It had been argued that, because the Lecompton convention had been duly constituted, with full power to ordain a constitution and establish a government, consequently the proceedings of the convention must be presumed to embody the popular will.  Douglas immediately challenged this assumption.  The convention had no more power than the territorial legislature could confer.  By no fair construction of the Kansas-Nebraska Act could it be assumed that the people of the Territory were authorized, “at their own will and pleasure, to resolve themselves into a sovereign power, and to abrogate and annul the organic act and territorial government established by Congress, and to ordain a constitution and State government upon their ruins, without the consent of Congress.”  Surely, then, a convention which the territorial legislature called into being could not abrogate or impair the authority of that territorial government established by Congress.  Hence, he concluded, the Lecompton constitution, formed without the consent of Congress, must be considered as a memorial or petition, which Congress may accept or reject.  The convention was the creature of the territorial legislature.  “Such being the case, whenever the legislature ascertained that the convention whose existence depended upon its will, had devised a scheme to force a constitution upon the people without their consent, and without any authority from Congress, ... it became their imperative duty to interpose and exert the authority conferred upon them by Congress in the organic act, and arrest and prevent the consummation of the scheme before it had gone into operation."[653] This was an unanswerable argument.

In the prolonged debate upon the admission of Kansas, Douglas took part only as some taunt or challenge brought him to his feet.  While the bill for the admission of Minnesota, also reported by the Committee on Territories, was under fire, Senator Brown of Mississippi elicited from Douglas the significant concession, that he did not deem an enabling act absolutely essential, so long as the constitution clearly embodied the will of the people.  Neither did he think a submission of the constitution always essential; it was, however, a fair way of ascertaining the popular will, when that will was disputed.”  Satisfy me that the constitution adopted by the people of Minnesota is their will, and I am prepared to adopt it.  Satisfy me that the constitution adopted, or said to be adopted, by the people of Kansas, is their will, and I am prepared to take it....  I will never apply one rule to a free State and another to a slave-holding State."[654] Nevertheless, even his Democratic colleagues continued to believe that slavery had something to do with his opposition.  In the classic phraseology of Toombs, “there was a ‘nigger’ in it.”