Felix Zollicoffer’s minority report on the free state government’s petition for Kansas statehood agreed with the majority that polities should not languish forever in territorial status. However, he disagreed strongly that Kansas had done so. If Michigan could wait thirty-two years, then surely Kansas could not have come to the brink of ruin in two. For that matter, Kansas had nowhere near so many people as to make the matter urgent by numbers alone. Quite the opposite, the territorial population hung on the very low end or past admissions and making it a state now would do an injustice to the others by asking to accept a relative handful of people warranting one Representative and two Senators. On the last point, Zollicoffer echoes the traditional criticisms of the Electoral College and the Senate.
But Tennessee’s most strikingly named son started with the small stuff. The Committee on Territories reported out a bill for Kansas’ statehood under the Topeka Constitution. Said bill declared that “the people of Kansas have presented a constitution, and asked admission”. That all sounds right enough, until you open a newspaper. There, Zollicoffer found the curious
fact that this “constitution,” and this pretended “State of Kansas,” have been set up in open resistance to the lawfully-constituted authority of the country-set up on the public domain of the United States in utter defiance of and resistance to the laws of the United States; set up not by “the people of Kansas,” but by a dissatisfied portion of the people, arrayed in excited antagonism to another portion; with a questionable list of grievances, and with a temper too impatient, or too prone to disorder, to await the redress of grievances which the due processes of law and order are sure to accord
To top it off, they claimed that the territorial government had failed and so deprived the people of “any legal government whatsoever”. Zollicoffer would have none of that. The United States gave Kansas a territorial government in the Kansas-Nebraska Act. If a law of Congress did not make that government legal, then legality had no meaning. Who elected those senators and representatives of Kansas? Not the people of Kansas, who had legal elections to represent them. Rather some band of rebel scum grinding axes over the dubious cause of freedom took matters into their own hands. With the exception of Zollicoffer’s view of the free state movement’s grievances, he has the facts on his side. That proslavery men within Kansas had gone over thanks to the same grievances didn’t enter into it. They hadn’t all switched sides.
As much as we naturally want to dismiss Zollicoffer as a proslavery partisan, he has at least a weak point. The process of writing and ratifying a constitution cannot for a second escape politics. They all come with embedded ideologies and policy objectives. But in treating constitutions as more than ordinary law, we mean for them to acquire a more fixed state that also renders them uniquely binding upon the people. Traditionally, Americans believe you should have some kind of supermajority to do that. In theory, that means you come up with a document that all parties can at least tolerate.
One could argue that the free state movement did that; its elections at least had higher turnout than the territory’s legal elections did. That it could manage such a feat while having at best tenuous legality and at worst fomenting insurrection speaks volumes as to how Missourian invasions and the laws they wrought transformed Kansas into a prison house for white liberties. That they managed this with a white population of which Missourians formed a large part says still more. But the history of the free state movement and its legal status do raise serious questions about its formal legitimacy.