Monday, December 11, 2006

Two Versions of Popular Sovreignty

The southern position on the territories shifted over time. The core premise was that the territories were jointly owned by the states; that residents of all states were entitled to equal access; and that equal access for slaveowners necessarily included the right to bring their "property." A limited version of the Cass-Douglas "popular sovereignty" option was therefore acceptable: residents of a territory were entitled to choose slavery or not, but only immediately before statehood (i.e., when voting on the proposed state constitution). If a territorial legislature were permitted to bar slavery earlier in the territorial phase, then slaveowners would never move in, and non-slavery would necessarily result.

Dred Scott, with its suggestion that a congressionally-created territorial legislature lacked the power to bar slavery in a territory, reflected this approach.

The Breckinridge Democratic Platform of 1860 summed up the elements as follows:

"Resolved . . .

"1. That the Government of a Territory organized by an act of Congress, is provisional and temporary; and during its existence, all citizens of the United States have an equal right to settle with their property in the Territory, without their rights, either of person or property, being destroyed or impaired by Congressional or Territorial legislation. . .

"3. That when the settlers in a Territory having an adequate population, form a State Constitution, in pursuance of law, the right of sovereignty commences, and, being consummated by admission into the Union, they stand on an equal footing with the people of other States; and the State thus organized ought to be admitted into the Federal Union, whether its Constitution prohibits or recognizes the institution of Slavery."

Over time, and particularly in response to Douglas' Freeport Doctrine (and accepting its premise that slavery could not flourish without affirmative support), southern political leaders argued, in addition, that equal access required the federal government to enact slave codes that would affirmatively protect slavery in the territories. Only this, they argued, would provide sufficient protection to slavery to give slaveowners equal access as a practical matter.

This view of the federal government's duty to affirmatively protect slavery is also contained in the 1860 Breckinridge Platform:

"Resolved . . .

"2. That it is the duty of the Federal Government, in all its departments, to protect, when necessary, the rights of persons and property in the Territories, and wherever else its Constitutional authority extends."

Until 1860, the phrase "Popular Sovreignty" thus masked and smoothed over differences, allowing politicians in different sections to tell their constituents that it meant different things. The northern version permitted the people of a territory, through their territorial legislature, to bar slavery at any time after the territorial legislature was formed. The southern form, exemplified by the Breckinridge platform, essentially prohibited the people of the territory from barring slavery until they voted on the proposed state constitution.

Southern politicians accepted the weak form, but then added to it the stipulation that, during the territorial phase, the federal government was constitutionally obligated to take affirmative steps (if the territorial legislature did not do so) to protect slavery in the territory in order to insure that slaveowners had, as a practical matter, equal access.

I suppose a skeptic might argue that the southern form of "popular sovreignty" had somehow lost the "popular" part, and the "sovreignty" part as well. But it allowed southerners to argue that they supported "popular sovreignty" and adhered to true republican values.

The Breckinridge platform is noteworthy not just because it demanded those affirmative protections during the territorial phase. It also took the mask off the term "Popular Sovreignty" and clearly identified the specific form of popular sovreignty being endorsed.

The Douglas platform, in contrast, of course omitted the affirmative protections. It also left the popular sovreignty concept as vague as it could, and essentially abdicated responsibility for its meaning to an eventual ruling by the Supreme Court. (In Dred Scott, Taney had held that Congress could not constitutionally bar slavery from the territories and strongly implied that territorial legislatures could not do so either, but the court did not squarely rule on the latter issue because it was not presented.) The Douglas platform stated:

"7. Resolved, That it is in accordance with the interpretation of the Cincinnati platform, that during the existence of the Territorial Governments the measure of restriction, whatever it may be, imposed by the Federal Constitution on the power of the Territorial Legislature over the subject of the domestic relations, as the same has been, or shall hereafter be finally determined by the Supreme Court of the United States, should be respected by all good citizens, and enforced with promptness and fidelity by every branch of the general government."

The "Cincinnati platform", to which the Douglas platform refers, was the Democratic platform of 1856 (the 1856 Convention was held in Cincinnati). The Cincinnati platform was long on rhetoric and conveniently short on substance:

"And that we may more distinctly meet the issue on which a sectional party, subsisting exclusively on slavery agitation, now relies to test the fidelity of the people, north and south, to the constitution and the Union—

"1. Resolved, That claiming fellowship with and desiring the cooperation of all who regard the preservation of the Union under the constitution as the paramount issue, and repudiating all sectional parties and platforms concerning domestic slavery which seek to embroil the states and incite to treason and armed resistance to law in the territories, and whose avowed purpose, if consummated, must end in civil war and dis-union, the American democracy recognize and adopt the principles contained in the organic laws establishing the territories of Nebraska and Kansas, as embodying the only sound and safe solution of the slavery question, upon which the great national idea of the people of this whole country can repose in its determined conservation of the Union, and non-interference of Congress with slavery in the territories or in the District of Columbia.

"2. That this was the basis of the compromise of 1850, confirmed by both the Democratic and Whig parties in national conventions, ratified by the people in the election of 1852, and rightly applied to the organization of the territories in 1854.

"3. That by the uniform application of the Democratic principle to the organization of territories and the admission of new states, with or without domestic slavery, as they may elect, the equal rights of all the states will be preserved intact, the original compacts of the constitution maintained inviolate, and the perpetuity and expansion of the Union insured to its utmost capacity of embracing, in peace and harmony, every future American state that may be constituted or annexed with a republican form of government.

"Resolved, That we recognize the right of the people of all the territories, including Kansas and Nebraska, acting through the legally and fairly expressed will of the majority of the actual residents, and whenever the number of their inhabitants justifies it, to form a constitution, with or without domestic slavery, and be admitted into the Union upon terms of perfect equality with the other states."

Say what?

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