The history of constitutional crises up
to the Civil War is a succession of disputes over slavery:
(represented in the 1860 election by Constitutional Union Party): Congress
had full power to permit or prohibit slavery in the territories, as it had
in the Northwest Ordinance, the southern expansion, and the Missouri
Compromise. But the traditional balancing of slave against free
territories was itself a constitutional principle. Crittenden (Dec 1860)
proposed an irrepealable constitutional amendment to codify this.
(Republicans): answered the territorial power question in the same way,
but advocated ending the policy of extending slavery into any future
territories (starting with the Wilmot Proviso). In fact, they
interpreted the "due process" clause of the Fifth Amendment to mean that it
could not extend slavery to anyplace where it did not already
(Northern Democrats): argued that every community had the right to
determine the question for itself, be it a territorial government or a
state government. Congress, they said, could create a territorial
government having this power, but could not itself exercise the power.
In holding this, Douglas et al. blithely ignored the Northwest Ordinance.
States' rights (Southern Democrats): answered
with the theory of state sovereignty. States, and only states,
have the power to make policy concerning slavery. Citizens of a state
migrating to an organized or unorganized territory had their property
rights protected according to the law of their state. The federal government
had to assist in this protection. Hence neither territorial governments
nor Congress could prohibit slavery in territory that was not yet a state.