The Northwest Ordinance was enacted in 1787, and re-enacted in 1789, by the First Congress of the United States. The Ordinance was intended to regulate the territory now constituting Ohio, Michigan, and other portions of the upper Midwest. Text from the document is sometimes quoted in debates concerning the law and philosophy of education, or the proper constitutional relationship between Church and State. Some scholars and practitioners believe the Ordinance is a useful indication of the Framer’s original intent, and invoke the document as a tool for sound constitutional interpretation.
The Ordinance expressed some very progressive sentiments, especially considering the state of politics and law at the time of enactment. It advocated “extending the fundamental principles of civil and religious liberty,” and provided in Article I 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.” Many years later, this vision was set aside as states fought to suppress Catholics, Mormons and Mennonites who lived in the upper Midwest.
Article II was also sweeping in its protection of civil liberties. It provided for due process, trial by jury, bail, evidentiary presumption, property rights, contract rights, protection against takings, and protection against cruel and unusual punishments. Article II also protected “liberty” and the writ of habeas corpus, which was the legal tool afforded under the common law for vindicating parental rights. The Ordinance endorsed the common law, which inherently afforded great deference to parental decisions regarding a child’s education and upbringing.
At a time when many of the states permitted slavery, Article VI of the Ordinance included the language which would eventually be used in the Thirteenth Amendment: “There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted[.]”
Article III set forth a noble, Franklinesque standard for race relations:
The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.