Happy birthday to the Northwest Ordinance, which the Articles of Confederation Congress enacted on July 13, 1787, to govern the Northwest Territory. The Territory comprised what we know today as the states of Ohio, Indiana, Michigan, Illinois, and Wisconsin, along with part of Minnesota.

Amid the nation’s westward expansion, Congress needed to establish a foundation of law to govern the settlement of the territory and—eventually—the admission of parts of the territory into the union as states. In 1789, after the ratification of the Constitution, the First Congress re-enacted the Northwest Ordinance. The Ordinance is both significant to our nation’s history and relevant to modern constitutional discourse. In particular, constitutional originalists should take note of the Ordinance.

Beginning with its historical significance, the Northwest Ordinance is perhaps best known for its prohibition of slavery in the Northwest Territory. Delegate Nathan Dane—who had helped draft the Ordinance—later commented: “When I drew the ordinance which passed (in a few words excepted) as I originally formed it, I had no idea the States would agree to the sixth [Article] prohibiting Slavery.”

The reasons for the Southern states’ assent to the Ordinance’s anti-slavery provision are not entirely clear. Some cite a 1787 letter from Virginia Delegate William Grayson to James Monroe in which Grayson noted that “[t]he clause respecting slavery was agreed to by the Southern members for the purpose of preventing Tobacco and Indigo from being made on the N.W. side of the Ohio as well as for sev[eral] other political reasons.” (In a footnote in his article on the topic, author David Brion Davis thanks Robert F. Berkhofer, Jr., “for the information that Grayson originally wrote ‘tobacco and hemp.’”) Moreover, the provision was far from morally perfect even on its face, including a fugitive slave clause alongside its prohibition of slavery.

The Ordinance contained various other, significant elements. It lauded “civil and religious liberty” as “the fundamental principles . . . which form the basis whereon these republics, their laws and constitutions are erected.” Indeed, it provided that “[n]o person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory,” further describing “[r]eligion, morality, and knowledge” as “being necessary to good government and the happiness of mankind.”

Article Three provided that “schools and the means of education shall forever be encouraged.” It also demanded that “utmost good faith shall always be observed towards the Indians”—an ideal to which the federal government, as Justice Gorsuch has noted in recent opinions, has not always lived up. Additional key aspects of the Ordinance included entitlement of “[t]he inhabitants of the said territory . . . to the benefits of the writ of habeas corpus, and of the trial by jury”; a prohibition on laws that would “interfere with or affect private contracts or engagements”; and a process by which “[t]here shall be formed in the said territory, not less than three nor more than five States,” each of which would—notably—enter the United States on an equal footing with the original states.

In more recent years, the Northwest Ordinance has appeared in various Supreme Court opinions and has emerged as an important point of reference for Justices engaging in originalist analysis. Justice Kennedy’s opinion in Boumediene v. Bush—a case about the extent of the writ of habeas corpus’s reach—credited the Northwest Ordinance with initially obviating the question of the Suspension Clause’s limits due to the Ordinance’s extension of the writ to the territory. In her City of Boerne v. Flores dissent, Justice O’Connor pointed to the Northwest Ordinance for the proposition that “around the time of the drafting of the Bill of Rights, it was generally accepted that the right to ‘free exercise’ required, where possible, accommodation of religious practice.” And concurring in the judgment in Fulton v. City of Philadelphia, Justice Alito described the Northwest Ordinance as highlighting an early understanding of a broad right to the free exercise of religion with “a ‘peace and safety’ carveout.”

Justice Thomas has been quite fond of citing the Northwest Ordinance in his opinions. Concurring in Rosenberger v. Rector & Visitors of the University of Virginia, he argued that the Northwest Ordinance provides evidence of a broad national “tradition of allowing religious adherents to participate in evenhanded government programs.” He pointed in particular to the Ordinance’s set-aside of federal lands for the use of schools—many of which were “church-affiliated sectarian institutions as there was no requirement that the schools be ‘public.’” And in his famous Kelo v. City of New London dissent, Justice Thomas cited a Duke Law Journal Note that employed the phraseology of the Northwest Ordinance—alongside that of early state constitutions—to advocate for a more expansive interpretation of the protections of the Fifth Amendment’s Takings Clause.

In arguing—in a concurrence in the judgment in Timbs v. Indiana—that a prohibition on excessive fines was understood to be “a well-established and fundamental right of citizenship” (toward the end of arguing that the Privileges and Immunities Clause protects the right to be free from such fines), Justice Thomas noted the Northwest Ordinance’s provision that “[a]ll fines shall be moderate.” Moreover, his concurrence in the judgment in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC looked to the First Congress’s revision of the Northwest Ordinance to make the point that “officers exercising Article IV territorial power are not ‘Officers of the United States.’” (Justice Sotomayor also discussed the Northwest Ordinance in the Financial Oversight case.)

Most recently, in his concurrence in Sackett v. EPA, Justice Thomas pointed to the Northwest Ordinance in describing how the Ordinance illuminates the original meaning of the Commerce Clause. As Justice Thomas tells it, the Ordinance signaled a consequential shift from English common law in the American understanding of “navigability,” affecting the scope of Congress’s “narrow but deep” authority over waters.

In addition to its appearance in Supreme Court opinions, the Northwest Ordinance has made its way into influential constitutional law scholarship. In one ongoing debate, Julian Mortenson and Nicholas Bagley have cited the Northwest Ordinance as evidence that the nondelegation doctrine—a doctrine that many understand to be about prohibiting Congress from delegating legislative power to another branch of the federal government—is inconsistent with the original meaning of the Constitution. In their telling, the First Congress’s continuance of the Northwest Ordinance “conveyed [to the territorial governor and judges] standardless discretion to craft the entire body of laws for the territories,” therefore providing evidence of delegation at the founding. As I have argued elsewhere, the invocation of the Northwest Ordinance in this context may actually help to clarify the nondelegation debate in a different way.

When commentators discuss the nondelegation doctrine, they are usually talking about the “Article I” nondelegation doctrine: the principle that Article I’s vesting of “[a]ll legislative Powers herein granted” in Congress precludes congressional delegation of any Article I-enumerated powers to the executive or judicial branch. But the legislative power pursuant to which Congress continued the Northwest Ordinance was neither granted in nor vested by Article I. Rather, Congress was acting pursuant to its authority under the Property Clause in Article IV of the Constitution (which does not use the word “vested”) “to make all needful Rules and Regulations respecting the Territory.”

Thus, while the Ordinance can maybe help clarify whether the Property Clause embodies a principle of nondelegation, it is inapposite to the Article I nondelegation debates. The Northwest Ordinance example in fact reveals that the Article I nondelegation doctrine is merely a component part of a broader nondelegation principle. In forthcoming scholarly work, for example, I uncover what I call the “Bill of Rights Nondelegation Doctrine,” identifying a line of cases in which the Supreme Court has applied something like a principle of nondelegation in Bill of Rights cases to declare statutes, ordinances, and even warrants unconstitutional.

For originalists, the Northwest Ordinance has especially enduring relevance. To understand the foundations of our Constitution, all should study this important piece of legislation. It remains woven into the fabric of our law, and it sheds light on the original understanding of our founding document.

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