An organic law theory of the Fourteenth amendment: The Northwest ordinance as the source of rights, Privileges, and Immunities

Yale Law Journal

Volumn 120, Issue 7, 2011, Pages 1820-1884

  Hegreness, Matthew J ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79955811731     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (435)

1. DANIEL WEBSTER, First Speech on Foot's Resolution, in 3 THE WORKS OF DANIEL WEBSTER 248, 263 (Boston, Charles C. Little & James Brown 1851).
2. Organic law is law that is fundamental. In a federal republic like the United States, multiple levels of organic law exist. The organic law for the federal government, per the United States Code, consists of the Constitution, the Declaration of Independence, the Articles of Confederation, and the Northwest Ordinance.
3. The Organic Laws of the United States of America, reprinted in 1 UNITED STATES CODE, at XLIII-LXXIII (Office of the Law Revision Counsel of the House of Representatives ed., 2006).
4. For states, constitutions constitute the organic law. For territories, the organic acts passed by Congress, including the Northwest Ordinance, are the organic law.
5. See infra Part I for further discussion of organic law, including the longstanding historical association among the four sources of federal organic law.
6. NORTHWEST ORDINANCE OF 1787, reprinted in 1 UNITED STATES CODE, supra note 2, at LVLVII.
7. The Northwest Ordinance was enacted by the Continental Congress under the Articles of Confederation in 1787.
8. The importance and force of the Northwest Ordinance was such that the Ordinance remained active law under the new Constitution.
9. Many commentators have interpreted an act by Congress in 1789 as a reenactment of the Northwest Ordinance. For a criticism of this interpretation and further evidence of the role of the Ordinance as one of America's crucial founding documents
10. see infra Part I.
11. The Constitution nowhere stipulates whether the new states would enjoy the same status-the same rights, privileges, and advantages-as the original thirteen states.
12. The Constitution simply declares: "New States may be admitted by the Congress into this Union." U.S. CONST. art. IV, § 3.
13. The Northwest Ordinance, however, contains the promise that new states will enter the Union on "equal footing" with the original states.
14. NORTHWEST ORDINANCE OF 1787 § 13, reprinted in 1 UNITED STATES CODE supra note 2, at LVI.
15. Ironically, the declaration of equality among states helped to unravel the Union and necessitate a Fourteenth Amendment. Because of the weaknesses inherent to the Constitution (drafted after the Ordinance), equal footing meant that new states could be just as exploitative of civil rights as the original thirteen. The tension between the Constitution, which did not protect the rights of citizens with respect to state action, and the Northwest Ordinance, which was designed to protect citizens against both state and federal authority, is evident in the decisions of the antebellum Court.
16. See infra Part IV.
17. In the antebellum battle between the two great sources of organic law (the Ordinance and the Constitution), the Constitution won. But the victory was short-lived.
18. The principles of the Ordinance-free soil, civil rights protected against state abridgment, and perpetual union-triumphed over the principles of the Constitution (strong protections for slavery, few restrictions on states) in the Civil War and were enshrined in the Reconstruction Amendments.
19. Bank of Hamilton v. Dudley's Lessee, 27 U.S. 492, 526 (1829) ("If any part of the act be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the constitution of the United States or of the state or to the ordinance of 1787.").
20. In another part of the decision, Chief Justice Marshall considers whether "this law is repugnant to the 10th section of the first article of the constitution of the United States; and to the ordinance of 1787 for the government of the north western territory," but he decided that "these questions" do not "properly arise in the present actual state of this controversy."
21. Id. at 525.
22. Like the Northwest Ordinance, Article I, Section 10 of the Constitution limits the power of states.
23. U.S. CONST. art. I, § 10. Indeed, before the Fourteenth Amendment, these two organic law sources contained the only federal provisions that enumerated and protected the civil rights of citizens against state authorities.
24. Forty years after Bank of Hamilton, the Framers of the Fourteenth Amendment would borrow the "No State shall" language from Article I, Section 10 to protect the rights, privileges, and immunities enumerated in the Northwest Ordinance. U.S. CONST. amend. XIV, § 1.
25. For one example of the influence of the Ordinance on the Bill of Rights see Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 YALE L.J. 408, 446 (2010)
26. Discussing how Madison likely borrowed from the Ordinance in drafting the Fifth Amendment, as both contain a law-of-the-land clause alongside protection for criminal defendants and a takings clause.
27. See infra Part II for a discussion of the importance of the Ordinance in the state constitutions.
28. The language of the Thirteenth Amendment echoes the words of the Ordinance.
29. Compare U.S. CONST. amend. XIII, § 1 ("Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."), with NORTHWEST ORDINANCE OF 1787 § 14, art. VI, reprinted in 1 UNITED STATES CODE
30. supra note 2, at LVII ("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.").
31. For a discussion of the origin of the Thirteenth Amendment's language in the Northwest Ordinance
32. see George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 VA. L. REV. 1367, 1369, 1372-74 (2008).
33. Similar to how the Ordinance had become the template for the extension of personal rights, "[b]y the time the Thirteenth Amendment was proposed, the Northwest Ordinance had become the template for federal legislation abolishing slavery."
34. Id. at 1373.
35. B.A. HINSDALE, THE OLD NORTHWEST: WITH A VIEW OF THE THIRTEEN COLONIES AS CONSTITUTED BY THE ROYAL CHARTER 271 (New York, Townsend MacCoun 1888).
36. The Ordinance was the first instance in written constitutional law "of a provision maintaining the obligation of contracts.
37. Six weeks later it was, on motion of Mr. King of Massachusetts, incorporated in the draft of the Constitution of the United States." WILLIAM FREDERICK POOLE, THE ORDINANCE OF 1787, AND DR. MANASSEH CUTLER AS AN AGENT IN ITS FORMATION 4 (Cambridge, Mass., Welch, Bigelow & Co. 1876).
38. The Bill of Rights was designed as a restraint on a limited federal government, and thus its purpose was to define not the fundamental rights of citizens but rather the most important limitations on government.
39. In addition, the Ninth Amendment declares that additional rights not in the Bill are retained by the people, expressly directing readers to look beyond the four corners of the Constitution to identify the fundamental rights of citizens. U.S. CONST. amend. IX. For a leading exposition of this idea
40. see John Hart Ely, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 34-41 (1980).
41. See infra Section III.A.
42. NORTHWEST ORDINANCE OF 1787 § 13, reprinted in 1 UNITED STATES CODE
43. supra note 2, at LVI.
44. This tally is through the end of 1868.
45. See infra note 13.
46. For the list of states, see Proclamation No. 13, 15 Stat. 708, 709-11 (1868) (proclamation by William H. Seward, Secretary of State of the United States).
47. Seward's list of thirty includes New Jersey and Ohio, which had rescinded their ratification by the time of the proclamation.
48. Since they were included as official ratifications by Congress, this Note includes them in its tallies (if they are excluded, the Ordinance is the basis of the organic law for twenty-six of twenty-eight states that ratified the Fourteenth Amendment by the time of Seward's proclamation).
49. No other states ratified by the end of 1868, though Oregon withdrew its ratification by the end of the year. Three-fourths of the states were needed to satisfy the requirements of Article V of the Constitution, which means twenty-eight of the then-thirty-seven states were needed for ratification.
50. For a history of this unconventional ratification process
51. see 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 160-234 (1998).
52. For a critique of Ackerman's history, see AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 601 n.19 (2005).
53. The primary drafters were Senator Howard of Michigan and Representative Bingham of Ohio.
54. See infra Part V for a discussion of their views on organic law and the Fourteenth Amendment.
55. Lincoln was not born in the Northwest Territory, but he moved to Indiana when he was eight years old and settled in Illinois.
56. Andrew Johnson and Chester A. Arthur were never elected, inheriting the presidency as the result of assassins' bullets rather than popular ballots. Ulysses S.
57. Grant, Rutherford B. Hayes, James A. Garfield, Benjamin Harrison, and William McKinley were all born in Ohio.
58. Grover Cleveland was the only president elected from 1861-1904 that was born in a state that was not once part of the Northwest Territory.
59. In 1904, Theodore Roosevelt, from New York, was elected to the presidency (having previously inherited it upon the assassination of McKinley).
60. Interestingly, Taft and Harding were also from Ohio, and thus only four of the eleven elected presidents from 1861 to 1923 were not born in Ohio: Lincoln, Cleveland, Roosevelt, and Wilson.
61. See Jane A. Stewart, Presidents of the United States, 92 J. EDUC. 404 (1920).
62. Many of these eighteen states were part of multiple territories and had the principles of the Ordinance extended to them multiple times.
63. See infra Part II for a complete history.
64. Eight of the original thirteen states were present and unanimously passed the Northwest Ordinance on July 13, 1787.
65. The lone dissenter was Abraham Yates of New York.
66. Despite the prohibition on slavery in the territories, the four southernmost states-Virginia, North Carolina, South Carolina, and Georgia-were present and voted for the Ordinance without dissent.
67. See 32 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 334-43 (Roscoe R. Hill ed., 1936)
68. see also Denis P. Duffey, The Northwest Ordinance as a Constitutional Document, 95 COLUM. L. REV. 929, 937 (1995) (discussing the context of the Ordinance's passage).
69. The original thirteen states are treated together in this Note. For none of them were the Northwest Ordinance's provisions individually binding as they were on the states formed in the territories.
70. Nevertheless, the Northwest Ordinance was a self-conscious declaration of the rights common among the original states, and the absence of some of the states in the final vote on the Northwest Ordinance in 1787 did not affect their relation to the Ordinance.
71. See infra Section III.B for a further discussion of the significance of the Ordinance to the original thirteen states.
72. NORTHWEST ORDINANCE OF 1787 § 13, reprinted in 1 UNITED STATES CODE supra note 2, at LVI.
73. See infra Part III.
74. U.S. CONST. amend. XIV, § 1. For an understanding of Section Five of the Fourteenth Amendment, which was intended to function in conjunction with Section One see Steven A. Engel, The McCulloch Theory of the Fourteenth Amendment, 109 YALE L.J. 115 (1999).
75. See also Akhil Reed Amar, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 175 n.* (1998) ("[M]any congressional architects of Reconstruction envisioned not only judicial enforcement of section I but also-and perhaps more centrally-congressional enforcement.").
76. See AMAR, supra note 20, at 163-80 (presenting a theory favoring refined incorporation of the Bill of Rights via the Fourteenth Amendment)
77. Michael Kent Curtis, NO STATE SHALL ABRIDGE (1986) (arguing for the importance of the Privileges or Immunities Clause in incorporating the Bill of Rights)
78. John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385 (1992) (discussing the equal protection inherent in the Privileges or Immunities Clause).
79. But see Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 STAN. L. REV. 5 (1949) (discussing the evidence against complete incorporation of the Bill of Rights).
80. The importance of the Privileges or Immunities Clause is well appreciated by at least one member of the current Court.
81. See McDonald v. City of Chi., 130 S. Ct. 3020, 3059 (2010) (Thomas, J., concurring in part and concurring in the judgment)
82. Clarence Thomas, The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment, 12 HARV. J.L. & PUB. POL'Y 63 (1989).
83. Although Justice Thomas's concurrence does not cite the Northwest Ordinance, it highlights the importance of the treaties in helping to establish the privileges or immunities of the United States.
84. See, e.g., McDonald, 130 S. Ct. at 3068-70.
85. Part II reveals how the words "privileges" and "immunities" in many of the treaties cited by Justice Thomas were given substance by the Northwest Ordinance and other territorial organic acts.
86. McDonald, 130 S. Ct. at 3036 (majority opinion) (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997).
87. McDonald, 130 S. Ct. at 3036 (Thomas, J., concurring in part and concurring in the judgment) (citing Duncan v. Louisiana, 391 U.S. 145, 149 n.14 (1968).
88. A related standard, invoked in McDonald, is whether rights "are 'the very essence of a scheme of ordered liberty' and essential to 'a fair and enlightened system of justice.'" Id. at 3032 (majority opinion) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937).
89. Although the court has "used different formulations in describing the boundaries of due process," id., the test is the same whether the right in question derives from the Bill of Rights, the Northwest Ordinance, or some other source.
90. See generally id. at 3031-36 (discussing the history of substantive due process, the Court's chosen vehicle for the incorporation of fundamental rights).
91. NORTHWEST ORDINANCE OF 1787 § 13, reprinted in 1 UNITED STATES CODE, supra note 2, at LVI.
92. See McDonald, 130 S. Ct. at 3035 n.13.
93. It is important to note that the Eighth Amendment's freedom from excessive bail and the Ordinance's right to bail for all but certain capital cases are distinct rights.
94. See, e.g., Act of Mar. 30, 1822, ch. 13, 3 Stat. 654 (protecting both rights). Neither right has been incorporated against the states.
95. The majority in McDonald implied in dicta that the prohibition against excessive bail has been incorporated against the states, 130 S. Ct. at 3035 n.12, but the case McDonald cites for support made clear that they were "not at all concerned here with any fundamental right to bail or with any Eighth Amendment-Fourteenth Amendment question of bail excessiveness."
96. Schilb v. Kuebel, 404 U.S. 357, 365 (1971).
97. The Court in Schilb did note, however, that the "Eighth Amendment's proscription of excessive bail has been assumed [in the circuit courts] to have application to the States through the Fourteenth Amendment."
98. Id. Regardless, the right of bail in the Northwest Ordinance (for all but capital cases) is potentially stronger than the immunity from excessive bail (protected by the Eighth Amendment).
99. Together, these two provisions provide an aggregate right to bail for state citizens (or rather for "persons" since the Court incorporates fundamental rights through the Due Process Clause) that the federal government has a duty to protect against abridgement.
100. Others sources that influenced the understanding of privileges and immunities around the time of the Fourteenth Amendment's ratification include the landmark legislation passed during Reconstruction (such as the Civil Rights Act of 1866) as well as infamous court decisions (such as Dred Scott).
101. See, e.g., AMAR, supra note 20
102. CURTIS, supra note 21.
103. The importance of territorial expansion for the spread of the Bill of Rights and other privileges and immunities has been discussed by Professor Amar.
104. See AMAR, supra note 20, at 247-52 (discussing freedom of religion and other rights in the federal territories).
105. The influence of the territorial experience on John Bingham, one of the framers of the Fourteenth Amendment, has also been considered.
106. See infra Section V.A for a discussion of Bingham's views in relation to the Northwest Ordinance.
107. See AMAR, supra note 20, at 138 (discussing the "extraordinary number of twentieth-century legal giants who have locked horns in the debate").
108. For a discussion of the importance of the Ordinance in federal court opinions before the Civil War
109. see infra Part IV. During Reconstruction, John A. Campbell, who had been a Justice of the Supreme Court before resigning at the start of the Civil War, invoked the Ordinance in the Slaughterhouse Cases on behalf of the plaintiffs.
110. See The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 49 (1872) ("The thirteenth amendment prohibits 'slavery and involuntary servitude.'
111. The expressions appeared in the great Ordinance of 1787 In that Ordinance they are associated with enactments affording comprehensive protection for life, liberty, and property; for the spread of religion, morality, and knowledge; for maintaining the inviolability of contracts, the freedom of navigation upon the public rivers, and the unrestrained conveyance of property by contract and devise, and for equality of children in the inheritance of patrimonial estates.") (argument of plaintiff in error).
112. Although the term organic law is used in this Note to refer only to the fundamental laws of governments, any political system can have organic laws. Administrative agencies and corporations have organic laws: the charters that create the structure of the entities and define the rights of persons with respect to those entities. For example, in 1862 Lincoln signed the Department of Agriculture Organic Act, which established the structure and duties of the Department.
113. Act of May 15, 1862, ch. 72, 12 Stat. 387.
114. In his First Inaugural Address, Abraham Lincoln referred twice to "organic law," revealing his belief that the Constitution constituted the organic law of the United States and that organic law is the "fundamental law" of any government.
115. See First Inaugural Address of Abraham Lincoln (Mar. 4, 1861) in 6 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1908, at 5-12 (James D. Richardson ed., 1909).
116. Lincoln's first invocation of organic law made it clear that organic law was a general class of which the Constitution was an instantiation: Perpetuity is implied, if not expressed, in the fundamental law of all National governments.
117. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our national Constitution, and the Union will endure forever Id. at 7.
118. In his second use of "organic law," he made it clear that he thought the Constitution did not directly address many of the most contentious issues in antebellum America: All the vital rights of minorities and of individuals are so plainly assured that controversies never arise concerning them.
119. But no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration.
120. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions.
121. The Court explained in 1879: "The organic law of a Territory takes the place of a constitution as the fundamental law of the local government.
122. It is obligatory on and binds the territorial authorities" Nat'l Bank v. Cnty. of Yankton, 101 U.S. 129, 133 (1879).
123. Counsel for the plaintiffs in the Slaughterhouse Cases called the Northwest Ordinance "[t]he American constitution for that great territory [Northwest Territory]." The Slaughterhouse Cases, 83 U.S. at 50.
124. The use of the term "organic act" to describe the fundamental law that organizes a territory continued well into the twentieth century.
125. See, e.g., Organic Act of Guam, ch. 512, 64 Stat. 384 (1950) (codified as amended at 48 U.S.C. §§ 1421-1428 (2006).
126. BLACK'S LAW DICTIONARY 1209 (9th ed. 2009).
127. BALLENTINE'S LAW DICTIONARY 898 (3d ed. 1969) ("[O]rganic law. Constitutional law or, at least, law which carries a high degree of authority The basic law of a state or a society").
128. Lessee of Pollard's Heirs v. Kibbe, 39 U.S. (14 Pet.) 353, 417 (1840) (Baldwin, J., concurring).
129. Justice Baldwin wrote: But I do not rest this point on judicial authority, a higher power confers inviolable sanctity on the right of the inhabitants, and proprietors of land in the disputed territory, which this Court will never question.
130. The ordinance of 1787 is declared to be a compact between the original states and the people and states in the said territory, and "shall forever remain inviolable, unless by common consent."
131. The sixth article of the Constitution declares, that "all debts contracted, and all engagements entered into, before the adoption of this constitution, shall be as valid against the United States under this Constitution as under the confederation."
132. Thus this ordinance, the most solemn of all engagements, has become a part of the Constitution, and is valid to protect and forever secure the rights of property and judicial proceedings to the inhabitants of every territory to which it applies.
133. Id. (citations omitted). Justice Baldwin's views on the Northwest Ordinance were adopted by Justice Catron in his concurrence in Dred Scott.
134. See Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393, 522 (1857) (Catron, J., concurring), superseded by constitutional amendment, U.S. CONST. amend. XIV.
135. HENRY BALDWIN, A GENERAL VIEW OF THE ORIGIN AND NATURE OF THE CONSTITUTION AND GOVERNMENT OF THE UNITED STATES, DEDUCED FROM THE POLITICAL HISTORY AND CONDITION OF THE COLONIES AND STATES, FROM 1774 UNTIL 1788, at 90 (Phila., John C. Clark 1837).
136. Bank of Hamilton v. Dudley's Lessee, 27 U.S. (2 Pet.) 492, 526 (1829) ("If any part of the act be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the constitution of the United States or of the state or to the ordinance of 1787.").
137. For example, Congress had no authority to regulate the territories and pass the Ordinance under the Articles of Confederation.
138. This illegality or irregularity may be a common feature of organic law; it accords with Bruce Ackerman's theory of constitutional moments, when transformative periods (such as Reconstruction and the New Deal) leave indelible marks on constitutional law by transcending the bounds of normal lawmaking.
139. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991).
140. Unconventionality may be a general characteristic of "higher laws"-those laws that supersede normal laws.
141. While the Ordinance's status as organic law is undeniable, other transformative statutes may deserve the status of organic law in the United States.
142. Prime candidates from the twentieth century include landmark legislation from the New Deal and from the Civil Rights Era.
143. See generally ACKERMAN, supra note 13 (discussing the New Deal as well as Reconstruction)
144. Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1737 (2007) (discussing the Civil Rights Act of 1964).
145. BALDWIN, supra note 39, at 89.
146. Strader v. Graham, 51 U.S. (10 How.) 82, 96 (1850).
147. But see Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393, 522 (1857) (Catron, J., concurring) (adopting Justice Baldwin's views of the Ordinance), superseded by constitutional amendment, U.S. CONST. amend. XIV.
148. The boundaries of federal organic law are difficult to define, and only in retrospect are many documents considered as components of organic law.
149. Nations often have ancient and fundamental documents, such as the Magna Carta in England, the authority of which rivals many constitutions and which are included as part of federal organic law.
150. These four documents originally appeared by Congressional fiat in the second edition of the Revised Statutes.
151. Act of Mar. 2, 1877, ch. 82, § 3, 19 Stat. 268, 269
152. see THE ORGANIC LAWS OF THE UNITED STATES OF AMERICA (George H. Boutwell ed., Government Printing Office, 1878) (supplementing the government's first official efforts in the 1870s to codify the acts of Congress in the Revised Statutes).
153. The federal organic laws began on the first page of the second edition of the Revised Statutes.
154. The Organic Laws of the United States of America, reprinted in 1 REVISED STATUTES OF THE UNITED STATES 1-57 (2d ed. 1878).
155. They now appear in a special section immediately preceding Title 1 of the United States Code.
156. The Organic Laws of the United States of America, reprinted in 1 UNITED STATES CODE, supra note 2, at XLIII-LXXIII.
157. They appear in every United States Code beginning in 1926 (after the second edition of the Revised Statutes, discussed supra note 46
158. an updated and official codification of the general permanent laws of the United States would not appear until the 1920s with the first United States Code).
159. See The Organic Laws of the United States of America, UNITED STATES CODE OF 1926, 44 Stat., at MDCCCLV.
160. Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 51.
161. See, e.g., Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393, 438 (1857), superseded by constitutional amendment, U.S. CONST.
162. amend. XIV; PETER S. ONUF, STATEHOOD AND UNION: A HISTORY OF THE NORTHWEST ORDINANCE, at xviii (1987)
163. Christina Duffy Burnett, Untied States: American Expansion and Territorial Deannexation, 72 U. CHI. L. REV. 797, 825 n.127 (2005).
164. Numerous other examples could be provided besides Onuf's and Burnett's excellent works.
165. Ch. 8, 1 Stat. at 51 n.a.
166. Indeed, the footnote is absent in Story's Laws, 1 JOSEPH STORY, THE PUBLIC AND GENERAL STATUTES PASSED BY THE CONGRESS OF THE UNITED STATES OF AMERICA 32 (Boston, Wells & Lilly 1827), which was the standard source for the early laws of the republic before the Statutes at Large was published.
167. For support for the contention that the Ordinance had force of its own, independent of acts of Congress under the Constitution
168. see David P. Currie, The Constitution in Congress: Substantive Issues in the First Congress, 1789-1791, 61 U. CHI. L. REV. 775, 845-46 (1994).
169. Justice Baldwin similarly argued that the Ordinance had force absent the reenactment.
170. See supra notes 37-39 and accompanying text. Although it was likely an act of minor housekeeping rather than a reenactment of the Northwest Ordinance, the Act of 1789 (like so many acts during the next century) was a reaffirmation of the principles of the Ordinance of 1787.
171. Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193, 1221 (1992).
172. Id. (citing 1 WILLIAM BLACKSTONE, COMMENTARIES *127-45).
173. AMAR, supra note 20, at 167, 361 nn.10-11 (comparing the protections in the Federal Bill of Rights with those rights protected by one of the territorial organic acts).
174. See infra notes 155-156 and accompanying text.
175. For a list of ratifying states, see Proclamation No. 13, 15 Stat. 708, 709-11 (1868) (proclamation by William H. Seward, Secretary of State of the United States).
176. See also Ferdinand F. Fernandez, The Constitutionality of the Fourteenth Amendment, 39 S. CAL. L. REV. 378, 380 n.13 (1966).
177. Maine, which ratified in 1867, was originally part of Massachusetts, and Vermont, which ratified in 1866, was an independent republic before becoming a state.
178. The Ordinance also preceded state constitutions in the minds of citizens of the Northwest Territories: "Before Ohio was even a state, it was a federal territory, governed by the federal Constitution and the Union's Northwest Ordinance.
179. For Bingham, these documents came first, framing the state and constraining its lawful powers." AMAR, supra note 20, at 158.
180. NORTHWEST ORDINANCE OF 1787, arts. I-IV, reprinted in 1 UNITED STATES CODE, supra note 2, at LVI-LVII.
181. Id. art. III, at LVII.
182. Although outside the scope of this Note, the Northwest Ordinance also contains strong support for the privileges and immunities of "Indians not taxed" as well as for white inhabitants of the territories.
183. Article 3 contains two sentences: one about education (printed above), and the following ringing declaration of Indian rights: The utmost good faith shall always be observed towards the Indian; their lands and property shall never be taken from them without their consent; and in their property, rights, and liberty they never shall 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.
184. Id. art. III, reprinted in 1 UNITED STATES CODE, supra note 2, at LVII.
185. Spooner v. McConnell, 22 F. Cas. 939, 949 (No. 13,245) (C.C.D. Ohio 1838) (considering the extent to which tolls could be added to navigable rivers to pay for improvements).
186. Justice McLean, who also presided over the case while riding circuit, agreed in a separate opinion that much of the Ordinance, including the provision for free use of waterways, was in force in the state of Ohio.
187. See infra Part IV for a discussion of the continuing force of the Ordinance in the states after they acquired statehood.
188. Spooner, 22 F. Cas. at 949.
189. NORTHWEST ORDINANCE OF 1787 § 13, reprinted in 1 UNITED STATES CODE, supra note 2, at LVI.
190. Id. art. VI, at LVII.
191. Act of May 7, 1800, ch. 41, § 2, 2 Stat. 58, 59.
192. For a discussion of why the territory was divided, see JAMES R. ALBACH, ANNALS OF THE WEST: EMBRACING A CONCISE ACCOUNT OF PRINCIPAL EVENTS WHICH HAVE OCCURRED IN THE WESTERN STATES AND TERRITORIES, FROM THE DISCOVERY OF THE MISSISSIPPI VALLEY TO THE YEAR EIGHTEEN HUNDRED AND FIFTY-SIX 753-57 (Pittsburgh, W.S. Haven 1858).
193. The act enabling Ohio to become a state in 1802 declared that territory not included within the boundary prescribed for Ohio would be "attached to, and made a part of the Indiana territory and the inhabitants therein shall be entitled to the same privileges and immunities, and subject to the same rules and regulations, in all respects whatever, with all other citizens residing within the Indiana territory." Act of Apr. 30, 1802, ch. 40, § 3, 2 Stat. 173, 174.
194. As noted above, those privileges and immunities to which the other citizens of the Indiana Territory were entitled were those "granted and secured to the people by" the Northwest Ordinance. Act of May 7, 1800, § 2, 2 Stat. at 59.
195. On June 28, 1834, Congress passed an act that attached "half of present-day Minnesota, all of present-day Iowa and the eastern" halves of North and South Dakota to the Territory of Michigan.
196. Sarah Lanier Hollingsworth, A Bibliographic Survey of Prestatehood Legal Resources for the State of South Dakota, in 2 PRESTATEHOOD LEGAL MATERIALS 1077, 1103 (Michael Chiorazzi & Marguerite Most eds., 2005).
197. The act declared that "the inhabitants therein shall be entitled to the same privileges and immunities, and be subject to the same laws, rules, and regulations, in all respects, as the other citizens of Michigan territory." Act of June 28, 1834, ch. 98, 4 Stat. 701.
198. A few years later, the territory of Michigan was subdivided so that the state of Michigan could be formed out of the larger territory.
199. See Act of Jan. 26, 1837, ch. 6, 5 Stat. 144.
200. The rest of the territory became the Territory of Wisconsin (which included present-day Wisconsin, Minnesota, Iowa, and the eastern half of the Dakotas).
201. See Hollingsworth, supra, at 1104.
202. Congress transferred to the inhabitants of the Wisconsin territory: the rights, privileges, and advantages, granted and secured to the people of the Territory of the United States northwest of the river Ohio, by the [Northwest Ordinance] The said inhabitants shall also be entitled to all the rights, privileges, and immunities, heretofore granted and secured to the Territory of Michigan, and to its inhabitants, and the existing laws of the Territory of Michigan shall be extended over said Territory and further, the laws of the United States are hereby extended over, and shall be in force in, said Territory, so far as the same, or any provisions thereof may be applicable.
203. Act of Apr. 20, 1836, ch. 54, § 12, 5 Stat. 10, 15.
204. Proclamation No. 13, 15 Stat. 708, 709-11 (1868) (proclamation by William H. Seward, Secretary of State of the United States).
205. When the Territory of Wisconsin was divided in 1838 to create the Territorial Government of Iowa, the inhabitants of the new Iowa Territory were extended all the "rights, privileges and immunities heretofore granted and secured to the Territory of Wisconsin and to its inhabitants."
206. Act of June 12, 1838, ch. 96, § 12, 5 Stat. 235, 239.
207. When the State of Wisconsin was added in 1848, Act of May 29, 1848, ch. 50, 9 Stat. 233, and the remaining area of the Territory of Wisconsin became the Territory of Minnesota in 1849, it was enacted: That the inhabitants of the [Minnesota] Territory shall be entitled to all the rights, privileges, and immunities heretofore granted and secured to the territory of Wisconsin and to its inhabitants; and the laws in force in the Territory of Wisconsin at the date of the admission of the State of Wisconsin shall continue to be valid and operative therein
208. Act of Mar. 3, 1849, ch. 121, § 12, 9 Stat. 403, 407 (emphasis added).
209. This act is again a substantive transfer of rights to a new territory as an older territory is extinguished, and the phrase "rights, privileges, and immunities" is repeated to capture all the substantive protections for the citizens of the territory as expressed by the Ordinance.
210. The original imprinting has been discussed as important.
211. See POOLE, supra note 8, at 6 ("It stamped itself upon the soil while it was yet a wilderness, and its impress can be seen today in the laws, the character, the social habits, and thrift of these great Northwestern States.").
212. Act of May 26, 1790, ch. 14, 1 Stat. 123.
213. Id. § 1 (citing Act of Apr. 2, 1790, ch. 6, 1 Stat. 106).
214. Act of Apr. 2, 1790, ch. 6, 1 Stat. 106, 108.
215. See infra notes 102-104 and accompanying text.
216. Articles of Agreement and Cession, U.S.-Ga., Apr. 24, 1802, reprinted in GEORGE POINDEXTER, THE REVISED CODE OF THE LAWS OF MISSISSIPPI IN WHICH ARE COMPRISED ALL SUCH ACTS OF THE GENERAL ASSEMBLY, OF A PUBLIC NATURE, AS WERE IN FORCE AT THE END OF THE YEAR 1823; WITH A GENERAL INDEX 502-05 (Natchez, Francis Baker 1824).
217. Id. at 504.
218. Congress had previously extended the rights of the Ordinance to the territory, while Georgia and the Union disputed claims to the land: [T]he people of the aforesaid territory, shall be entitled to and enjoy all and singular the rights, privileges and advantages granted to the people of the territory of the United States, northwest of the river Ohio, in and by the aforesaid ordinance of the thirteenth day of July, in the year one thousand seven hundred and eighty-seven
219. Act of Apr. 7, 1798, ch. 28, § 6, 1 Stat. 549, 550.
220. Georgia and the Mississippi Territory formed the entire southern border of the United States in 1802 until the Louisiana Purchase the following year.
221. Treaty Between the United States of America and the French Republic, art. III, Apr. 30, 1803, 8 Stat. 200, 202.
222. Proclamation No. 13, 15 Stat. 708, 709-11 (1868) (proclamation by William H. Seward, Secretary of State of the United States) (listing all the ratifying states).
223. Treaty Between the United States of America and the French Republic, supra note 83, art. III.
224. See AMAR, supra note 20, at 167 & n.*, 361 nn.11-12
225. see also Arnold T. Guminski, The Rights, Privileges, and Immunities of the American People: A Disjunctive Theory of Selective Incorporation of the Bill of Rights, 7 WHITTIER L. REV. 765, 783-90 (1985) (discussing the Louisiana Purchase Treaty and several other treaties).
226. This scholarship complements the story told here, providing evidence for the widespread usage of the terms "privileges" and "immunities" to describe the rights of citizens in the territories.
227. Kurt T. Lash, The Origins of the Privileges or Immunities Clause, Part I: 'Privileges and Immunities' as an Antebellum Term of Art, 98 GEO. L.J. 1241 (2010).
228. Id. at 1285.
229. Act of Mar. 26, 1804, ch. 38, 2 Stat. 283.
230. With regard to courts, these privileges and immunities to which "[t]he inhabitants of the said territory shall be entitled" included the trial by jury for capital prosecutions by a "jury of twelve," the benefits of the "writ of habeas corpus," the privilege of bailability "unless for capital offences where the proof shall be evident, or the presumption great," and immunity against the infliction of "cruel and unusual punishments."
231. Id. § 5.
232. It further provided a list of federal laws of the United States that would "have full force and effect in the above mentioned territories," including patent and copyright acts and prohibitions against the exportation of slaves.
233. Id. § 7.
234. It declared, however, that the "laws in force in the said territory, at the commencement of this act, and not inconsistent with the provisions thereof, shall continue in force, until altered, modified, or repealed by the legislature."
235. Id. § 11.
236. Since most of the rights guaranteed to the citizens of the Territory of Orleans are adopted almost verbatim from the Northwest Ordinance, these rights are in many ways those of the Northwest Ordinance.
237. Act of Mar. 2, 1805, ch. 23, 2 Stat. 322.
238. Id. § 1.
239. See infra Part V for a discussion of the importance of this organic act in the antebellum courts.
240. This "district of Louisiana," was to be governed by the judges and governor of the Indiana Territory. Act of Mar. 26, 1804, ch. 38, § 12, 2 Stat. at 287.
241. Act of May 7, 1800, ch. 41, § 2, 2 Stat. 58, 59
242. see supra note 67 and accompanying text.
243. The act gave the judges and governor power to make all laws which they may deem conducive to the good government of the inhabitants thereof: Provided however, that no law shall be valid which is inconsistent with the constitution and laws of the United States, or which shall lay any person under restraint or disability on account of his religious opinions, profession, or worship; in all of which he shall be free to maintain his own, and not [burdened] those of another: And provided also, that in all criminal prosecutions, the trial shall be by a jury of twelve good and lawful men of the vicinage, and in all civil cases of the value of one hundred dollars, the trial shall be by jury, if either of the parties require it.
244. Act of Mar. 26, 1804, ch. 38, § 12, 2 Stat. 283, 287.
245. The words "no law shall be valid which is inconsistent with the constitution and the laws of the United States" could mean that the Northwest Ordinance (or the Bill of Rights) would protect citizens in the territories. One could argue that the provisions for freedom of religion in this Act suggest that neither the Bill of Rights nor the Ordinance applied in the territories, since they both protected the freedom of religion. When protecting fundamental rights, however, the government is prone to redundancy (for example, some might say that a single Due Process Clause could provide all the protections that are needed from organic laws).
246. In addition, the provision in this act may express more than freedom of religion: an inhabitant of the territory is not only free to practice his or her religion but is also immune from legal disability because of the practice of that religion.
247. The wording in this act about religion has a flavor of equal protection that puts it beyond the crude guarantee of free exercise.
248. Another potential conflict with the Bill of Rights is the provision in the Act that provided for a trial by jury "if either of the parties require it" in "all civil cases of the value of one hundred dollars."
249. Id. On its face, the Act seems inconsistent with the Seventh Amendment, which provides that the "trial by jury shall be preserved" where the "value in controversy shall exceed twenty dollars." U.S. CONST. amend. VII. This seeming contradiction between this Act and the Bill of Rights is resolved under a states-rights reading of the Seventh Amendment. Under such a reading, the Seventh Amendment simply meant to "preserve" trials when trials were preexisting (and since the Territory of Louisiana was formerly under the control of France, where there was no common law, there were no trials to preserve).
250. See AMAR, supra note 20, at 391 n.171 (proposing a states-rights reading of the Seventh Amendment in which the Northwest Ordinance set the baseline for rights in the territories).
251. Although the Bill of Rights and this organic act may not conflict, the seeming inconsistency highlights how applications of the Bill of Rights to the territories or states formed after 1781 are often contrived and strained.
252. Unlike the Northwest Ordinance, the Bill of Rights is supposed to restrain federal power and to help "preserve" the baseline rights of U.S. citizens. It is the Northwest Ordinance that actually sets the baseline.
253. The organic act of 1804 provided for an additional mechanism by which a law inconsistent with the Ordinance or the Bill of Rights could be struck down.
254. The governor was required not only to "publish throughout the said district, all the laws which may be made as aforesaid" but also "from time to time [to] report the same to the President of the United States, to be laid before Congress, which, if disapproved of by Congress, shall thenceforth cease, and be of no effect." Act of Mar. 26, 1804, ch. 38, § 12, 2 Stat. at 287.
255. Congress thus preserved for itself the veto power for all laws in the district of Louisiana.
256. The name was changed from district to Territory of Louisiana in 1805. Act of Mar. 3, 1805, ch. 31, 2 Stat. 331.
257. The essential provisions of the 1804 Act were reenacted in 1805, except that the district was no longer governed by the officials from the Indiana Territory. Even after territory of Missouri was created, those provisions that were not repugnant to the organic laws of Missouri continued in force.
258. See Act of June 4, 1812, ch. 95, § 16, 2 Stat. 743, 747.
259. Act of June 4, 1812, ch. 95, 2 Stat. 743.
260. Id. § 14, 2 Stat. at 747.
261. The 1812 Act also added the two personal rights from the Fourth Article of the Ordinance.
262. See supra quotation accompanying note 60 for the personal rights in the Ordinance.
263. The 1812 Act declared: "The lands of non-resident proprietors shall never be taxed higher than those of residents.
264. The Mississippi and Missouri rivers, and the navigable waters flowing into them, and the carrying places between the same, shall be common highways and forever free to the people of the said territory and to the citizens of the United States, without any tax, duty or impost therefor."
265. Id. § 15, 2 Stat. at 747.
266. Congress's decision to place these additional rights in a separate section from those rights expressed in the first three of the Articles of Compact suggests that they occupy a secondary status.
267. This accords with the view of the court in Spooner.
268. See supra notes 63-64 and accompanying text.
269. Act of Aug. 14, 1848, ch. 177, § 14, 9 Stat. 323, 329.
270. See O.C. GARDINER, THE GREAT ISSUE: OR, THE THREE PRESIDENTIAL CANDIDATES 151 (New York, Wm. C. Bryant & Co. 1848).
271. Senator John A. Dix from New York spoke at length in the Senate about the rights, privileges, and immunities of citizens secured by the impending bill to create the territory of Oregon on July 26, 1848.
272. He declared: In order to see what rights, privileges, and immunities the people of Oregon are to acquire, we must refer to the act organizing the Territory of Iowa We must next have recourse to the act organizing the Territory of Wisconsin [which provides] that the inhabitants of said Territory shall be entitled to, and enjoy all and singular the rights, privileges and advantages granted and secured to the people of the Territory of the United States northwest of the river Ohio, by the articles of the compact contained in the ordinance for the government of the said Territory, passed on the 13th day of July, 1787
273. Id. at 166.
274. He then went on to state that the "exclusion of slavery from the Northwest Territory by the ordinance is to be referred rather to the class of restrictions and prohibitions than to that of privileges and immunities."
275. This distinction between restrictions and "privileges and immunities" relates to the distinction between the Constitution and the Northwest Ordinance in the territories-the Constitution authorizes the creation of rules and regulations whereas the Northwest Ordinance enumerates rights, privileges, and immunities
276. This distinction recapitulates the understanding of the roles of the Constitution and the Ordinance to the territories held almost sixty years earlier.
277. See supra Subsection II.C.1. 105.
278. See, e.g., Howard Jay Graham, The "Conspiracy Theory" of the Fourteenth Amendment, 47 YALE L.J. 371, 393 (1938).
279. See infra Part V for Graham's treatment of this issue, which focuses on the Northwest Ordinance's influence on Representative John Bingham's theories of due process.
280. See supra Part II
281. NORTHWEST ORDINANCE OF 1787 §§ 13-14, reprinted in 1 UNITED STATES CODE, supra note 2, at LVI
282. See supra note 60 and accompanying text
283. NORTHWEST ORDINANCE OF 1787 § 13, reprinted in 1 UNITED STATES CODE, supra note 2, at LVI.
284. Id. § 14, art. V, at LVII.
285. For a discussion of the original understanding of the Republican Guarantee Clause
286. See AMAR, supra note 13, at 276-81
287. According to Professor Amar, the essence of a republican government at the founding was popular sovereignty.
288. NORTHWEST ORDINANCE OF 1787, art. V, reprinted in 1 UNITED STATES CODE, supra note 2, at LVII.
289. Id. § 13, at LVI.
290. Act of Apr. 30, 1802, ch. 40, § 5, 2 Stat. 173, 174.
291. Compare OHIO CONST. of 1802, art. VIII, § 3, reprinted in ISAAC FRANKLIN PATTERSON, THE CONSTITUTIONS OF OHIO 90 (1912) ("[R]eligion, morality, and knowledge being essentially necessary to good government and the happiness of mankind, schools and the means of instruction shall forever be encouraged by legislative provision not inconsistent with the rights of conscience."), with NORTHWEST ORDINANCE OF 1787 § 14, art. III, reprinted in 1 UNITED STATES CODE
292. supra note 2, at LVII ("Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.").
293. Act of Apr. 18, 1818, ch. 67, § 4, 3 Stat. 428, 430 (enabling act for Illinois)
294. Act of Apr. 19, 1816, ch. 57, § 4, 3 Stat. 289, 290 (enabling act for Indiana) ("[T]he said convention. shall then form. a constitution and a state government: Provided That the same, whenever formed, shall be republican, and not repugnant to those articles of the [Northwest Ordinance]."). The importance of the Northwest Ordinance in the framing of new state governments continued even after the Civil War and Reconstruction
295. See, e.g., SHOSUKE SATO, HISTORY OF THE LAND QUESTION IN THE UNITED STATES 120 (Elibron Classics ed. 2006) (1886) ("The wise and enlightened principles of the ordinance pervade the government and life of the people in the remaining Territories. When they grow in population to the required standard, they too will have State Constitutions, republican in form, and 'not repugnant to the principles of the ordinance,' and will be admitted into the Union.").
296. John Eastman has argued that the "fundamental principles" referenced in Section Twelve of the Ordinance were the principles of the Declaration of Independence.
297. John C. Eastman, Reevaluating the Privileges or Immunities Clause, 6 CHAP. L. REV. 123, 130-33 (2003).
298. He even argues that the prohibition on slavery in the Articles of Compact was "mandated by. the principles of the Declaration."
299. Id. at 130.
300. While Professor Eastman reads the Articles of Compact (especially the prohibition on slavery) as corollaries of the principles of civil and religious liberty expressed in the Declaration, this Note suggests that the privileges and immunities in the Articles of Compact are direct expressions of principles of civil and religious liberty. Perhaps this difference explains why, even though Professor Eastman writes about the Privileges or Immunities Clause, he does not look to the Ordinance for the substance of privileges and immunities.
301. Act of Mar. 1, 1817, ch. 23, § 4, 3 Stat. 348, 349.
302. Act of Mar. 2, 1819, ch. 47, § 5, 3 Stat. 489, 491.
303. See ALA. CONST. of 1819, art. VI. The article contains "General Provisions," which has a section entitled "Education," with words and principles derived from the Ordinance, followed shortly by a section on "Slaves," which denies the legislature the "power to pass laws for the emancipation of slaves."
304. Id. art. VI
305. see also MISS. CONST. of 1817, art. VI (containing the Education Clause from the Ordinance along with the prohibition against emancipation).
306. Mississippi in the Supreme Court, N.Y. TIMES, Apr. 5, 1867, at 1.
307. See Eastman, supra note 117, at 130.
308. NORTHWEST ORDINANCE OF 1787 § 13, reprinted in 1 UNITED STATES CODE
309. supra note 2, at LVI. For the full text
310. see supra Section III.A.
311. NORTHWEST ORDINANCE OF 1787 § 13, reprinted in 1 UNITED STATES CODE
312. supra note 2, at LVI.
313. The term "these republics" refers to the original states in contradistinction to those governments that shall be formed in the territories.
314. Dred Scott was the first case in which the Court asserted that the Bill of Rights applied in the territories against territorial government. Before this, the Ordinance and the organic acts were the primary restraints on the territorial governments. The role of the Bill of Rights in the territories was, however, asserted by the executive branch.
315. See AMAR, supra note 20, at 168 n.*2 (discussing the opinion of Attorney General Butler in 1835)
316. see also James Madison, Veto Message (Feb. 21, 1811), in JAMES D. RICHARDSON, A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS: JAMES MADISON 52-53 (2006). Madison's veto message was for an act of Congress to establish a church in Washington, D.C., which he thought violated the First Amendment.
317. In Barron, John Marshall called the inapplicability of the Bill of Rights to the states a question of "great importance, but not much difficulty." 32 U.S. (7 Pet.) 243, 247 (1833)
318. See also Amar, supra note 54, at 1198-99 (discussing the views of the Chief Justice in Barron as well as Hamilton in The Federalist No. 83 regarding incorporation).
319. NORTHWEST ORDINANCE OF 1787 § 13, reprinted in 1 UNITED STATES CODE, supra note 2, at LVI.
320. Bank of Hamilton v. Dudley's Lessee, 27 U.S. (2 Pet.) 492, 526 (1829).
321. 46 U.S. (5 How.) 215 (1847).
322. See SATO, supra note 116, at 100
323. In his historical work prefixed to the Statutes of Ohio, Chase wrote: [The Ordinance contained] articles of compact between the original states, and the people and states of the territory, establishing certain great fundamental principles of governmental duty and private right, as the basis of all future constitutions and legislation, unalterable and indestructible except by that final and common ruin, which as it has overtaken all former systems of human polity, may yet overwhelm our American union. Never, probably, in the history of the world, did a measure of legislation so accurately fulfil [sic], and yet so mightily exceed the anticipations of the legislators. The ordinance has been well described, as having been a pillar of cloud by day, and of fire by night, in the settlement and government of the northwestern states. When the settlers went into the wilderness, they found the law already there. It was impressed upon the soil itself, while it yet bore up nothing but the forest.
324. SALMON P. CHASE, A SKETCH OF THE HISTORY OF OHIO 8-9 (Cincinnati, Corey & Fairbank 1833).
325. ALBERT BUSHNELL HART, SALMON PORTLAND CHASE 75 (Cambridge, Mass., The Riverside Press 1899).
326. Jones, 46 U.S. at 223.
327. The heart of the Taney Court's opinion in Jones v. Van Zandt was that the prohibition of slavery in the territories did not affect slavery in the other states: The ordinance prohibited the existence of slavery in the territory northwest of the river Ohio among only its own people. Similar prohibitions have from time to time been introduced into many of the old States. But this circumstance does not affect the domestic institution of slavery, as other States may choose to allow it among their people, nor impair their rights of property under it, when their slaves happen to escape to other States.
328. Id. at 230.
329. Id. at 231-32.
330. Id. at 231.
331. Bank of Hamilton v. Dudley's Lessee, 27 U.S. (2 Pet.) 492, 526 (1829).
332. Strader v. Graham, 51 U.S. (10 How.) 82 (1850).
333. 44 U.S. (3 How.) 589 (1845).
334. The Court in Permoli wrote: [A]s as regards the state of Louisiana, [the Northwest Ordinance] had no further force, after the adoption of the state constitution. So far as they conferred political rights, and secured civil and religious liberties, (which are political rights,) the laws of Congress were all superseded by the state constitution; nor is any part of them in force, unless they were adopted by the constitution of Louisiana, as laws of the state. It is not possible to maintain that the United States hold in trust, by force of the ordinance, for the people of Louisiana, all the great elemental principles, or any one of them, contained in the ordinance, and secured to the people of the Orleans territory, during its existence. It follows, no repugnance could arise between the ordinance of 1787 and an act of the legislature of Louisiana, or a city regulation founded on such act; and therefore this court has no jurisdiction on the last ground assumed, more than on the preceding ones. In our judgment, the question presented by the record is exclusively of state cognizance, and equally so in the old states and the new ones; and that the writ of error must be dismissed.
335. Id. at 610.
336. Some federal judges (though not the Supreme Court) questioned the continuing force of the Ordinance in the states formed in the Northwest Territory before Strader. More than a decade earlier in Spooner, a federal district court opinion questioned the continuing force of the Northwest Ordinance in Ohio. The court (one of whose members was Justice McLean riding circuit) wrote that the Ordinance was superseded by the state constitution of Ohio, but the court was careful to note that the Ohio Constitution protected the principles of liberty-the privileges and immunities-enumerated in the Ordinance: "[S]o far as the constitution of Ohio has embraced, and secured the perpetuity of the essential principles of free government, set forth in the ordinance, the latter instrument may be considered as superseded, within the state."
337. Spooner v. McConnell, 22 F. Cas. 939, 949 (No. 13,245) (C.C.D. Ohio 1838). The court left unresolved whether the Ordinance would still have force if the state constitution did not respect the principles of the Ordinance.
338. See id. at 950 ("Whether, in the event of a change in the constitution of Ohio, by which its provisions would be made to conflict with the ordinance, it would be possible to apply a corrective to the evil, is not a question involved in this case."). In doing so, the court allowed the possibility that the federal government would have the power to correct the evil that would result if states did not continue to respect the principles of the Ordinance.
339. Strader, 51 U.S. at 95.
340. See, e.g., Jolly v. Terre Haute Drawbridge Co., 13 F. Cas. 919, 920 (No. 7,441) (C.C.D. Ind. 1853) ("The state of Indiana is one of the states carved out of the North Western Territory, and therefore subject to the operation of that article of the compact contained in the ordinance of 1787.").
341. 32 U.S. (7 Pet.) 243 (1833).
342. Benner v. Porter, 50 U.S. (9 How.) 235 (1850).
343. Id. at 242.
344. Webster v. Reid, 52 U.S. (11 How.) 437 (1850).
345. Id. at 460 (citing U.S. CONST. amend. VII).
346. Am. Pub. Co. v. Fisher, 166 U.S. 464, 466 (1897) (stating that the "invalidity may have been adjudged by reason of the conflict with Congressional legislation"). For a discussion of the relation between Webster and Fisher
347. see Burnett, supra note 50, at 828-29.
348. PUB. LAND COMM'N, THE PUBLIC DOMAIN, H.R. EXEC. DOC. NO. 46-47, pt. 4, at 152 (3d Sess. 1881).
349. Act of Mar. 30, 1822, ch. 13, 3 Stat. 654.
350. Am. Ins. Co. v. Canter, 1 F. Cas. 658, 660 (C.C.D.S.C., date not given) (No. 302A) (quoting Act of Mar. 30, 1822, ch. 13, § 10, 3 Stat. at 658), aff'd sub nom.
351. Am. Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511 (1828). Justice Johnson also explained how the organic acts "constitute what may be properly termed the constitution of Florida." 1 F. Cas. at 661.
352. Akhil Amar points out the similarities between the privileges and immunities in the Florida organic act and the provisions in the Bill of Rights but does not mention the Ordinance's contribution to this organic act.
353. AMAR, supra note 20, at 167.
354. Indeed, the privileges and immunities as well as their phrasing are much more similar to the rights in the Ordinance than to the rights in the Bill of Rights. For example, like the Northwest Ordinance, the Florida organic act contains the right of bailability for all "cases, except for capital offences, where the proof is evident or the presumption great." NORTHWEST ORDINANCE OF 1787, art. II, reprinted in 1 UNITED STATES CODE
355. supra note 2, at LVI.
356. This wording is found nowhere in the Constitution. In addition, the rights appear in the Florida organic act in exactly the same order as in the first two Articles of Compact of the Ordinance (except that the protection for liberty and property-the due process guarantee-appears in the first line of the organic act), an order very different from that in the Bill of Rights. Also, the only rights that are not in the Ordinance but are in the organic act are the prohibition against ex post facto laws (also seen in the organic act for Missouri, cited supra note 99) and the immunity from excessive bail (though as discussed previously, the right of bailability for all but capital crimes where the presumption is great is preserved in this organic act-evidence that these two rights are distinct). The right to trial by jury is found in a separate section. Act of Mar. 30, 1822, ch. 13, § 10, 3 Stat. at 658.
357. The only rights in the first two Articles of Compact of the Ordinance but missing from Florida's organic law are the privilege of "proportionate representation" and judicial proceedings according to the course of the common law. NORTHWEST ORDINANCE OF 1787, art II, reprinted in 1 UNITED STATES CODE
358. supra note 2, at LVI.
359. The omission of the common law provision likely stems from Florida being formerly under the control of Spain, which has no common law. In contrast to the great overlap between the Ordinance and Florida's organic act, many rights from the Bill of Rights are absent from Florida's organic act. For the purposes of this Note, the principles of the Northwest Ordinance are considered as built into the organic law of the territory of Florida. Despite the revealing parallels between the privileges and immunities of Florida's organic act and the Articles of Compact in the Ordinance, the connection is not as strong as for the territories explored in Part II of this Note.
360. See supra Part II for a detailed history of the territorial organic acts.
361. See supra note 157.
362. See supra note 99 for Missouri's organic act
363. and supra note 157 for a discussion of Florida's organic act.
364. Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393 (1857)
365. superseded by constitutional amendment, U.S. CONST. amend. XIV.
366. Id. at 403.
367. Chief Justice Taney considered whether the "class of persons described in the plea," namely free blacks descended from slaves, are "people of the United States" or "citizens," and therefore "constituent members of this sovereignty."
368. Id. at 404.
369. He decided that they were not, and that they "had no rights or privileges but such as those who held the power and the Government might choose to grant them."
370. Id. at 405.
371. Id. at 449.
372. Id. at 451.
373. NORTHWEST ORDINANCE OF 1787 § 14, art. II, reprinted in 1 UNITED STATES CODE
374. supra note 2, at LVI.
375. See Williams, supra note 6, at 428-34 (discussing the public understanding of the phrases "due process of law" and "the law of the land" in late eighteenth-century America).
376. Dred Scott, 60 U.S. at 432-54.
377. Chief Justice Taney wrote: And, among the earliest laws passed under the new Government, is one reviving the ordinance of 1787, which had become inoperative and a nullity upon the adoption of the Constitution. This law introduces no new form or principles for its government, but recites, in the preamble, that it is passed in order that this ordinance may continue to have full effect, and proceeds to make only those rules and regulations which were needful to adapt it to the new Government, into whose hands the power had fallen.
378. Id. at 438.
379. Chief Justice Taney believed that the Ordinance needed to be revived, but an alternative interpretation is that the Ordinance continued to be active and that the act to which the Chief Justice refers merely allowed the new Constitution and the Ordinance to work together. For a discussion of this interpretation
380. see supra Part I.
381. "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." U.S. CONST. art. IV, § 3, cl. 2.
382. Thirty-Ninth Congress, First Session, N.Y TIMES, May 24, 1866, at 1
383. XXXIXth Congress. First Session, N.Y. TRIBUNE, May 24, 1866, at 1.
384. CONG. GLOBE, 39th CONG., 1st SESS. 2765 (1866).
385. Although a citation to Corfield appeared in the papers mentioned in supra note 171, Justice Washington's dicta was not printed.
386. Some jurists and historians, in order to exclude the Federal Bill of Rights from the purview of the Fourteenth Amendment, have argued that the Privileges or Immunities Clause only protects those rights that are protected under the Comity Clause of Article Four.
387. See, e.g., Philip Hamburger, Privileges or Immunities, 105 NW. U. L. REV. (forthcoming 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1557870.
388. Even under this reading of the Privileges or Immunities Clause, fundamental rights enumerated in the Northwest Ordinance would still be protected by the Fourteenth Amendment. The privileges and immunities of the Ordinance are certainly a subset of "all Privileges and Immunities of Citizens in the several States." U.S. CONST. art. IV, § 2, cl. 1. Indeed, they are the subset of the privileges and immunities of citizens that are common among the states. In other words, they are the privileges and immunities in the intersection of the privileges and immunities of the several states. Before the Fourteenth Amendment, they were the only privileges and immunities that were officially privileges and immunities of both citizens of the United States and citizens of all of the several states besides a few provided by clauses in the original Constitution (such as the immunity from ex post facto laws). U.S. CONST. art. I, § 9 ("No Bill of Attainder or ex post facto Law shall be passed. No Title of Nobility shall be granted by the United States.")
389. id. § 10
390. ("No State shall. pass any Bill of Attainder, ex post facto law. or grant any Title of Nobility."). As restrictions on both federal and state governments, these few immunities-immunities against ex post facto laws, bills of attainder, and titles of nobility-are also properly regarded as privileges and immunities of citizens of the United States. Another is the privilege of having a republican state government. The guarantee of a republican form of government was provided first in the Northwest Ordinance and later in the Constitution. Even though the federal government lacked a mechanism for protecting them against state abridgment before the Fourteenth Amendment, the privileges and immunities of the Northwest Ordinance were nonetheless protected everywhere in the United States against infringement throughout the nineteenth century: by the organic acts in the territories and by the state constitutions in the states.
391. Corfield v. Coryell, 6 F. Cas. 546, 551 (No. 3,230) (C.C.E.D. Pa. 1823)
392. see also CONG. GLOBE, 39TH CONG., 1st SESS. 2765 (1866) (reporting Senator Howard's recitation of the Corfield dicta).
393. CONG. GLOBE, 39th CONG., 1st SESS. 2765 (1866).
394. Corfield, 6 F. Cas. at 551-52.
395. Id. at 552.
396. NORTHWEST ORDINANCE OF 1787 § 14, art. IV, reprinted in 1 UNITED STATES CODE
397. Supra note 2, at LVII
398. ("The said territory, and the States which may be formed therein, shall forever remain a part of this confederacy of the United States of America, subject to the Articles of Confederation, and to such alterations therein as shall be constitutionally made; and to all the acts and ordinances of the United States in Congress assembled, conformable thereto.").
399. ARTICLES OF CONFEDERATION of 1781, art. IV.
400. According to Robert Natelson, the Corfield opinion only became famous after the Civil War and the ratification of the Fourteenth Amendment.
401. See Robert G. Natelson, The Original Meaning of the Privileges and Immunities Clause, 43 GA. L. REV. 1117, 1125 n.30 (2009).
402. CONG. GLOBE, 39TH CONG., 1ST SESS. 2765 (1866).
403. CONG. GLOBE, 35TH CONG., 2ND SESS. 984 (1859) (arguing that Oregon's constitution violates many of the privileges and immunities provided in the Ordinance's Articles of Compact)
404. see Graham, supra note 105, at 393
405. (focusing on Bingham's use in the congressional debates of the Due Process Clauses of the Ordinance and the Fifth Amendment of the Constitution).
406. Graham, supra note 105, at 397 & n.89.
407. Id. at 397 n.89.
408. See AMAR, supra note 20, at 158 (discussing the importance of the Ordinance to Representative Bingham).
409. 83 U.S. (16 Wall.) 36 (1873).
410. Id. at 59-60.
411. Id. at 60.
412. Id. at 61.
413. Id. at 72-74.
414. Id. at 74.
415. Id. at 75-76.
416. Id. at 77-78 (expressing fear of the unlimited power of Congress to protect the "privileges or immunities of citizens" as well as the power of the courts to nullify state laws).
417. Id. at 77.
418. See supra Part II.
419. See supra Part III.
420. Freedom of speech was also protected by most state constitutions in 1868, during the Fourteenth Amendment's ratification. It was thus a nearly universal component of state organic law despite not appearing in the Ordinance.
421. See Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 TEX. L. REV. 7, 42 (2008) ("[A] full thirty-two out of thirty-seven-or more than three-quarters-of the states in 1868 explicitly and textually protected the right to free speech.").
422. See McDonald v. City of Chi., 130 S. Ct. 3020, 3034 & n.12 (2010).
423. 372 U.S. 368, 381 (1963).
424. NORTHWEST ORDINANCE OF 1787 § 14, art. II, reprinted in 1 UNITED STATES CODE, supra note 2, at LVI.
425. See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964)
426. Baker v. Carr, 369 U.S. 186 (1962).
427. See supra note 26.
428. NORTHWEST ORDINANCE OF 1787 § 14, art. II, reprinted in 1 UNITED STATES CODE, supra note 2, at LVI.
429. See generally JOHN RAWLS, A THEORY OF JUSTICE 118-23 (rev. ed. 1999) (discussing the conditions of a veil of ignorance).
430. See supra Introduction for further discussion of the tests for substantive due process protection and the reasons that the fundamental rights in the Ordinance easily pass these tests.
431. U.S. CONST. art. IV, § 4, cl. 1.
432. The Ordinance at least did not apply directly to states after 1850.
433. See supra Part IV.
434. Its principles were, however, incorporated into state constitutions.
435. See supra Part III.