During the Kansas civil war and the Presidential campaign of the previous year, by way of offset to the Topeka Constitution, both Senator Douglas and Senator Toombs wrote and introduced in the Senate bills to enable Kansas to form a State constitution.

The first by design, and the second by accident, contained a clause to submit such constitution, when formed, to a vote of the people.

Both these bills were considered not only by the Senate Committee on Territories, of which Douglas was chairman, but also by a caucus of Democratic Senators.

Said Senator Bigler: "It was held, by those most intelligent on the subject, that in view of all the difficulties surrounding that Territory, [and] the danger of any experiment at that time of a popular vote, it would be better that there should be no such provision in the Toombs bill; and it was my understanding, in all the intercourse I had, that that convention would make a constitution and send it here without submitting it to the popular vote."[3] [Sidenote] Douglas, Milwaukee Speech, October 13, 1860.
This Toombs bill was, after modification in other respects, adopted by Douglas, and duly passed by the Senate; but the House with an opposition majority refused its assent.

All these preliminaries were well known to the Buchanan Cabinet, and of course also to Douglas.