In 1854, Congress created the Kansas and Nebraska territories and invited local settlers to decide for themselves the legal status of slavery within their borders. As you might expect, whether pro- or anti-slavery forces could command an electoral majority was critically important for the future of Kansas. Each side claimed voter fraud when the other gained control of the territorial legislature; referenda on proposed free-soil constitutions were boycotted by pro-slavery voters, and vice versa. Kansas could only be admitted to the Union with Congressional ratification of its proposed state constitution, and whether a proposed constitution legitimately reflected the desires of a sufficient number of Kansans was a factually frustrating and inevitably political issue.
Perhaps the most infamous document produced during this struggle was the Lecompton Constitution, drafted by the territorial legislature at Lecompton, Kansas in September 1857. Article VII, Section I declared that “[t]he right of property is before and higher than any constitutional sanction, and the right of the owner of a slave to such slave and its increase is the same and as inviolable as the right of the owner of any property whatever.” In a referendum, voters were asked to choose between the “Constitution with Slavery” and the “Constitution with no Slavery.” But the Lecompton Constitution was inherently pro-slavery; “no Slavery” meant merely a ban on the further admission of slaves into the territory.
Both the Lecompton Constitution and the anti-slavery Topeka Constitution were sent to Congress. The original Lecompton Constitution remains in the Kansas State Historical Society Archives, but the copy sent to Congress is kept in the National Archives’ Legislative Treasures Vault. Here’s the first page of that document:
Interestingly, the president of the Lecompton convention didn’t send the above copy directly to Congress for its consideration. He sent it to President Buchanan, hoping a presidential endorsement would accompany the necessary transmittal. Buchanan indeed sent “the Constitution of Kansas” (as opposed to the “so-called Topeka constitution,” the “revolutionary” “Topeka usurpation”) to Congress in a message strongly resembling a typical presidential request that the Senate ratify a treaty already concluded.
Buchanan felt Congressional approval of the Lecompton Constitution would be the swiftest means of quelling the deadly “agitation,” but he also maintained that his preference was constitutionally required: “It has been solemnly adjudged by the highest judicial tribunal known to our laws [in Dred Scott v. Sandford] that slavery exists in Kansas by virtue of the Constitution of the United States. Kansas is therefore at this moment as much a slave State as Georgia or South Carolina. Without this the equality of the sovereign States composing the Union would be violated and the use and enjoyment of a territory acquired by the common treasure of all the States would be closed against the people and the property of nearly half the members of the Confederacy. Slavery can therefore never be prohibited in Kansas except by means of a [federal] constitutional provision.” Buchanan was echoing the “nonintervention” or “common-property-of-the-states” doctrine articulated in Congress by the South Carolinians Robert Barnwell Rhett and John C. Calhoun around a decade earlier.
Here’s the first page of Buchanan’s February 2, 1858 message:
The Senate approved the Lecompton Constitution over the near-fatal opposition of Stephen Douglas, who felt the document’s procedural history made a mockery of “popular sovereignty.” The House voted to require a new referendum in Kansas in which voters could vote up or down on the entire Lecompton Constitution. It was soundly rejected, 10,226 to 138. Kansas was admitted to the Union as a free state on January 29, 1861, after six Southern states had already seceded.