The Northwest Ordinance of 1787 and the Bill of Rights
I’ve reached 1857 in the Bingham book, and I want to raise some issues about the incorporation of the Bill of Rights in a series of posts that will start now and resume after Thanksgiving. Let me start by drawing your attention to some parts of the Northwest Ordinance of 1787, which was enacted under the Articles of Confederation and governed the territory that became Indiana, Illinois, Ohio, Michigan, and Wisconsin:
“It is hereby ordained and declared by the authority aforesaid, That the following articles shall be considered as articles of compact between the original States and the people and States in the said territory and forever remain unalterable, unless by common consent, to wit:
Art. 1. No 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.
Art. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land; and, should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed.”
Why is this important? Because many of the provisions of the Bill of Rights are here. This meant that the states governed by the Ordinance were arguably obliged to obey parts of the Bill of Rights before the Fourteenth Amendment was ratified (at least that’s what Bingham thought). This is an interesting idea that I want to explore further.
UPDATE: One of the comments points out that a recent Note in the Yale Law Journal addresses this issue. I have downloaded this and will read it today (the Colts can’t lose this week, so I have more free time).