Prolonged discussion made certain points of agreement clear to all.  It was found that no one questioned the right of a State, with sufficient population and a republican constitution, to enter the Union with or without slavery as it chose.  All agreed that it was best that slavery should not be discussed in Congress.  All agreed that, whether or no Congress had the power to exclude slavery in the Territories, it ought not to exercise it.  All agreed that if Congress had such power, it ought to delegate it to the people.  Here agreement ceased.  Did Congress have such power?  Clearly the law of the Constitution could alone determine.  Then why not delegate the power to control their domestic institutions to the people of the Territories, subject to the provisions of the Constitution?  “And then,” said one of the participants later, “in order to provide a means by which the Constitution could govern ... we of the South, conscious that we were right, the North asserting the same confidence in its own doctrines, agreed that every question touching human slavery or human freedom should be appealable to the Supreme Court of the United States for its decision."[470]

While this compromise was being reached in caucus, the bill was under constant fire on the floor of the Senate.  The Appeal of the Independent Democrats had bitterly arraigned the declaratory part of the Kansas-Nebraska bill, where the Missouri Compromise was said to have been superseded and therefore inoperative.  Even staunch Democrats like Cass had taken exception to this phraseology, preferring to declare the Missouri Compromise null and void in unequivocal terms.  To Douglas there was nothing ambiguous or misleading in the wording of the clause.  What was meant was this:  the acts of 1850 rendered the Missouri Compromise inoperative in Utah and New Mexico; but so far as the Missouri Compromise applied to territory not embraced in those acts, it was superseded by the great principle established in 1850.  “Superseded by” meant “inconsistent with” the compromise of 1850.[471] The word “supersede,” however, continued to cause offense.  Cass read from the dictionary to prove that the word had a more positive force than Douglas gave to it.  To supersede meant to set aside:  he could not bring himself to assent to this statement.[472]

By this time agreement had been reached in the caucus, so that Douglas was quite willing to modify the phraseology of the bill.  “We see,” said he, “that the difference here is only a difference as to the appropriate word to be used.  We all agree in the principle which we now propose to establish.”  As he was not satisfied with the phrases suggested, he desired some time to consult with friends of the bill, as to which word would best “carry out the idea which we are intending to put into practical operation by this bill."[473]

On the following day, February 7th, Douglas reported, not merely “the appropriate word,” but an entirely new clause, the product of the caucus deliberations.