History Lessons: The Post-Roe Abortion Debate in Light of Popular Sovereignty, Part 2

Understanding the Old Slavery Debate Is More Important than Ever

In Part 1 of this series, we recapped some of the trends and events since Dobbs that reveal a growing divide between states and their respective abortion policies. As the situation related to the sanctity of human life post-Roe continues to unfold, I can’t help but notice striking rhyme schemes with the debates regarding popular sovereignty after the Compromise of 1850 and the Kansas-Nebraska Act of 1854, which left the matter of slavery up to the individual territories to decide. Here in Part 2, we’ll dig into this history, and in Part 3 we’ll connect the dots between these two eras.

The Mid-19th-Century Slavery Divide

In the context of the slavery debate, “popular sovereignty” was the doctrine which said that the residents of a territory have sovereign rights to determine their territorial status as either a “slave state” or a “free state”—as either permitting or prohibiting slavery. Riffing off the common pro-abortion slogan, “My body, my choice,” we might summarize popular sovereignty with the phrase, “Our state, our choice.”

This was a significant shift from earlier government policies regarding slavery, which had proscribed its spread geographically. We see this even in the Constitutional provision that prohibited slavery in the Northwest Territory, and in the Missouri Compromise of 1820, which allowed new slave territories below, but not above, the 36-30 line of North latitude.

Defining slavery geographically brought its own share of divisions into the young nation, and this worried Thomas Jefferson, who wrote shortly after the passage of the Missouri Compromise that it, “like a fire-bell in the night, awakened and filled me with terror. I considered it at once as the knell of the Union.” He was unsure of a solution and noted, “as it is, we have the wolf by the ear, and we can neither hold him, nor safely let him go. Justice is in one scale, and self-preservation in the other.”

As more territories were added to the burgeoning country under the terms of the Missouri Compromise, their status regarding slavery was predetermined by their location, and the trick was to keep an equal number of free states and slave states coming into the Union to maintain the tenuous political balancing act that was the national government.

Bleeding Kansas

But this tottering equilibrium encountered a new tremor once popular sovereignty became the organizing principle of the slavery debate in the 1850s. Tensions rose as each new territory became a fresh platform where the debate played out—both in the realm of ideas, and with boots on the ground. No matter where a new territory was located on the map, the people of that territory could now determine, via the ballot box, if they would allow slavery within their borders.

It got bloody very quickly, especially in Kansas. Historian Kenneth C. Davis explains in his classic Don’t Know Much About History that “with the Kansas-Nebraska Act calling for ‘popular sovereignty’ in the territories, Kansas was flooded with groups from both sides of the slavery issue” (206). Anti-slavery northerners supported pro-freedom settlers, even sending “Beecher’s Bibles,” which weren’t Bibles at all but were the new Sharps rifles, to aid the pro-freedom cause in Kansas (they were nicknamed after notable abolitionist preacher Henry Ward Beecher). Meanwhile, pro-slavery settlers poured in from neighboring Missouri, earning the nickname Border Ruffians, and tipped the electoral scales enough to set up a pro-slavery government for Kansas. But antislavery forces didn’t concede and set up their own free government in Topeka. It was Bleeding Kansas. Two competing governments, two warring sides, and, in hindsight, only a foreshadowing of what loomed on the horizon in the Civil War.

A Deepening Divide

Letting the people of each territory decide on such a weighty moral question as slavery proved unworkable in the long run. As the issues more clearly manifested, feelings of moral certainty solidified on both sides. Defenses for slavery as a moral institution and a positive good for society multiplied. No longer was slavery, as some of the Founders had called it, a “necessary evil.” Now it was, according to John Calhoun and other Southern apologists, morally upright. Calhoun argued, “I take higher ground. I hold that in the present state of civilization, where two races of different origin, and distinguished by color, and other physical differences, as well as intellectual, are brought together, the relation now existing in the slaveholding states between the two, is, instead of an evil, a good—a positive good.”

Opposition to slavery increased in volume and intensity too. A new generation of congressmen were less concerned with compromise and union than with the moral rightness of their position. Should something of such moral magnitude as slavery be left up to individual territories and majority opinion? Or is there an actual moral standard that applies to all people and territories? New York Senator William Seward posed this line of thinking in his maiden address to Congress during the debates over the Compromise of 1850. There was, he said, a “higher law than the Constitution,” what we might call the Moral Law. He explained, “wherever I find a law of God or a law of nature disregarded, or in danger of being disregarded, there I shall vote to reaffirm it, with all the sanction of the civil authority.”

Seward was leery of yet another compromise to keep slave and free states hanging together. “I think all legislative compromises, which are not absolutely necessary, radically wrong and essentially vicious,” he claimed, drawing from Edmund Burke:

[F]ar, far from us be that false and affected candor that is eternally in treaty with crime that half virtue, which, like the ambiguous animal that flies about in the twilight of a compromise between day and night, is, to a just man's eye, an odious and disgusting thing.

Seward drove his point home:

I cannot stop to debate long with those who maintain that slavery is itself practically economical and humane…. I cannot consent to introduce slavery into any part of this continent which is now exempt from what seems to me so great an evil.

Lincoln made an even more pointed appeal to the higher moral law in his Peoria speech after the passage of the Kansas-Nebraska Act of 1854. He directly attacked the principle of popular sovereignty on moral grounds. While Lincoln was not advocating directly for abolition, nor for the social equality of the races, he did clearly view slavery as a moral wrong. Lincoln denounced popular sovereignty's “declared indifference” which concealed a “covert real zeal for the spread of slavery.” He continued, “I particularly object to the new position which the avowed principle of this Nebraska law gives to slavery in the body politic. I object to it because it assumes that there can be moral right in the enslaving of one man by another.” He argued that this contradicted our own founding documents, which “began by declaring that all men are created equal; but now from that beginning we have run down to the other declaration, that for some men to enslave others is a ‘sacred right of self-government.’”

As the 1850s marched on, slavery was clearly becoming more than just a political matter with slave states and free states and balancing acts through legislative compromise. Americans were increasingly understanding that this was a human issue. To be sure, it always was a human issue. However, the dividing line between the two sides was that one side recognized the humanity of all human beings, and the other side did not.

With the moral dimension figuring more prominently, division intensified, as shockingly demonstrated in the bloody beatdown of Massachusetts anti-slavery Senator Charles Sumner by South Carolina pro-slavery Representative Preston Brooks on the Senate floor after Sumner’s “The Crime Against Kansas Speech” (1856). Division was further amplified in the Supreme Court’s decision that former slave Dred Scott was property (1857), was clearly evident in the Lincoln-Douglass debates (1858), and intensified even more in John Brown’s raid of Harper’s Ferry Arsenal (1859). Then came Lincoln’s election (1860) and the start of Civil War (1861).

A Moral Issue

What many had at first considered a matter of political opinion and geographical lines on a map had come to be seen for what it truly was: a moral issue. In Part 3 we’ll draw out some of the connections between this historical era and our contemporary moment.