The concept articulated during a pivotal 1858 senatorial debate offered a potential solution to the divisive issue of slavery in the territories. This idea asserted that even though the Supreme Court’s Dred Scott decision seemingly legalized slavery in all territories, territorial residents could effectively prevent its establishment by failing to enact local laws (slave codes) necessary to protect slaveholders’ rights. Without such local legislation, slavery could not practically exist, regardless of the Court’s ruling. For instance, a territory might refuse to pass laws governing the capture of runaway slaves, thus rendering slave ownership unenforceable.
The significance of this argument lies in its attempt to reconcile popular sovereignty with the Dred Scott ruling. It allowed citizens of a territory to indirectly decide the slavery question, even if they couldn’t directly prohibit it. This position was crucial for Stephen Douglas, as it enabled him to maintain support among both pro-slavery and anti-slavery factions within the Democratic Party. However, it ultimately proved inadequate to fully quell sectional tensions. It deepened the divide between Northern and Southern Democrats, weakening the party and contributing to the escalating crisis that led to the Civil War. The concept highlights the complexities and compromises attempted in the years leading up to the war, illustrating the deeply rooted and seemingly irreconcilable differences regarding the institution of slavery.
