ADMINISTRATIVE CONSTITUTIONALISM AND THE NORTHWEST ORDINANCE.

• Author: Ablavsky, Gregory

"[A]re not the people in this territory in a much worse situation, than the United States were, before the late revolution?" (1)

INTRODUCTION 1631 I. CIVIL AND MILITARY AUTHORITY IN THE NORTHWEST TERRITORY 1638 A. Military Jurisdiction over Civilians 1638 B. Civil Jurisdiction over the Military 1641 C. The Military, Jurisdiction, and Administrative 1649 Constitutionalism II. "GONE TO THE UNITED STATES": FEDERAL JURISDICTION, 1652 IMPERIAL LAW, AND THE NORTHWEST TERRITORY A. Unequal Footing 1653 B. Constitutionalism and the American Empire 1660 CONCLUSION 1665 INTRODUCTION

Since 1934, four "organic laws" of the United States have prefaced the volumes of the U.S. Code: the Declaration of Independence, the Articles of Confederation, the U.S. Constitution, and the Northwest Ordinance. (2) Formally an ordinary statute that established the first federal territory, the Ordinance's exalted company suggests its exceptional status within the nation's constitutional history. (3) The Ordinance's protections of freedom of worship, private property, and jury trials, and its ban on "cruel or unusual punishments," all prefigured, sometimes verbatim, the provisions of the Bill of Rights. (4) Its prohibition on slavery rendered the Ohio River the ostensible divide between "free" and "slave" territory, (5) while the document's promise to admit the territories as future states "on an equal footing" with other states became a foundational principle of federalism. (6) And the law's requirement that the "utmost good faith shall always be observed towards the Indians," even as it anticipated that "[I]ndian titles shall have been extinguished," epitomized the contradictory and often hypocritical nature of U.S. settler colonialism. (7)

But, while historians and legal scholars have thoroughly explored the Ordinance's quasi-constitutional aspects, they have largely ignored most of what the Ordinance actually did: create a structure of governance. (8) In the Ordinance, Congress delegated executive, legislative, and judicial power over the Northwest Territory, subject to limits imposed by Congress, to five presidentially selected and congressionally confirmed federal officials: a governor serving a three-year term; a secretary (effectively lieutenant governor) serving a four-year term; and three judges who served during good behavior. (9) The governor and judges collectively served as the territorial legislature, at least until there were "five thousand free male inhabitants," when the Ordinance authorized an elected "general assembly." (10) Until that point, too, the territorial governor appointed all local "magistrates and other civil officers." (11)

Viewed anachronistically, territorial government under the Ordinance strongly resembled the modern administrative state: it explicitly empowered federal officials within the executive branch (12) to exercise "binding legislative and judicial power" over U.S. citizens. (13) Yet surprisingly, the early history of the territories has played almost no role in the intensifying scholarly debates over administrative law's constitutional legitimacy. (14) Even scholars who recognize the broad scope of early federal administrative practice posit the existence of a constitutional "hole where administration might have been," (15) notwithstanding the Constitution's grant of power to Congress to craft "all needful Rules and Regulations" for federal territories (16)--a provision adopted, James Madison suggested, specifically to validate the Northwest Ordinance. (17)

This omission of the territories from discussions of administrative law's history reflects two related assumptions. The first is that early federal territorial governance, although authorized by Congress, actually rested on "local legislative power that comes from below." (18) Superficially, the Ordinance's language supports this claim: it closely resembled state constitutions grounded in popular sovereignty and even purported to be an "unalterable" "compact" between existing and future states. (19) Yet in reality, the Ordinance imposed and staffed a government almost entirely from above. The people governed by the Ordinance had no say in its creation or adoption: Congress enacted it without any process for ratification or assent, and territorial citizens lacked voting representation in Congress. Governance within the Territory was also arguably undemocratic. Until the territory's population reached 5,000 white men, at which point the Ordinance authorized an elected legislature (its sole concession to self-governance), there were no territorial officials selected by, or representing, the governed. (20) As the U.S. Attorney General wrote in 1799, "[t]he governor and all persons in authority [in the Northwest Territory] derive their authority from the present constitution of the United States or from Congress... ." (21)

The second and related assumption is that the territories were exceptional, "anomalous zones" whose governance through federal fiat reflected expediency rather than constitutional principle. (22) Some commentators have even suggested that large swaths of the Northwest Ordinance are unconstitutional, an odd claim for a text long thought to be foundational to U.S. constitutional thought. (23) Not only does such an approach improbably disregard what the drafters of the Constitution repeatedly said the text meant, it also ignores over two centuries of governmental practice, which even those who emphasize textualism concede has an important role in constructing constitutional meaning. (24) As for the suggestion that the territories were a minor exception to "normal" structures of constitutional governance, this assertion, dubiously descriptive of the present, is particularly inapposite for the eighteenth and nineteenth centuries. As a number of commentators have emphasized, the territories represented one of the most significant sites of federal governance in the early United States; (25) they also empowered Congress, through its control over admission to statehood, to dictate the nation's political future. (26) Consequently, as even a casual glance at U.S. constitutional history reveals, the territories were fundamental to nearly every major constitutional controversy of the long nineteenth century: most notably slavery, (27) but also religious freedom, (28) property ownership, (29) racial discrimination, (30) citizenship, (31) and the scope and nature of constitutional rights. (32)

The language of exception does important work in the present, however, because it preserves a particular vision of the "Founding." Administrative law, we are told, was a relic of British legal thought consciously repudiated in the American Revolution, which insisted that law be rooted in popular sovereignty. (33) This forward-looking perspective of a world made anew echoes revolutionary-era rhetoric, yet it ignores a more complicated relationship between federal governance and its imperial antecedents. As recent legal histories have demonstrated, British precedents and thought remained deeply entangled within the new nation's constitutional project. (34)

This backward-looking view was particularly significant for territorial governance. Often discussed as the "colonies" of the new nation, (35) the territories directly raised the question of how the center could legitimately govern the periphery--the questions of imperial constitutional structure that had prompted the Revolution. Early Americans, who routinely spoke of the United States as an empire, (36) recognized this parallel. As James Monroe stated of an early version of what became the Northwest Ordinance, "It is in effect to be a colonial govt similar to that w[hic]h prevail'd in these States previous to the revolution... ." (37)

The early territories reveal, then, the limits of popular sovereignty in the United States--not only because, as present-day scholars have stressed, the nation explicitly excluded women, African-Americans, and Native peoples from governance, but also because territorial governance failed to include the people, however narrowly defined, in making the laws that governed them. Unlike most present-day commentators, territorial citizens readily grasped this imperial aspect of the Northwest Ordinance, which proved controversial. Territorial politics, wracked by intense constitutional debates, sometimes made it seem as though the American Revolution had never really ended, as territorial citizens litigated issues that the war had supposedly settled. Here, I focus on two particularly contentious questions of the 1790s with close parallels in the imperial crisis: the relationship between military and civil authority, and the uncertain jurisdictional and constitutional status of the territories within the United States.

Yet, for all that territorial constitutional debates closely resembled revolutionary controversies, they unfolded quite differently. The key difference was not the existence of a written U.S. constitution: although the Northwest Territory actually had two authoritative constitutional documents, given the Ordinance's claim to fundamental law, constitutional argument there maintained the eclecticism of sources that had long characterized early American constitutionalism. (38) What marked the Northwest Territory, rather, was the limited institutional scope for these constitutional arguments. Until 1805, for instance, there was no appeal from territorial courts to the U.S. Supreme Court. (39) Congress and the executive both enjoyed considerable power over the territories, but both, preoccupied by geopolitics, showed little interest in intervening in quotidian local disputes. The outcome was a sort of administrative constitutionalism by default, as the governor, secretary, and judges/legislators often had to hash out these questions themselves. Their arguments produced much disagreement but little resolution: Secretary of State Edmund Randolph dismissively...