Interpreting popular sovereignty: a historiographical essay.
The scholars who have studied popular sovereignty have centered their analysis on three critical issues. First, they have sought to explain the origins of the doctrine. While students of the sectional controversy have generally agreed that popular sovereignty emerged in the late 1840s, few have explored any antecedents to the doctrine as articulated in the aftermath of the Wilmot Proviso. Second, scholars have sought to understand what popular sovereignty actually meant. Pragmatic politicians looking for a way to neutralize the Wilmot Proviso imbued popular sovereignty with an ambiguity that papered over deep internal discord within the political system. By declining to define when a territory could legislate on the slavery issue, politicians hoped to make the solution palatable to northerners and southerners alike and avoid offending their respective--and differing--positions on the issue of territorial sovereignty. Third, scholars have chronicled how popular sovereignty worked when put into practice, especially after passage of the Kansas-Nebraska Act in 1854. The latter two issues have received the lion's share of attention from students of the Civil War era.
Unfortunately, historians have approached the study of popular sovereignty with a narrow field of view, focusing almost solely on the period between 1847 and 1860, when northern Democrats supposedly created the doctrine and used it as a tool to create consensus over the slavery question. Over fifty years ago, Roy E Nichols challenged scholars to reexamine the Kansas-Nebraska Act, positing that they "had failed to trace adequately the connections between antecedent situations and accomplished fact, the process of becoming" (3) Today's historians need to discover the process of becoming through which popular sovereignty developed. The prevailing interpretation suffers from two weaknesses. First, most scholars have ignored evidence that shows the idea of popular sovereignty as an ever-present issue in debates over slavery in the territories during the eighty years prior to the Civil War. In almost every debate from the creation of the Northwest Territory forward, politicians grappled with whether the power to prohibit slavery rested with Congress or the people residing in the territories. Second, most historians have viewed popular sovereignty solely as a political contrivance designed to circumvent the slavery issue. According to the standard narrative, the principle had immense political appeal because of its ambiguity; few if any of its proponents defined how it would operate and when a territory could legislate on slavery. The prevailing interpretation correctly identifies the political value of popular sovereignty, but in its bias against the doctrine and its narrow scope, it omits a critical dimension of the debate that evolved during the nineteenth century, which explains how the expansion of slavery played a key role in American politics long before the 1850s. (4)
Popular sovereignty became linked to the larger debate over states' rights versus nationalism that intensified during the antebellum era. Different interpretations of the nature of the Union prevailed between the sections; northerners believed that the people themselves had created the Constitution, while southerners insisted that the states had created the federal government as their common agent, leaving the states with ultimate authority. Likewise, Americans could not agree on the correct interpretation of popular sovereignty, the doctrine designed to settle the issue of slavery in the territories, for precisely the same reason.
Northerners like Stephen A. Douglas declared that the people--at any time acting through their territorial legislatures--could permit or prohibit slavery. Southerners affirmed that territories became imbued with sovereignty only when drafting a constitution and seeking admission to the Union. In keeping with their states' rights interpretation of the Constitution, southerners believed, according to Don E. Fehrenbacher, "that the most legitimate embodiment of American sovereignty was a state convention drawn from and acting for the people." (5) Did popular sovereignty, then, rest in the masses or in the states, acting on behalf of the people? This was the question northerners and southerners feuded over, just as they disagreed over states' rights versus nationalism.
Popular sovereignty had an unintended consequence that neither side accurately predicted. Because neither North nor South could agree upon its meaning, it effectively "constitutionalized" the debate over slavery in the territories by mimicking the debate over the nature of the Union. (6) The issue of when or if a territory could ban slavery became a matter of constitutional interpretation, a process which culminated in the Dred Scott case, when the Supreme Court affirmed the southern interpretation of popular sovereignty. Antislavery northerners, however, rejected the high court's pronouncement, which they considered immoral. At the same time, many southerners began to believe that the federal government--acting as their common agent--would have to take measures to protect slave property in the territories. The idea of popular sovereignty, and indeed the Union, crumbled under the ever-increasing weight of cumbersome constitutional rhetoric over the slavery issue. By showing how the debate over slavery divided the nation into rigid sectional blocs, a broader history of the popular sovereignty idea provides essential insight into how and when the Union sundered.
Most historians date the origins of popular sovereignty to 1847, when it emerged as an alternative to the Wilmot Proviso that moderates in the North and South could embrace. Throughout the year 1847, Democratic politicians introduced various solutions to dispose of the poisonous Wilmot Proviso. (7) Pennsylvania's James Buchanan, for example, advocated extension of the Missouri Compromise line--a settlement that for some time seemed the most likely course of action. (8) But another Pennsylvanian, Vice President George M. Dallas, advocated leaving the decision on slavery to the people of the territories themselves. In a conscious effort to distinguish himself from his rival Buchanan, Dallas criticized the extension of the Missouri Compromise in a speech given at Pittsburgh. In 1820, he argued, "men got together and talked of compromises, and made compromises, and one-half insisted on what they had no right to ask, and the other half submitted to that which they never should have submitted to." (9) The vice president instead called for the people of the territories themselves to settle the issue as they pleased. Dallas's modern-day biographer correctly cites the vice president as the first individual who expressed the popular sovereignty doctrine in detail in the post-Wilmot Proviso period. (10)
Most historians, however, cite Lewis Cass as the father of popular sovereignty. Cass, a Michigan senator with years of government service and an abiding interest in westward expansion, introduced the doctrine of popular sovereignty in a Christmas Eve, 1847, letter to the Tennessee politician Alfred O. P. Nicholson. Cass had crafted his statement carefully and had consulted numerous colleagues in Washington, knowing that Nicholson would ensure that the document gained the attention of the press. (11) Just weeks before the release of the Nicholson letter, he consulted with New York senator Daniel S.
Dickinson to introduce a series of resolutions in the Senate that advocated the popular sovereignty doctrine--a sort of trial balloon to gauge support for the compromise. (12) Cass had long held interest in the settlement of the West; he had served for over twenty years as the territorial governor of Michigan. Proposing a doctrine that embraced the ideal of self-government fit well with his political experience and his Democratic Party faith.
Although correct in its details, the traditional interpretation ignores decades of debate over what became known in the 1850s as popular sovereignty. Few historians have sought to examine carefully the doctrine's origins before 1847 beyond broad statements about the political theory of popular sovereignty itself. In the first significant study of the doctrine, the constitutional historian Allen Johnson pointed to some possible antecedents to the Cass pronouncement. Heavily influenced by Frederick Jackson Turner and his frontier thesis, Johnson argued that the "tap root from which popular sovereignty grew and flourished was the instinctive attachment of the western American to local government; or, to put the matter conversely, his dislike of external authority" (13) Johnson also noted that the idea of popular sovereignty had emerged in the republic's earliest days, though he provided scant detail on the doctrine's provenance. Nevertheless, he hinted at a crucial fact: northern Democrats in the late 1840s had merely given form and substance to an idea that had appeared in previous crises over slavery and the Union.
While Johnson correctly notes that the concept of popular sovereignty emerged before 1847, he merely sketched out the ideas in his brief article and his biography of Stephen Douglas. (14) Historians have not explored his ideas with further research; instead, almost every scholar of the antebellum period continues to date the origins of popular sovereignty to 1847. In the only study devoted exclusively to the doctrine, Milo M. Quaife expanded on Johnson's brief sketch but limited his scope to the fourteen-year period before the Civil War. (15) Quaife's monograph, a reprint of his doctoral dissertation, gives Cass almost exclusive credit for developing the idea of popular sovereignty. While men like Dallas and Dickinson may have contributed to its development, "it was left to Lewis Cass to perfect a theory for the disposal of the territorial issue." (16)
Quaife's major contribution rests in portraying the Cass formula as a response to the views of John C. Calhoun. Seeking to secure the Democratic nomination for the presidency, Cass devised a way to moderate Calhoun's radical views on slavery in the territories and unite the northern and southern wings of the Democratic Party behind a Cass banner. In a logical extension of his states' rights views, Calhoun had argued that neither Congress nor a territorial legislature could prohibit slavery; only when seeking admission to the Union could a territory pass judgment on the issue. (17) During the territorial phase, slavery would enjoy a sort of meta-constitutional status, whereby it essentially had federal protection. Northerners, including Cass, could not support the Calhoun thesis. Neither could many southerners. Cass hoped to rally moderate support on both sides of the Mason-Dixon Line to settle the slavery issue and secure his place in the White House.
Quaife acknowledges Cass's goal for uniting the Democracy, but he largely fails to see its implications for the success or failure of popular sovereignty itself. Portraying the North and South as two extreme factions, he underestimates the impetus for moderation in the late 1840s. Northerners gravitate toward the antislavery vanguard, in Quaife's narrative, while southerners endorse the views of Calhoun. Neither statement holds true, but in Quaife's depiction, as well as many modern interpretations, Cass's popular sovereignty holds no legitimacy as a solution to the crisis over the slavery issue because its progenitors sought short-term political expediency--an "artful dodge" on the issue of slavery in the territories designed to gain a northern presidential candidate southern votes. (18)
Subsequent historians would provide better explanations of how popular sovereignty emerged as the leading compromise solution. Chaplain W. Morrison offers perhaps the best chronicle of the political underpinnings of the doctrine in his essential study of the Wilmot Proviso. His analysis deftly describes how popular sovereignty developed in the minds of its northern Democratic proponents and how they fashioned the doctrine to appeal to northerners and southerners. He implicitly argues that one cannot understand the origins of popular sovereignty without grasping its meaning. Morrison argues that Dallas's speech at Pittsburgh in September 1847 provided the blueprint for popular sovereignty. Few disputed that a territory possessed the right to decide the slavery issue when applying for statehood, a statement that embodied the traditional southern position on popular sovereignty. Dallas's proposal, however, suggested "that settlers could decide the slavery question as soon as a territorial government was formed, prior to admission as a state." (19) On these terms, according to Morrison, southerners could use the last clause to claim that popular sovereignty merely affirmed the status quo, while northern Democrats with free-soil proclivities could interpret popular sovereignty as an essentially antislavery doctrine, since the Mexicans had already banned slavery in the territory. The ambiguity of the Dallas doctrine gave popular sovereignty intersectional appeal. More important, it maintained party unity at a time when the slavery issue threatened to divide the Democrats.
New York senator Daniel S. Dickinson's subsequent resolutions endorsing popular sovereignty erased the double meaning of Dallas's words, Morrison asserts, because Dickinson stipulated that territorial legislatures would have the power to address the slavery issue. Historians have not paid sufficient attention to this facet of the popular sovereignty debate. Calhoun and his allies believed this outcome worse than the Wilmot Proviso itself. Then Lewis Cass drafted his Nicholson letter, which restored the ambiguity to popular sovereignty in an effort to placate wary southerners and unite the Democracy. According to Morrison, the doctrine could not function without leaving the matter of when a territory could settle the slavery question open to interpretation. In this respect, Morrison largely agrees with Quaife in portraying popular sovereignty as a sort of political legerdemain.
Historians have excessively fixated on the ambiguity that northern Democrats gave to popular sovereignty. William W. Freehling, in his exhaustive study of the antebellum period, describes popular sovereignty as the Democrats' "favorite fudge"; a malleable doctrine that deferred potentially difficult decisions to a later date. (20) Most historians agree that Cass and Dallas crafted popular sovereignty in a way that evaded the real question--when the voters in a territory could make the call on slavery. But on this question hinged the entire slavery debate--and the political aspirations of the northern Democratic proponents of popular sovereignty. (21) If Congress could not, or should not, permit or prohibit slavery in the territories, then the citizens of the territories must possess that power. When could they exercise their right to self-government? This question had direct bearing on the overarching issue of whether slavery would expand into the territories or not. Investigating the history of popular sovereignty before 1847 gives greater insight into the debate over the doctrine's meaning in the decade before the Civil War. Prior to 1847, popular sovereignty had always operated in southern territories, as the terms of the Southwest Ordinance of 1790 and the Missouri Compromise gave citizens south of a geographical line the right to permit or prohibit slavery, with the expectation that they would allow it. Accordingly, the doctrine had always operated in terms favorable to slaveholders and by their rules. The southern proslavery consensus had protected the expansion of slavery into the Old Southwest. The acquisition of free territory, however, changed the nature of the debate by opening the possibility that popular sovereignty could permit slavery in a place where it once had been prohibited.
Yet not all historians have placed such disproportionate emphasis on the ambiguity of the popular sovereignty doctrine in the same way. In the first volume of his authoritative study of the crisis of the Union, Allan Nevins chronicles the development of popular sovereignty in the latter months of 1847, arguing that the Nicholson letter implied far less ambiguity than historians in the past (and the future) had recognized. True, while Cass stated that only "organized communities" within the territories could decide on the slavery issue, he did not specifically state what that phrase meant. He did argue, however, that slavery could exist in the territories "only by virtue of legislation by the Territorial governments." Indeed, in noting past experiments with self-government in frontier regions, Cass "could insist that self-government in embryo states was a peculiar and very proud Anglo-American doctrine." (22)
Nevins argues that the Cass doctrine meant territorial sovereignty, or what Calhoun and ultra southerners would derisively call squatter sovereignty--that the citizens of a territory possessed the right to decide the slavery issue at some point during the territorial stage. Two years after he wrote the Nicholson letter, and as Congress debated the Compromise of 1850, Cass specifically stated that popular sovereignty meant that the territories could legislate on the slavery issue. Few, if any, historians have expanded on Nevins's interpretation of Cass's Nicholson letter and the development of popular sovereignty in 1847 and 1848. In the finest study of slavery and westward expansion written in recent years, for example, Michael A. Morrison colorfully notes that "Cass was as silent as the dumbest oracle on the precise stage of territorial development at which inhabitants were to regulate slavery." (23)
Although Cass's own behavior during the election year of 1848 suggests that he intended to leave unanswered the question of precisely when territories could exercise their popular sovereignty, the Nicholson letter hints at his view that territorial legislatures could prohibit slavery if they desired. (24) Nevins emphasizes this point in his analysis of the introduction of popular sovereignty. More recently, historian James L. Huston has framed the ambiguity of popular sovereignty in a way that supports the Nevins interpretation. The Cass doctrine clearly vested the power to decide the slavery issue in the settlers of the territories. "But what was missing was a definition: in popular sovereignty, who were the populace--who were the people?" (25) Could the people exercise their right to legislate on slavery at any time, as northerners increasingly believed, or could they act only when drafting a constitution and seeking statehood, as the South insisted?
Northerners and southerners received the compromise doctrine of Dallas, Dickinson, and Cass with a diversity of responses. Historians have contrasted the popular sovereignty doctrine with the pronouncements of John C. Calhoun, who advocated a solution to the crisis over slavery in the territories that would have provided for federal protection of the institution during the territorial stage. Don E. Fehrenbacher provides the most cogent analysis of the Calhoun position, showing how he countered the Wilmot Proviso with his own reinterpretation of constitutional law concerning slavery in the territories. Wilmot's stance gave no concessions to the South. In Calhoun's mind, according to Fehrenbacher, he had to meet Wilmot's challenge to southern rights with an equally doctrinaire proviso. The South Carolinian "countered by proclaiming that slavery followed the flag into any and all acquired provinces." Because the individual states owned the territories, with the federal government acting as their common agent, the federal government had no right to prohibit holding any form of property legal in one of the states. Nor did a territorial legislature possess this right, for a territorial government was the creation of Congress. (26) Calhoun had formulated an antithetical response to the Wilmot Proviso on which he hoped the proslavery South would unite.
According to most historians, Calhoun's common-property theory on the status of slavery in the territories "became one of the cardinal tenets of southern orthodoxy." (27) Cass certainly perceived the potential of Calhoun's ideas in a South increasingly alienated by free-soil politics. The Whig Party had never united on the slavery issue, while the Democrats had maintained a considerable degree of party solidarity across sectional lines. (28) In sum, the Wilmot Proviso threatened to sunder the Democracy. Accordingly, Cass sought to reconcile the northern and southern branches of the Democratic Party with a moderate alternative to the Wilmot Proviso. Joseph G. Rayback reveals how Dallas, Dickinson, and Cass carefully gauged public opinion in the weeks before Cass issued his Nicholson letter. Both the Dallas speech and the Dickinson resolutions, according to Rayback, received favorable responses from moderate northerners and southerners. (29)
Moderate southerners, unlike the much studied and oft-quoted Calhoun, desired compromise. Only the most ardent free soilers of the North and the disciples of Calhoun seemed wary of popular sovereignty. Unfortunately, historians have underestimated the support that southern moderates gave to popular sovereignty. Rayback's assessment refutes the argument of Milo Quaife, who describes an intensely negative southern response to popular sovereignty, especially as outlined by Daniel Dickinson. Because Dickinson explicitly stated that territorial legislatures could determine the status of slavery, Quaife argues, southerners "concentrated a fire of adverse criticism against him, or rather against the doctrine contained in his speech." (30) Southern Democrats defied the New Yorker because he gave popular sovereignty an antislavery interpretation, but they still affirmed a states' rights version of the doctrine, which they believed would kill the Wilmot Proviso.
The ultimate test of the popularity of the Cass doctrine would come in the 1848 election season, which has received thoughtful treatment by historians. State-level politics during the election year, especially in the South, best illuminates the debate over popular sovereignty. Several southern states addressed the issue circumspectly, choosing to pass bland resolutions condemning the Wilmot Proviso and asserting southern rights. One state convention, however, engaged in a bitter debate over the meaning of popular sovereignty. In Alabama, ardent proslavery forces led by William Lowndes Yancey sought to derail the Cass campaign and the popular sovereignty platform by standing on Calhoun's ground concerning slavery in the territories. Yancey and Senator Arthur P. Bagby both rejected the notion that either Congress or a territorial legislature could prohibit slavery in the territories. (31)
Yancey failed in his efforts to make the Alabama Platform the Democratic Party doctrine in 1848, but as his most recent biographer has illustrated, the former senator's statement represented a comprehensive program for southern rights. Yancey intended to unite forces with Calhoun and the South Carolinians to create a pro-southern phalanx that northerners would have to respect. Calhoun injured his western friend's chances by refusing to allow the South Carolina Democrats to attend the convention. (32) Despite receiving favorable feedback from some southern politicians in the early months of the election year, Yancey lost critical support by the time the Democratic convention met at Baltimore in May. Calhoun's actions hurt the Yancey effort just as southerners began indicating willingness to compromise. Southern Democrats abandoned his ultra proslavery platform for the sake of party unity and embraced the Cass banner.
Though historians have certainly recognized the significance of the Alabama Platform to the ongoing debate over slavery in the territories, few have followed through on the platform's meaning to the popular sovereignty doctrine. Scholars have tended to consider popular sovereignty as a significant cause of Cass's defeat by the southern Whig Zachary Taylor as well as a repudiation of the Cass doctrine. (33) But as several historians have argued, the popular vote suggests that Taylor won in a close race in no small part because he hailed from the South. Southerners attuned to who would best protect their rights as slaveholders narrowly selected a president who owned slaves himself. Taylor carried eight slave states, while Cass won seven. (34) The South clearly did not present a united front on popular sovereignty or the debate over slavery in the territories, a point that historians have not sufficiently explored. Some southerners considered popular sovereignty an entirely suitable compromise doctrine, while men like Calhoun and Yancey viewed the doctrine as worse than the Wilmot Proviso. Some Whigs had showed measured enthusiasm for popular sovereignty, while others had rallied behind Delaware senator John Clayton's plan to let the Supreme Court adjudicate the issue. (35) Eventually, the idea of judicial review would become entwined with popular sovereignty, as proponents of the doctrine hoped the Supreme Court would define its meaning.
Though the idea of self-government in the territories had suffered mightily in the 1848 election, it reappeared less than two years later as a part of Henry Clay's grand sectional compromise. The Kentucky senator made popular sovereignty a critical component of his grand sectional adjustment designed to avert disunion in 1850. (36) Clay proposed that the residents of New Mexico and Utah determine the status of slavery for themselves--a statement that northerners and southerners could interpret as they pleased. Since California had already drafted an antislavery constitution, he argued that Congress should promptly admit it as a free state. Not only did Clay's California resolution infuriate southerners who believed that antislavery interests had effectively stolen the territory, so too did his implication that the institution would never exist anywhere in the Mexican Cession. Because Clay implied that the antislavery Mexican laws would remain in force under American rule and that the residents of New Mexico overwhelmingly supported them, slavery would never exist there. (37) Clay's 1850 plan bore similarities to the compromise he crafted thirty years earlier; in the Missouri Compromise, Clay proposed congressional nonintervention with slavery in the territories south of 36[degrees] 30', leaving the future of slavery in the hands of the people. The venerable Kentuckian did so believing that Missourians wanted slavery and that the territory would support it. His 1850 legislation reflected his belief that the people of the Mexican Cession did not want slavery. Interestingly, Clay's version of popular sovereignty, both in 1820 and 1850, used congressional power to uphold the supposed will of the people.
The Democratic Party, particularly its southern wing, would not accept the initial Clay project. Southern Democrats in particular believed that Clay's compromise would keep free territory free. They wanted to find a way to open free territory to slavery. Accordingly, congressional Democrats "reshaped the plan Clay intended to use to unite congressional Whigs into an essentially Democratic compromise," specifically a compromise that the South could support. What did this mean for the popular sovereignty doctrine? Again, Holt notes the Democrats' "blithe" abandonment of popular sovereignty after their defeat in the 1848 presidential contest. (38) In the course of negotiating the Compromise of 1850, however, popular sovereignty had reappeared as a possible component of a compromise program. Stephen Douglas claimed the mantle of popular sovereignty's champion from Lewis Cass and set out to reshape the compromise to his vision.
Douglas had not always supported popular sovereignty, but over the course of the tumultuous compromise session he became convinced of its expediency and subsequently took the lead in reaffirming the doctrine as the Democratic platform on the slavery issue. (39) Again southern and northern Democrats could not agree on the meaning of popular sovereignty, namely when the settlers of a territory could pass laws concerning slavery. In January 1850, after three years of evasive silence on the issue, Lewis Cass had finally stated that territorial legislatures possessed the right to determine the status of slavery. (40) Douglas concurred, provoking a flurry of criticism from some southern senators who insisted that a territory could address the issue only at the time it asked for admission to the Union. The southerners' strident objections to the Cass-Douglas version of popular sovereignty threatened the delicate compromise negotiations.
Douglas met their arguments with equal force. His biographer Robert W. Johannsen chronicles the Douglas rejoinder to his southern colleagues, noting that the Illinois senator insisted that the people of a territory alone could best determine their domestic affairs. (41) Several southern senators attempted unsuccessfully to amend the New Mexico bill to prohibit territorial legislatures from acting against slavery. Even after the Douglas bill gained passage in the Senate, a brilliant maneuver in the House of Representatives threatened to restore the legislative prohibition. Only after northern Democrats resorted to equally imaginative tactics did the House effort die. (42) As Johannsen argues, their efforts violated the spirit of popular sovereignty by practically affording federal protection to slavery. Douglas faulted their logic and opposed their methods, and in the end his version of popular sovereignty prevailed.
In spite of the voluminous record of the debates over the Compromise of 1850, the meaning of the compromise itself, especially pertaining to popular sovereignty, has perplexed historians for decades. Scholars have sparred over whether the compromise actually instituted the doctrine as law. In an influential article, Robert R. Russel surveyed twenty-two different college textbooks and found at least eleven different descriptions of the slavery provisions in the Compromise of 1850. Furthermore, significant disagreement existed over the definition of popular sovereignty, or "squatter sovereignty," as some ultra southerners derisively called the doctrine. (43) Russel forcefully--though not entirely correctly--argued that "Congress in the Utah and New Mexico acts gave the power to [pass laws concerning slavery] to the legislatures of the respective territories. No other method of exercising 'squatter sovereignty' can properly be wrung out of the acts." (44)
Other scholars have argued persuasively that the Compromise of 1850 did not provide an unqualified endorsement of popular sovereignty. Instead, it merely resurrected the inherent ambiguity of Cass's initial popular sovereignty formula in order to appease North and South. David M. Potter and Don E. Fehrenbacher both qualified Russel's conclusion by contending that the compromise's territorial provisions, in Fehrenbacher's words, "were open-ended--adaptable either to popular sovereignty or to the Calhoun property-rights doctrine, but legitimizing neither on an exclusive basis." (45) More clearly, the open-ended nature of popular sovereignty meant that northerners could state that the compromise allowed territorial legislatures to decide the slavery question, while southerners could claim, in the words of Potter, that they had "regained the principle so unwisely bargained away in 1820, the right of the people of any state to hold slaves in the common territories" (46) The final compromise arrangement virtually ignored the pronouncements of both Cass and Douglas that had removed the ambiguity from their doctrine--that popular sovereignty explicitly granted territorial legislatures the right to legislate on slavery.
Historians have failed to recognize that the labyrinthine negotiations over the meaning of popular sovereignty actually represented the inauguration of a new phase in the debate in which the judiciary would have to determine how the people could exercise their will. Someone would eventually have to decide whether the northern or southern interpretation would prevail. Harry V. Jaffa first hinted at the move among moderate Democrats to let the judicial branch determine the meaning of popular sovereignty, while subsequent scholars noted that the compromise made special provisions for the settlement of the slavery issue in the courts. (47) Several politicians had suggested shifting jurisdiction to the courts, most notably John Clayton of Delaware in his abortive Clayton Compromise of 1848. Senators frequently referred to the judiciary as perhaps the ultimate arbiter of the slavery issue during the debate over the New Mexico bill. (48) Lewis Cass himself suggested that the courts could act as the "final 'umpire"' on whether territorial legislatures could decide the issue. (49) Potter and Fehrenbacher both surmise that the politicians incorporated amendments into the bill to permit appeal to the Supreme Court on the slavery issue. (50) A consensus began to emerge among moderate politicians that the courts would have to adjudicate popular sovereignty's meaning. The arrangement would preserve the political value of the doctrine, while it would also keep Congress out of the decision. Presumably, popular sovereignty and congressional nonintervention would be maintained. This new phase in the evolution of popular sovereignty marks an important and too often unrecognized step in the constitutionalization of the debate over slavery in the territories.
The Compromise of 1850 represented an armistice, in the words of David Potter, that seemed at first glance to have provided a lasting settlement of the vexed issue of slavery in the territories but actually papered over lingering differences between the North and South. New Mexico and Utah both admitted the marginal presence of slavery within their bounds; New Mexico would not end slavery until an 1867 federal law mandated prohibition. (51) The agitation over slavery never entirely subsided. Only three years after the Compromise of 1850 became law, Congress took up another bill to organize the territory of Nebraska. And with the debate on that bill came the recrudescence of the battle over slavery in the territories.
Scholars have studied what became known as the Kansas-Nebraska Act--its origins and its meaning--nearly since it became law in 1854, a point that Roy E Nichols made abundantly clear in his seminal article. (52) Nichols, who dismissed popular sovereignty as a political contrivance that further destabilized the party system and viewed Stephen Douglas as a dangerous party hack, outlined the historiographical debate over the Kansas-Nebraska Act from the reminiscences of politicians who presided over the debate up to his fellow scholars. By the 1940s and 1950s, many scholars embraced the "revisionist" interpretation of the coming of the Civil War--that Americans fought a needless war in no small part because of the bungling ineptitude of the nation's politicians during the 1850S. Leadership had failed the Union, and the farce of popular sovereignty merely illustrated the paucity of principles in the nation's solons. Nichols certainly concurred in the revisionists' disdain for popular sovereignty; nevertheless, he provided a sound analysis of how historians have treated popular sovereignty in the Kansas-Nebraska debates.
The Kansas-Nebraska Act made popular sovereignty national policy. Where historians have debated the intent of politicians to establish popular sovereignty in the Compromise of 1850, no doubt exists that Douglas elevated his pet doctrine to the status of law in 1854. He did so, however, under pressure from Senate colleagues who demanded that the Illinoisan transform his initial legislation to meet their own aims. (53) Numerous historians, and a few contemporaries, have analyzed how a select group of southerners in Congress exerted pressure on Douglas to repeal the Missouri Compromise line. (54) David M. Potter somewhat unfairly argued that by the time the Kansas-Nebraska bill gained passage in Congress, "Douglas was not really in command of the situation." His colleagues had forced significant alterations in the bill, leaving Douglas unable "to prevent his political allies from defining his objective and his political opponents from defining the issue on which he won." (55) Robert Johannsen suggests that scholars have "exaggerated" the significance of their efforts; James Huston concurs, noting that Douglas desired repeal by the end of 1852. (56)
Douglas did understand, however, that too many southerners viewed popular sovereignty, especially as defined by the northern Democrats, as an antislavery doctrine. For their part, southerners demanded that Congress uphold their version of popular sovereignty. Key southerners saw the repeal of the Missouri Compromise line as the best way to give Kansas-Nebraska and popular sovereignty a pro-southern interpretation. Douglas reluctantly agreed. Party politics played a critical role in the movement for repeal of the Missouri Compromise line, particularly in the South. Historian William J. Cooper Jr. has thoroughly analyzed the actions of southern Democrats and Whigs in drafting a version of the Kansas-Nebraska Act that they would support. Southern Democrats lent their support to Douglas because "the ambitions of each meshed" The initial draft of the bill suggested the implicit repeal of the Missouri line. But southern Whigs forced the explicit repeal in hopes of reviving their party's chances in southern electoral politics. "Southern Democrats could not oppose" Kentucky senator Archibald Dixon's repeal amendment, according to Cooper, "without giving southern Whigs a political victory." (57) Southern Democrats certainly did not object to the outcome; indeed, it strengthened the appeal of popular sovereignty. The explicit repeal of the dividing line between free and slave territory mandated by the Compromise of 1820, however, and its replacement with popular sovereignty resurrected the slavery debate in its bitterest form.
In the fifty-five years since the Nichols article appeared, a small group of historians have attempted to revise the findings of earlier generations of scholars. Those who have chosen to investigate popular sovereignty and Kansas-Nebraska, however, have provided valuable new insights into how Douglas made the doctrine national policy. Robert R. Russel wrote a sequel to his essay on the Compromise of 1850, in which he evaluated how southerners came to support popular sovereignty in 1854, when many had condemned it just four years earlier. The key, according to Russel, lay in the repeal of the Missouri Compromise line. Southerners still wanted, and some demanded, that Congress recognize the Calhoun common-property territorial doctrine--their interpretation of popular sovereignty. Southern Whigs and Democrats alike eagerly desired the repeal of the Missouri Compromises slavery restriction. (58) Gaining the latter helped make the former palatable. In 1847 popular sovereignty had shown promise as a means of killing the Wilmot Proviso; seven years later, the doctrine seemed the perfect weapon to destroy the hated Missouri Compromise line.
Southerners did not know how to calculate the implications of Douglas's bill. Considerable differences of opinion existed and did not necessarily follow the now popular interpretation of border South moderation versus lower South extremism that historians have used to explain regional differences of opinion. Many southerners in the past had feared the effect of popular sovereignty as defined by northerners; that is, the right of settlers to legislate on slavery in the territorial phase. By 1854, some southerners wondered if applying the southern version of popular sovereignty would allow an influx of Yankees who would draft an antislavery constitution. Perhaps Kansas could become a marginally slave state if the initial settlers--many of them Missourians--could enact legislation protecting slavery within the territory. (59)
Historians have disagreed on how eagerly southerners gave their support to popular sovereignty in 1854. Russel argues that the repeal had little potential effect on whether the territories would become slave or free. The division of the territory into Kansas and Nebraska, however, strongly implied that Kansas would become a slave state while Nebraska would be free. (60) Based on a survey of congressional debates and the southern press, Avery Craven argued that southerners did not initially view the Kansas-Nebraska Act favorably. (61) More recently, Nicole Etcheson correctly contends that most southerners "knew a good thing when they saw it," perceiving that the Douglas bill confirmed the belief that southerners possessed the right to enter the territories on a basis of equality. (62) The division of the territory helped assuage wary southerners, but marrying popular sovereignty with the lifting of the Missouri Compromise restriction sealed the deal for the South. It made popular sovereignty a potentially proslavery tool. The Kansas-Nebraska Act, David Potter argued, forever poisoned the doctrine of popular sovereignty "by employing it as a device for opening free territory to slavery." (63) Michael Morrison likewise agrees that fusing repeal of the Missouri Compromise line with popular sovereignty destroyed the legitimacy of the doctrine: "Nebraska's critics looked with alarm and contempt at the dangerous attempts by the bill's supporters to pervert and appropriate the revolutionary legacy for their own base purposes." (64) Both historians correctly perceive that Kansas-Nebraska made popular sovereignty a potentially proslavery doctrine, but their condemnation of Douglas's move only illuminates the northern response. Southerners hailed the act as a vindication of their constitutional right to hold slave property in the territories.
Yet, popular sovereignty remained a nebulous doctrine, and so too did the ultimate solution to the conundrum of slavery in the territories. Four years after passage of the Kansas-Nebraska Act, the Supreme Court defined popular sovereignty in the case of Dred Scott v. Sandford. In his seminal study of the case, Don Fehrenbacher declared that the court had "struck a fierce judicial blow at the Douglas version of popular sovereignty." (65) Actually, the Scott decision dealt a fatal blow to the Cass-Douglas definition of the doctrine by upholding the southern interpretation. Moreover, it substantiated the Calhoun common-property doctrine regarding slavery in the territories. The Supreme Court defined popular sovereignty as the right of the people in a territory to determine the status of slavery when they drafted a constitution and asked for admission to the Union--and not a moment before. Territorial legislatures could presumably pass laws to protect slave property, but they could not prohibit slavery or restrict the right of a person to hold slaves as property within any territory.
The Dred Scott decision reflected the conundrum that states' rights southerners confronted in the face of the abolitionist surge; while they insisted that slavery was a local institution, the sanctity of slave property in the territories might require the federal government, as common agent for the states, to intervene. Of course northerners would claim that the southern conception of popular sovereignty destroyed the notion of nonintervention--and even the sovereignty of the people. Southerners, however, would refute the claim by interpreting the popular sovereignty doctrine through a states' rights lens, as Austin Allen has discussed in his study of the Scott case. (66) Slaveholders in the territories, as citizens of the slaveholding states and as residents in the common national domain, possessed the right to hold slaves as if they resided in their home state. When the territory became a political community by drafting a constitution and applying for statehood, they could legislate on slavery as they pleased. In this often vexing constitutional logic, the nexus of citizenship and states' rights versus nationalism played a critical role in the interpretation of popular sovereignty and slavery in the territories. Because the doctrine of popular sovereignty had transformed the debate over slavery in the territories into a matter of constitutional interpretation, northerners and southerners alike battled in stark terms for their version of constitutional law.
Northern Democrats like Douglas, who had hoped for a judicial determination on the meaning of popular sovereignty abhorred the opinion of the court and determined to resist a decision they believed made a mockery of self-government. One might expect southerners to have hailed the decision as vindication of their rights, yet most citizens of the South had a more sanguine response. Numerous southern observers presciently recognized that Kansas would become a free state and the North would ignore the Dred Scott decision's implications for popular sovereignty. Douglas himself had declared war against the Buchanan administration over the decision and the subsequent fiasco over the Lecompton constitution.
Although the Supreme Court defined popular sovereignty, northerners refused to heed its decision and allow the expansion of slavery. Southerners demanded the extension of slavery, though they eventually recognized that popular sovereignty remained an essentially antislavery principle. The doctrine promised neither side a sure outcome. By 1860, the failure of popular sovereignty as a proslavery doctrine and the election of a Republican president led southerners to question their future in the Union. The issue of slavery in the territories, namely the failure of the South to ensure the expansion of slavery, figured prominently into the debate over disunion. Popular sovereignty, a doctrine that seemed at first glance to embody the highest ideals of the revolution--the right of self-government--had become mired in the morass of slavery expansion. By investigating how the popular sovereignty policy evolved over time and mirrored the North and South's divergent views about slavery and the meaning of the Constitution, historians will better understand how the constitutionalization of the slavery debate played a key role in the coming of the Civil War.
I thank Adam J. Pratt and Rachel Shelden for their incisive comments on this work. I owe a special debt to William J. Cooper Jr., who read the initial draft and provided much sound advice.
(1.) Nicole Etcheson succinctly links the popular sovereignty principle with Jacksonian democracy; see her article, "The Great Principle of Self-Government: Popular Sovereignty and Bleeding Kansas" Kansas History: A Journal of the Central Plains 27 (Spring-Summer 2004): 14-29. See also Michael A. Morrison, Slavery and the American West: The Eclipse of Manifest Destiny and the Coming of the Civil War (Chapel Hill: Univ. of North Carolina Press, 1997), 96-99. The term "popular sovereignty" had origins in English law and politics; see Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: Norton, 1988).
(2.) See Willard Carl Klunder, "Lewis Cass and Slavery Expansion: 'The Father of Popular Sovereignty' and Ideological Infanticide" Civil War History 32 (1986): 293-317; Robert W. Johannsen, Stephen A. Douglas (New York: Oxford Univ. Press, 1973), 576-613.
(3.) Roy F. Nichols, "The Kansas-Nebraska Act: A Century of Historiography," Mississippi Valley Historical Review 43 (Sept. 1956): 196.
(4.) See Etcheson, "Great Principle of Self-Government" and Morrison, Slavery and the American West for the most recent interpretation of popular sovereignty.
(5.) Don E. Fehrenbacher, Sectional Crisis and Southern Constitutionalism (Baton Rouge: Louisiana State Univ. Press, 1995), 111. See also Austin Allen, Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court (Athens: Univ. of Georgia Press, 2006), 178-202.
(6.) Don E. Fehrenbacher uses this term in his magisterial study of Dred Scott v. Sandford. See The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford Univ. Press, 1978).
(7.) See David M. Potter, The Impending Crisis, 1848-1861, completed and edited by Don E. Fehrenbacher (New York: Harper & Row, 1976), esp. 63-89. For popular sovereignty and the election of 1848, see Joseph G. Rayback, Free Soil: The Election of 1848 (Lexington: Univ. Press of Kentucky, 1970), 113-21; and Joel H. Silbey, Party over Section: The Rough and Ready Presidential Election of 1848 (Lawrence: Univ. Press of Kansas, 2008), 50-53.
(8.) Philip Shriver Klein, President James Buchanan: A Biography (Univ. Park: Pennsylvania State Univ. Press, 1962), 202; Rayback, Free Soil, 114-15.
(9.) "Great Speech of the Hon. George M. Dallas, Upon the Leading Topics of the Day, Delivered at Pittsburgh, Pa." (Philadelphia: Times and Keystone lob Office, 1847), 15.
(10.) John M. Belohlavek, George Mifflin Dallas: Jacksonian Patrician (Univ. Park: Pennsylvania State Univ. Press, 1977). See also Chaplain W. Morrison, Democratic Politics and Sectionalism: The Wilmot Proviso Controversy (Chapel Hill: Univ. of North Carolina Press, 1967), 87-89.
(11.) For an account of Cass's presidential aspirations and the writing of the Nicholson letter, see Willard Carl Klunder, Lewis Cass and the Politics of Moderation (Kent, Ohio: Kent State Univ. Press, 1996), 175-82; Potter, Impending Crisis, 56-62. For the text of the Nicholson letter, see Washington Union, Dec. 30, 1847.
(12.) Rayback, Free Soil, 116; Potter, Impending Crisis, 71-72; Morrison, Democratic Politics and Sectionalism, 88-89; Milo Milton Quaife, The Doctrine of Non-Intervention with Slavery in the Territories (Chicago: Mac C. Chamberlin Co., 1910), 62-67.
(13.) Allen Johnson, "The Genesis of Popular Sovereignty," Iowa Journal of History and Politics 3 (Jan. 1905): 5.
(14.) Allen Johnson, Stephen A. Douglas: A Study in American Politics (New York: Macmillan, 1908), 161.
(15.) Quaife, Doctrine of Non-Intervention. Most scholars have used the terms "non-intervention" and "popular sovereignty" interchangeably; Quaife and Don E. Fehrenbacher, in his Dred Scott Case, both attempt to make a distinction between the two. Fehrenbacher's argument is far superior to Quaife's, though neither recognizes that people in the 1840s often used the terms synonymously.
(16.) Quaife, Doctrine of Non-Intervention, 44.
(17.) See John Niven, John C. Calhoun and the Price of Union: A Biography (Baton Rouge: Louisiana State Univ. Press, 1988), 306-21.
(18.) Quaife, Doctrine of Non-Intervention, esp. 55-66.
(19.) Morrison, Democratic Politics and Sectionalism, 87, 88.
(20.) William W. Freehling, The Road to Disunion: vol. 1, Secessionists at Bay (New York: Oxford Univ. Press, 1990), 476.
(21.) For a brilliant explanation of the concept of territorial sovereignty, as opposed to exercising popular sovereignty at the time of a territory's admission to the Union, see Arthur Bestor, "State Sovereignty and Slavery: A Reinterpretation of Proslavery Constitutional Doctrine, 1846-1860," Journal of the Illinois State Historical Society 54 (Summer 1961): 147-55.
(22.) Allan Nevins, The Ordeal of the Union: vol. 1, Fruits of Manifest Destiny, 1847-1852 (New York: Charles Scribner's Sons, 1947), 30, 31.
(23.) Morrison, Slavery and the American West, 84.
(24.) When asked to clarify his position on when a territory could decide the slavery issue, Cass would refer the inquirer to the Nicholson letter, "the very document he had been asked to clarify." See Klunder, Lewis Cass and the Politics of Moderation, 178, for one such example.
(25.) James L. Huston, Stephen A. Douglas and the Dilemmas of Democratic Equality (Lanham, Md.: Rowman & Littlefield, 2007), 66.
(26.) Don E. Fehrenbacher, The Slaveholding Republic: An Account of the United States Government's Relations to Slavery, completed and edited by Ward M. McAfee (New York: Oxford Univ. Press, 2001), 266-68; and Potter, Impending Crisis, 60-62.
(27.) Potter, Impending Crisis, 61.
(28.) See William J. Cooper Jr., The South and the Politics of Slavery, 1828-1856 (Baton Rouge: Louisiana State Univ. Press, 1978), for a discussion of how slavery fit into the dynamics of the Whig and Democratic parties.
(29.) Rayback, Free Soil, 118-19.
(30.) Quaife, Doctrine of Non-Intervention, 65.
(31.) See Morrison, Democratic Politics and Sectionalism, 93-120, esp. 114-15; Rayback, Free Soil, 113-14. For a superb discussion of the Alabama Platform, see Eric H. Walther, William Lowndes Yancey and the Coming of the Civil War (Chapel Hill: Univ. of North Carolina Press, 2006), 101-12.
(32.) Morrison, Democratic Politics and Sectionalism, 119.
(33.) See, for example, Potter, Impending Crisis, 82.
(34.) Taylor won the southern vote by 51.4 percent to Cass's 48.6 percent. For the vote figures, see Silbey, Party over Section, 135-37. For an analysis of the 1848 election that stresses the role of slavery in how southerners voted, see Cooper, South and the Politics of Slavery, 266-68. See also Nevins, Ordeal of the Union, 1:214-16.
(35.) See Michael F. Holt, The Rise and Fall of the American Whig Party: Jacksonian Politics and the Onset of the Civil War (New York: Oxford Univ. Press, 1999), 335-37.
(36.) For the history of the Compromise of 1850, see Holt, Rise and Fall of the American Whig Party, 414-583; Homan Hamilton, Prologue to Conflict: The Crisis and Compromise of 1850 (Lexington: Univ. Press of Kentucky, 1964).
(37.) See Holt, Rise and Fall of the American Whig Party, 479.
(38.) Ibid., 481, 485.
(39.) The best statement of Douglas's actions is in Johannsen, Stephen A. Douglas, 283-98.
(40.) Cass's biographer quietly addresses this critical admission; see Klunder, Lewis Cass and the Politics of Moderation, 241-42.
(41.) See Johannsen, Stephen A. Douglas, 287-90.
(42.) See Holt, Rise and Fall of the American Whig Party, 540-41.
(43.) Robert R. Russel, "What Was the Compromise of 1850?" Journal of Southern History 22 (Aug. 1956): 292-309. See also Hamilton, Prologue to Conflict, 172-74.
(44.) Russel, "What Was the Compromise of 1850?" 303.
(45.) Potter, Impending Crisis, 115-17; Fehrenbacher, Dred Scott Case, 175.
(46.) Potter, Impending Crisis, 117.
(47.) Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates (Chicago: Univ. of Chicago Press, 1959), 169.
(48.) Fehrenbacher, Dred Scott Case, 176.
(49.) Klunder, "Lewis Cass and Slavery Expansion" 301.
(50.) Again, both historians disagree with Robert Russel, who did not believe that the congressmen intended to provide for an appeal process akin to the Clayton Compromise. See Potter, Impending Crisis, 116, and Russel, "What Was the Compromise of 1850?" 301-2.
(51.) Howard Roberts Lamar, The Far Southwest, 1846-1912: A Territorial History (New Haven: Yale Univ. Press, 1966), 89.
(52.) Nichols, "Kansas-Nebraska Act: A Century of Historiography," 187-212.
(53.) See Johannsen, Stephen A. Douglas, 398-413; Huston, Stephen A. Douglas and the Dilemmas of Democratic Equality, 100-101; Nevins, Ordeal of the Union, 2:78-121.
(54.) See Mrs. [Susan Bullitt] Archibald Dixon, The True History of the Missouri Compromise and Its Repeal (Cincinnati: Robert Clarke Company, 1898); P. Orman Ray, The Repeal of the
Missouri Compromise (Cleveland: Arthur H. Clark, 1909); Henry Barrett Learned, "The Relation of Philip Phillips to the Repeal of the Missouri Compromise in 1854," Mississippi Valley Historical Review 8 (Mar. 1922): 303-17.
(55.) Potter, Impending Crisis, 168.
(56.) Johannsen, Stephen A. Douglas, 407-8; Huston, Stephen A. Douglas and the Dilemmas of Democratic Equality, 100.
(57.) Cooper, South and the Politics of Slavery, 349, 350. For the political machinations over Kansas-Nebraska in the South, see 349-62.
(58.) Robert R. Russel, "The Issues in the Congressional Struggle over the Kansas-Nebraska Bill, 1854," Journal of Southern History 29 (May 1963): 190.
(59.) See Freehling, Road to Disunion, 552. Nicole Etcheson also suggests this potential outcome in her work on territorial Kansas. See "Great Principle of Self-Government," 14-29. See also Nicole Etcheson, Bleeding Kansas: Contested Liberty in the Civil War Era (Lawrence: Univ. Press of Kansas, 2004), esp. 4-6, 14-21. For the suggestion by senators that northern emigrants would flood the territory, see Avery O. Craven, The Growth of Southern Nationalism, 1848-1861 (Baton Rouge: Louisiana State Univ. Press, 1953), 195.
(60.) Russel, "Issues in the Congressional Struggle over the Kansas-Nebraska Bill" 197-98.
(61.) Craven, Growth of Southern Nationalism, 192-205.
(62.) Etcheson, Bleeding Kansas, 15.
(63.) Potter, Impending Crisis, 173.
(64.) Morrison, Slavery and the American West, 151.
(65.) Fehrenbacher, Dred Scott Case, 379.
(66.) Allen, Origins of the Dred Scott Case, 178-202.
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