Friday, May 10, 2013 – Essay #60 – “The Dividing Line between Federal and Local Authority: Popular Sovereignty in the Territories” by Stephen Douglas – Guest Essayist: Tony Williams, Program Director for the Washington-Jefferson-Madison Institute

1859 was an ominous year for America as civil war between the sections threatened despite the attempts to avert it.  Back in 1854, Stephen Douglas had tried to quell sectionalism with the Kansas-Nebraska Act that would grant the seeming American principle of popular sovereignty regarding slavery in the territories, but Kansas became “bleeding Kansas” as a shooting war between pro and anti-slavery forces erupted after they flooded the state to institute their vision of popular sovereignty.  In 1857, Chief Justice Roger B. Taney injected the Court into the political question and tried to help prevent civil war with the Dred Scott opinion, stating that blacks were not and could not be citizens and that the Missouri Compromise was unconstitutional.  But, it too only fueled tensions between sections over the spread of the peculiar institution.

In the 1858 Lincoln-Douglas debates, Douglas defended his view of popular sovereignty.  In the seventh and final debate (reprinted in the Hillsdale College Constitution Reader), Douglas contradicted Lincoln’s “House Divided” speech in which he said that a house divided against itself (on slavery) cannot stand.  Douglas averred that, “In my opinion our government can endure forever, divided into free and slave States as our fathers made it, – each State having the right to prohibit, abolish or sustain slavery just as it pleases.”  Douglas believed that the sovereign people could decide whether or not to own slaves.  Douglas maintained this position by arguing that blacks were not meant to be included in the natural rights of the Declaration of Independence because they were created unequal.

In the debates with Lincoln, Douglas continued, “This government was made upon the great basis of the sovereignty of the States, the right of each State to regulate its own domestic institutions to suit itself.”  Because of the varied interests, character, and agriculture among the states, the sovereign people of each state would create unique institutions.  Slavery was one of those institutions, Douglas believed, that might be suitable for Virginia but not for Massachusetts. The people could thus decide for themselves whether or not to have it.  Douglas stated that the Founding Fathers agreed with his position.  “They knew that in a Republic as broad as this . . . there must necessarily be a corresponding variety of local laws . . . For this reason this Union was established on the right of each State to do as it pleased on the question of slavery.”

So when Democratic presidential hopeful Douglas published the article, “The Dividing Line between Federal and Local Authority: Popular Sovereignty in the Territories,” in Harper’s in late 1859, he consistently held fast to the principle and logic of popular sovereignty regarding the expansion of slavery.

In the article, Douglas reaches back into the Revolutionary era for support for his case.  Through a number of examples, he presents evidence that states that the Founders fight for local self-government against the tyrannical encroachments of British imperial authority especially over slavery.  In a shrewd debating move that might appeal to anti-slavery Republicans, Douglas used examples from the First Continental Congress and the Virginia Declaration of Rights to prove that the colonists had wanted to ban the national slave trade and exclude slavery from the state respectively, but the king imposed his will on them and prevented such acts.

Douglas declares popular sovereignty to be a basic inalienable right of a self-governing people.  “That it was the birthright of all freemen — inalienable when formed into political communities — to exercise exclusive legislation in respect to all matters pertaining to their internal polity.”  This sounds like a distinctly American ideal, until Douglas states that the internal matters included the right to own another human being without their consent.  Thus, he uses manipulates the Founding principles of self-government to bolster his case for a slaveholding republic.

Abraham Lincoln would readily concede many times that the national government had no control over slavery where it already existed in the South.  But, he believed the Congress had plain constitutional authority in Article IV, section 3, to regulate it in the territories.  The entire crux of the question was whether slavery was right or wrong.  In his Cooper Union address a few months after Douglas’ article was published, Lincoln stated that, “If slavery is right, all words, acts, laws, and constitutions against it, are themselves wrong, and should be silenced, and swept away.  If it is right we cannot justly object to its nationality — its universality; if it is wrong, they cannot justly insist upon its extension — its enlargement.”

But, Douglas does object.  He is agnostic on the rightness or wrongness of slavery and abides by popular sovereignty and the belief that the Constitution does not confer Congress any power over slavery in the new territories.  After all, he writes, “Such a power, had it been vested in Congress, would annihilate the sovereignty and freedom of the States as well as the great principle of self-government in the Territories.”

Douglas and Lincoln battled one another not only in the 1860 presidential election but rhetorically as well.  Lincoln’s argument supported a constitutional republic rooted upon the moral foundation of restricting the expansion of slavery.  Douglas was seeking a republic rooted upon slavery and its expansion wherever majority rule embraced it.  Tragically, this battle over the meaning of the Founding — the real “dividing line” — could only be resolved by the death of 600,000 Americans.

Read “The Dividing Line between Federal and Local Authority: Popular Sovereignty in the Territories” by Stephen Douglas:  http://www.constitutingamerica.org/blog/?p=4313

Tony Williams is the Program Director for the Washington-Jefferson-Madison Institute, which teaches teachers American Founding principles and documents, in Charlottesville, VA.  He is also the author of four books, including America’s Beginnings: The Dramatic Events that Shaped a Nation’s Character.

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