplants to Illinois, Lincoln from Kentucky in 1831 and Douglas from Vermont in 1833. Douglas had dated Mary Todd before she married Lincoln. They battled in court, Lincoln as defense counsel and Douglas as prosecutor. For thirty years they were political rivals in the Illinois legislature, the United States Congress and ultimately as candidates for president in 1860.

When Douglas arrived in Illinois he was a young man in a hurry. Within a year he became a state prosecutor, and in the following six years he would serve as Illinois Secretary of State, and be appointed Associate Justice of the Illinois Supreme Court at the tender age of twenty-seven. After two years on the court, he was elected to the United States House of Representatives, and at age 34 became the junior United States Senator from Illinois. He sought the Democrat nomination for president in 1852 and 1856. He was nominated by a fractured party in 1860. He died seven months after the presidential election of 1860, only 48 years old. He had come in second in the popular vote to Abraham Lincoln.

Constitutional and Political Questions Facing Stephen Douglas

Douglas arrived in the Senate in the middle of the Mexican-American War. The War’s end left the United States with vast new territory and Douglas’ Senate Committee on Territories grappling with the constitutional and political implications. Constitutional questions revolved around the extent of Congress’ power in the new territory and the expansion of slavery.

Politically, the southern slave states pressed for slavery’s expansion into the new territories and demanded that new states admitted to the Union from the territory be equally divided between slave states and free states.

Stephen Douglas was clearly ambitious. He had one eye on the White House; the other was on the Pacific Ocean. These visions for himself and for his country would find expression in his explanation of a crucial constitutional distribution of government power. He would espouse a constitutional doctrine to meet his political needs:  Popular Sovereignty.

The Concept of “Popular Sovereignty”

The North and South had conflicting views about congressional power to regulate slavery in the new territories. The Northern view was that Congress could regulate and even outlaw slavery in the territories, as it had done beginning in 1787[2] with the Northwest Ordinance. Congressional regulation had continued with the 1820 Missouri Compromise, defining some areas as free, some as slave.

Despite this history, the Southern view was that owners of property, could legally bring any property, including slaves, anywhere in the territories and that Congress lacked the power to prohibit possession of slaves in the territories. This North and South conflict was troublesome for Douglas’ aspirations for the White House, as he calculated his own need for Northern and Southern support to achieve that goal.

As a middle ground, Douglas became a proponent of allowing the residents of the territories to decide the question of slavery for themselves. In Senate debates and public speeches he extolled the virtues of this concept as “Popular Sovereignty”.[3] Douglas pushed Popular Sovereignty as the solution, both for himself and the country. Beginning with his work on the Compromise of 1850, which resolved issues of Texas, New Mexico, California and Oregon and continuing with the Kansas-Nebraska Act of 1854, Popular Sovereignty would, in Douglas’ words:  “…triumph & impart peace to the country & stability to the Union.”[4]

Stephen A. Douglas, Popular Sovereignty and the Supreme Court

Douglas’ apparently elegant solution to questions of congressional power in territories that were not yet states did not live up to his prediction. He had failed to define the territorial residents who would exercise “Popular Sovereignty”. The territory of Kansas would be flooded, not with settlers, but with abolitionists and slavery supporters in efforts to control the exercise of “Popular Sovereignty” in Kansas on the issue of slavery. Over the next five years, at least 56 people would die in violent confrontations between the factions.

While Popular Sovereignty was not working well in Kansas, it suffered another setback with the Supreme Court’s infamous Dred Scott Decision.[5] In that case, beyond declaring that blacks were not and could not be citizens, the Court asserted that Congress and territorial governments were powerless to interfere with the property rights of slave owners. The Court agreed with the Southern position on the limits of congressional power, in effect declaring the idea of territorial Popular Sovereignty null and void.

“Bloody Kansas” and Dred Scott placed Douglas in an awkward position, both politically and legally. During their famous debates of 1858, Abraham Lincoln ridiculed Douglas as a proponent of “Squatter’s Sovereignty” referring to the Kansas immigrants who had flooded the territory, and asked Douglas to defend “Popular Sovereignty” in light of Dred Scott.

Douglas’ response to Lincoln revealed the depth of his constitutional thought. He explained how Popular Sovereignty could be used to get around the Supreme Court. According to Douglas, if a territory remained opposed to slavery, despite the Supreme Court’s ruling, all it had to do was not pass any laws protecting slavery. Douglas was now promoting a strategy for a territory to effectively nullify the Supreme Court.

A year later, in the September, 1859 issue of Harper’s Magazine, Douglas would publish a long article in an attempt to reestablish the constitutional credibility of Popular Sovereignty in the territories. The article harks back to the issues of local government involved in slavery dating to 1699, how local control of the slave trade contributed to the American Revolution, the 1784 role of Thomas Jefferson in proposing territorial government, and attempts to show that the Founders thought that citizens of territories had the same rights to self-government as citizens of States. In today’s constitutional language, Douglas made an “original intent” argument on behalf of his concept of Popular Sovereignty.

While it may have been the most carefully constructed constitutional argument of his career, the nation was careening toward civil war. Stephen Douglas was trying to rehabilitate his own reputation in advance of the 1860 presidential election.

Stephen Douglas during his undeniably consequential career did much to give shape to the continental reach of the United States. In the months before his death he actively worked on behalf of the Union cause, and on the issue of Civil War, he was quite clear:

“There are only two sides to the question. Every man must be for the United States or against it. There can be no neutrals in this war; only patriots or traitors.

The meaning of his deathbed instruction for his sons to uphold the Constitution is unclear.  He had once argued that Popular Sovereignty was a constitutional fix for the country’s problems.  He would later argue Popular Sovereignty could undo the effect of a Supreme Court decision. Douglas was a practical man of accomplishment and ambition. His actions through his career were clearly steered by the chance conditions of the moment, rather than by fixed principles. The same can be said about his constitutional thought.

David Shestokas, J.D., is a former state prosecutor and author of Constitutional Sound Bites, explaining America’s Founding Documents in a 21st Century presentation. The Spanish edition Cápsulas Informativas Constitucionales is the first book to explain American founding principles for the 36 million Americans more comfortable in Spanish than English. Follow him on Twitter:  @shestokas and visit his website: Constitutional and Legal Education and News.

[1] Roy Morris, Jr., The Long Pursuit, Harper Collins, 2008, pg. 216

[2] The Northwest Ordinance banned slavery in the Ohio Territory that would become the states of Ohio, Indiana, Illinois, Michigan, and Wisconsin. It was enacted by the last Congress under the Articles of Confederation and reenacted in 1789 by the First Congress under the Constitution.

[3] These conflicting positions developed despite the Constitution’s Art. I, Section 3 provision:  “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”

[4] Resolving these questions would also move forward another item on the Douglas agenda, a transcontinental railroad running through Chicago. Not so incidentally, Douglas owned property along the proposed route.

[5] 60 U.S. 393 (1856)

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    In a word, Stephens was a pragmatist. A position that ultimately proves untenable to hold and defend. Hence the progressive and modern movement where nothing is absolute therefore everything tenuous and changing. Therefore, any all positions and beliefs are equal and valid, except the belief that there are absolute truths.

    Enter the new age of tolerance where one is required to accept and embrace all ideas as being equal. The only thing that is intolerable is believing in absolute truths.

    Interesting essay. It gives me a new perspective on Stephens that is appreciated.

    Thank you. PSD


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