Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

American politics in the 1850s were dominated by the polarization over slavery, which was reflected in the increasingly menacing tone of the national political “conversation” and the retreat into starker sectionalism of political allegiances. Attempts at political compromise over this national sickness initially appeared promising, but ultimately provided only bandages, not cures. When politics failed, the doctors of the law on the Supreme Court stepped in with a massive dose of controversial and untried constitutional medicine in the Dred Scott decision. When that, too, failed, the only means left to stop the spread of the poison was through the extreme surgery of military conflict that cost the blood of over 600,000 Americans. The South wanted amputation of what it saw as the source of the poison—the North’s crusade of political domination. The North rejected amputation and wanted to save the whole patient through radical surgery to cut out the evil—Southern slavery.

The political bandages appeared in the form of “popular sovereignty,” a principle embedded in the Compromise of 1850 and the Kansas-Nebraska Act of 1854. Its architect in 1850 was Henry Clay, but as the light of that former star of American politics dimmed, the concept was appropriated by the rising “Little Giant” Stephen Douglas, Senator from Illinois. The concept suited a political slogan perfectly. It was ambiguous and allowed every participant in the debate to read into it what he wanted it to mean. It was all-American. Who, after all, could oppose the right of the people to self-government? It sounded intellectual, thereby providing—as Plato acidly wrote in The Republic—that tool by which those who truly wield political power in a democracy ingratiate themselves with the ignorant masses, flattery of the latter’s self-delusion of wisdom. It was historical, in that it reflected the actual experience of many Americans in organizing politically the newly-settled territories during the westward movement of American empire.

The concrete issue was the potential expansion of slavery into new territories, specifically those obtained as a result of the war with Mexico. The Missouri Compromise of 1820 had worked because it effectively prevented the spread of slavery beyond existing states into the greatest portion of the new territory obtained through the Louisiana Purchase. The new addition from the Mexican War lay below the exclusion line and, technically, opened a vast area to the “peculiar institution.”

Broadly speaking, the idea of popular sovereignty was to allow the settlers of the territory that would be organized in that conquered area to decide whether their eventual state would be slave or free. The territorial legislature would make that decision. Congress would not interfere in the process by legislation, as had been the case with the Missouri Compromise in prohibiting slavery in those territories. But the unanswered question was just when the people in the territory could take action for or against slavery. Douglas and many other Northern Democrats believed that the territorial legislature could act immediately to permit or prohibit slavery, if it wished. Southerners argued that slavery was a matter of states’ rights. Therefore, the territorial legislature could act only when the people wrote a constitution and submitted it to Congress with their petition for statehood. Until then, slaveholders were American citizens who had the right to take their property into the territory just as everyone had.

 It is that contention over the timing of the territorial government’s decision about slavery and the protection of slave-holding settlers until that point that Jefferson Davis addresses in this part of his speech. The decision to prohibit slavery could only be made by states and “incipient states.” Senator Davis’s position is the South’s position—incipient states are those territories about to become states, not those in less mature political development.

In 1854, Stephen Douglas used popular sovereignty to push through the bill to organize the Nebraska Territory (including Kansas and Nebraska) as the last piece from the Louisiana Purchase. Douglas wanted the territory organized for both broad political reasons and narrower personal financial reasons. Douglas was a heavy investor in Western lands and Chicago real estate and wanted the central route (through Nebraska Territory) for the anticipated transcontinental railroad, rather than the Southern route. That required settlers in that area. To lessen Southern opposition to organizing a territory that had to be “free” under the Missouri Compromise of 1820, Douglas’s proposed bill extended popular sovereignty into that area and, thereby, allowed the potential introduction of slavery into territory from which it had been excluded. That, in turn, enflamed Northern anti-slavery sentiment. Douglas further agreed to a formal division of the territory into Nebraska (expected to be settled by Iowans and free) and Kansas (expected to be settled by Missourians and slave). His efforts pleased formerly suspicious Southerners, as shown by the back-handed compliment he received from Senator Dixon of Kentucky, “Sir, I once recognized you as a demagogue, a mere manager, selfish, and intriguing. I now find you a warm-hearted and sterling patriot.”

As any smart lawyer knows, carefully-contrived ambiguity in structuring “the deal” to get it done often merely delays the day of reckoning over the matter. The reality of life burns away the semantic fog of the conceptual artifice and exposes its essential weaknesses and inherent conflicts. The Framers of the Constitution understood that careful avoidance of outright mention of slavery in that instrument might buy time for a national resolution of the issue or a natural withering of the institution, but that euphemisms could not change what slavery was.

 So it went with popular sovereignty. Theory clashed with reality in Kansas, and reality mercilessly battered theory. Popular sovereignty induced a rush to “get there first,” draft a constitution (with or without participation by the territorial legislature), establish one’s doctrine about slavery as part of that constitution, and submit the matter to Congress. The result in Kansas was the Lecompton (pro-slavery) Constitution, which Douglas and others considered illegitimate since it had excluded anti-slavery participants. Meanwhile, in a pre-cursor of events to come, settlement of the issue of slavery in the territories, or at least in Kansas, was proceeding through a campaign of violence that earned it the sobriquet “Bleeding Kansas.” These are the “evils” to which Jefferson Davis refers in his speech. Meanwhile, Douglas’s new-found friends from the southern side of the Mason-Dixon Line soon reverted to their earlier estimations of his character.

At the end of his speech defending popular sovereignty, Davis notes the disappointed hopes of backers of popular sovereignty, “I looked then, as our fathers had looked before, to the settlement of the question of what institutions should exist there, as one to be determined by soil and climate, and by the pleasure of those who should voluntarily go into the country.” Notably, many Northerners and Southerners alike agreed with that premise. At least silently, it was supposed that the extension of slavery into the cold states of the North or the hot, arid vastness of the Southwest was highly unlikely. But the expected demise of slavery had failed to occur previously, with the invention of the cotton gin and the expansion of cotton growing in the early 19th century. Moreover, for the opponents of slavery, the moral dimension of the question prohibited any extension of the institution. As Abraham Lincoln declared, the North was determined to give her emigrants “a clean bed, with no snakes in it.” For the South, meanwhile, the idea that the extension of slavery into all territories was permissible represented redress for injured pride. More symbolic, it was, at last, a refutation of the moral condemnation that had underlain prior laws that were grounded on the supposed need to quarantine the South and its social institutions.

May 15, 2013 – Essay #63

Read Jefferson Davis’ Reply in the Senate to Stephen Douglas here:

 An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at:

2 replies
  1. Ron
    Ron says:

    Thanks for your enlightening comments Prof. Knipprath. Your second paragraph is especially powerful, in that one could substitute the ambiguous words “progressive” and “living constitution” for “popular sovereignty” and relate your subsequent comments to today’s debates over the direction of our country. It has taken many decades for the realities of life to expose the true meaning of those ambiguous words; hopefully, it is not too late.

  2. Joerg Knipprath
    Joerg Knipprath says:

    Thank you for your generous comment, Ron. I fully agree with your analogy of “progressive” and “living constitution.” Like “popular sovereignty,” they are benign-sounding while providing cover for policies that are dangerous to social stability. There will be more to say about those two concepts as the readings in this series continue into the 20th century.


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