Representatives, and the legislature of Kansas, availing themselves of
the plenary power conferred upon them by the organic act, proceeded to
provide for the assembling of a convention, and the formation of a
constitution. The law was minute and fair in its provisions, so nearly
resembling the bill of the Senate that the one was probably copied
from the other. It seemed to secure to every legal voter every
desirable opportunity to exercise his right. One of the parties of the
territory, however, denying the legal existence of the legislature,
chose to abstain from voting. The other elected the delegates who
formed the constitution. The validity of the instrument he has been
denied, because it was not submitted for popular ratification. He held
this position to be wholly untenable, and could but regard it as a
gross departure from the principle of popular sovereignty. A
people--he used the word in its strict political sense--having the
right to make for themselves their fundamental law, may either
assemble in mass convention for that purpose, or may select delegates
and limit their power to the preparation of an instrument to be
submitted to a popular decision; or they may appoint delegates with
full powers to frame the fundamental law of the land. Whether they
adopt one mode or the other is a question with which others have no
right to interfere, and he who claims for Congress the power to sit in
judgment on the manner in which a people may form a constitution, is
outside of the barrier which would restrain him from claiming for
Congress the right to dictate the instrument itself. If the right
existed to form a constitution at all, the power of Congress in
relation to the instrument was limited to the simple inquiry: is it
republican? In this view of the case it would not matter to him the
ninety-ninth part of a hair whether a people should chose to admit or
exclude slave property. Their right to enter the Union would be a
thing apart from that consideration.