Professor Chad Marzen of FSU's Business School has posted "Law, Popular Legal Culture, and the Case of Kansas, 1854-1856" (forthcoming Wyoming Law Review) on ssrn. His abstract is as follows:
In the wake of the movie Lincoln and the 150th anniversary of events such as the Emancipation Proclamation and the Battle of Gettysburg, more attention and discussion in 2013 is likely to be directed to the causes, effects, and legacy of the Civil War, in law and social impact. This article contends that there is one historical time and moment which should not be overlooked – the Kansas-Nebraska Act of 1854 and period of time with events relating to Kansas from approximately 1854-1856 which preceded the onset of the Civil War.
This Article applies Professor Friedman’s framework of popular legal culture to appeals for emigration to Kansas made by abolitionists and Northeasterners in response to the passage of the Kansas-Nebraska Act in 1854. Instruments of popular culture, including circulars, handbooks, music, poetry, speeches, and especially newspaper heavily influenced migration to Kansas from 1854 to 1856 as a direct response to the notion of popular sovereignty embraced by the Kansas-Nebraska Act.
This article concludes that by engaging in a close reading of Kansas rhetoric from 1854-1856 in the instruments of popular culture which responded to the Kansas-Nebraska Act, the significant change in tone helps to explain how popular culture and the response to the legislation led to the growing polarization between North and South prior to the onset of the Civil War.
I think Marzen is exactly correct to urge that we pay significant attention to how people tried to implement constitutional ideas -- in this case popular sovereignty. While much of my attention of late has been on how people outside of the courts appealed to constitutional ideas to mobilize support for slavery (and here), in the years leading into Civil War people on all sides of the dispute over slavery appealed to the Constitution and law -- and tried to remake it.
The image is from Gettysburg, where a lot of people interpreted the Constitution -- in radically different ways.