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).

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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5 Responses

  1. Joe says:

    The rights, including some found in the original Constitution, are phrased in a somewhat different form in various cases with interesting connotations. For instance, free exercise is phrased in a way to clearly protect actions, not just belief, giving strength to the pre-Oregon v. Smith rule. Certain “services” can be taken. Only “private” contracts are covered. etc.

  2. Carolyn says:

    Does it make a difference that these were the Northwest Territories at the time? My understanding is that all territories are governed by federal law, which would include the Bill of Rights. Reaching statehood would then have had the legal effect of a “home rule” statute, removing them from those requirements.

    That being said, the Northwest Ordinance at the time was effectively a “forever unalterable” constitutional (not just a statutory) supplement to the Articles of Confederation. As a result, the federalist principle articulated in the previous paragraph may simply not have existed.

    On a separate note, it is my understanding that the Northwest Ordinance was adopted in full by the Constitution, except changed to statutory, and therefore amendable, status. Thus, did the Bill-of-Rights-like protections you quoted remain in force on those 5 states after the Constitution? Or did the ratification of the real Bill of Rights preempt that section by giving the people LESS rights? That would be a cruel twist of fate.

    I wonder what would have happened if the Shakers, or the Mormons, or any of the other persecuted religious groups in those states had raised the Northwest Ordinance’s Art. I as a defense in the 1820s-1850s.

  3. Gerard Magliocca says:

    Nice to know that people read CoOp on a Saturday Night. 😉

    Well, the point is about what Bingham thought as his ideas evolved towards incorporation. You can see this as a stepping stone. Some states are bound to obey some parts of the Bill of Rights.

  4. M says:

    This seems like a relevant piece on a related topic.

  5. Joe says:

    It is my understanding that the Congress — now under the Constitution — reauthorized the NWO.

    It would also seem unconstitutional to pass a law involving the territories under our Constitution that is only amendable by “common consent,” since Congress has power over the territories by majority rule.

    I assume the article, book etc. will deal with such issues. The issue of the application of the Bill of Rights to the territories in antebellum times seems to me to get little coverage, at least from the various sources I have seen, so this is of additional interest.