The people revere our founding documents as much as they do the men who composed them.
Yet we would do well to make a special note to mark today, July 13, as well. On this day in 1787, 235 years ago, while the Constitutional Convention met in Philadelphia to compose a new constitution for the country, the Congress formed under the Articles of Confederation passed the Northwest Ordinance.
The Northwest Ordinance resides in undeserved obscurity. Despite its unfamiliar nature to many people today, it comprised one of the most consequential actions under the Articles of Confederation and helped formulate principles and practices that would influence the direction of our country. At its core, the Northwest Ordinance committed to “extending the fundamental principles of civil and religious liberty.” The document called this commitment “the basis whereon these republics, their laws, and constitutions are erected.”
Regarding civil liberty, the Northwest Ordinance secured many rights the Constitution later would shield. It guarded trial by jury and due process. It banned “cruel and unusual punishments” and protected private property from arbitrary governmental taking. The Northwest Ordinance’s greatest act for liberty regarded slavery. Article 6 banned the institution throughout the Northwest Territory. As one prohibits actions and institutions one thinks wrong, this deed gained particular importance for demonstrating moral opposition to slavery.
Through our national Congress, one filled with important members of the founding generation, the people expressed, by law, their disdain for human bondage. On this note, Congress acted on the only federal land it exclusively controlled. Abraham Lincoln would make much of this point in arguing for the anti-slavery bona fides of our founding. Unlike the later compromises of 1820 and 1850, however, Congress did not split the difference between slave and free territory. It banned slavery entirely.
Regarding religious liberty, the Northwest Ordinance declared in Article 1 that “no person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments.” Whether consciously or not, this article influenced many subsequent discussions of religious liberty, including our First Amendment’s free exercise clause. Through it, the Northwest Ordinance balances the need for peace and order with firm protection of both religious action (mode of worship) and religious sentiments (belief).
Of note, the Northwest Ordinance provided for religious liberty while maintaining a public role for religion. Article 3 said that “religion, morality, and knowledge” are “necessary to the good government and happiness of mankind.” The Declaration of Independence asserted the protection of one’s pursuit of happiness a primary goal of government. The Northwest Ordinance added that religion plays a pivotal role in this public endeavor. The Northwest Ordinance keeps public faith in line with religious liberty by encouraging “schools and means of education.” Schools will teach, not indoctrinate; persuade, not coerce. How we view our First Amendment’s establishment clause should incorporate the wise balance of the Northwest Ordinance.
Beyond these purposes, the Northwest Ordinance established institutions for the people to engage in popular self-government. As our Constitution would later demand of all states, the Northwest Ordinance required that the territory’s “constitution and government … shall be republican.” The Northwest Ordinance provided judges who served during good behavior and a single governor, creating a system of separation of powers far closer to the Constitution than the Articles of Confederation. By these means, the Northwest Ordinance grounds itself on the consent of the governed.
We live in times of great turmoil. We face confusion and conflict about America’s principles and character — its past as well as its future. With its commitment to civil and religious liberty as well as to self-government, the Northwest Ordinance provides clarity to our confusion, a gift from the past that should serve to guide our future.
Adam Carrington is an associate professor of politics at Hillsdale College.
