An organic law theory of the Fourteenth Amendment: the Northwest Ordinance as the source of rights, privileges, and immunities.

• Author: Hegreness, Matthew J.

NOTE CONTENTS INTRODUCTION I. THE NORTHWEST ORDINANCE AND FEDERAL ORGANIC LAW A. Organic Law Versus Constitutional Law B. The Northwest Ordinance as Federal Organic Law C. Use of "Privileges" and "Immunities" as Terms To Express the Principles of Organic Law II. THE GENESIS OF CIVIL RIGHTS: THE NORTHWEST ORDINANCE AND THE ORGANIC ACTS OF THE TERRITORIES A. The Privileges and Immunities of the Northwest Ordinance B. Rights, Privileges, and Immunities in the Territorial Offspring of the Northwest Territory C. The Manifest Destiny of the Northwest Ordinance: The Spread of Civil Rights South and West 1. The Northwest Ordinance Extended to the Southwest Territory 2. The Principles of the Ordinance Extended to the Mississippi Territory 3. The Northwest Ordinance in the Territory of Louisiana 4. The Final Stage of the Ordinance's Spread: The Principles of the Northwest Ordinance Extended to the Pacific Northwest III. THE NORTHWEST ORDINANCE IN THE STATES A. The Continuing Importance of the Northwest Ordinance as Territories Become States B. The Northwest Ordinance as an Articulation of the Privileges and Immunities Common to the Original Thirteen States IV. THE NORTHWEST ORDINANCE IN THE ANTEBELLUM COURTS A. Judicial Erosion of the Authority of the Northwest Ordinance as Active Organic Law in the States B. The Supremacy of the Ordinance over the Bill of Rights in the Territories Before Dred Scott C. Dred Scott's Assault on the Supremacy of Territorial Organic Law V. THE ORDINANCE DURING RATIFICATION AND RECONSTRUCTION: THE ORGANIC LAW OF THE FRAMERS OF THE FOURTEENTH AMENDMENT AND THE JUSTICES IN THE SLAUGHTERHOUSE CASES A. The Importance of the Northwest Ordinance to the Framers of the Fourteenth Amendment B. The Privileges and Immunities of the Northwest Ordinance and the Slaughterhouse Cases CONCLUSION We are accustomed ... to praise the lawgivers of antiquity ... but I doubt whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked, and lasting character than the Ordinance of 1787.

--Daniel Webster (1830) (1)

INTRODUCTION

Largely forgotten by a nation whose century of territorial expansion is now a faded memory, the Northwest Ordinance is preserved in every version of the United States Code as one of the four "Organic Laws of the United States of America," (2) a vestige of the Ordinance's glorious past. The Northwest Ordinance of 1787 (3) organized the Northwest Territory and provided a process by which new states would enter the Union on equal footing with the original thirteen. (4) As this Note will demonstrate, the Northwest Ordinance also defined the fundamental rights, privileges, and immunities of citizens of the United States. At the heart of the Ordinance are six Articles of Compact between the original thirteen states and those to be formed from the territories. These Articles of Compact articulated the judicial, political, economic, and religious freedoms that would forever be protected in the territories and in new states. These rights were so fundamental that Chief Justice Marshall suggested that state legislation that violated principles of the Northwest Ordinance could be struck down as "unconstitutional." (5) In addition to creating and defining the rights of citizens, the Northwest Ordinance was the vehicle through which these rights spread--from a few states abutting the Atlantic to the many states of a manifestly continental republic. Throughout the first half of the nineteenth century, congressional acts consistently employed the terms "privileges" and "immunities" to extend the freedoms in the Ordinance's Articles of Compact throughout the territory of the United States--west to the Pacific and south to the Gulf of Mexico. The United States at the time of the Civil War and the ratification of the Fourteenth Amendment was a nation whose contours as well as whose liberties were shaped primarily by the Northwest Ordinance.

The Northwest Ordinance's place alongside the other three official sources of the organic laws of the United States--the Constitution, the Declaration of Independence, and the Articles of Confederation--is well deserved. The Ordinance is a resounding declaration of liberty that served as a model for the Bill of Rights, state constitutions, and the Thirteenth Amendment. (6) The Northwest Ordinance also, as this Note argues, gives substance to the words of the Fourteenth Amendment. Deemed "the six bright jewels in the crown that the Northwest Territory was ever to wear," (7) the Ordinance's Articles of Compact are a declaration of the fundamental rights of citizens in the original thirteen states as well as a promise that the citizens of the territories will always be entitled to these rights. These fundamental rights include trial by jury, bailability, freedom of religion, writ of habeas corpus, due process for civil and criminal cases, free use of waterways, immunity from uncompensated public takings, freedom from impairment of contract (the basis for the Constitution's Contract Clause (8)), and proportionate representation. Unlike the Bill of Rights, (9) the Articles of Compact in the Northwest Ordinance contain a comprehensive set of personal rights. This set of rights was codified to protect citizens against both territorial and state governments. Through the Fourteenth Amendment, these rights in the Northwest Ordinance can be incorporated simply and completely against the states without any of the problems that plague efforts to protect rights derived from others sources. For example, problems of selective incorporation have plagued efforts to incorporate the Federal Bill of Rights, and the absence of textual foundations continues to frustrate many efforts to protect substantive liberties derived from longstanding tradition under the Due Process Clause of the Fourteenth Amendment.

The Ordinance's expressed purpose was to spread republican principles throughout the territory of the United States (10) and to "fix and establish those principles as the basis of all laws, constitutions, and governments" of future states. (11) Considering this grand purpose, that six of the thirty states that ratified the Fourteenth Amendment (12) were formed from the Northwest Territory, (13) and that the two primary drafters (14) of Section One of the Fourteenth Amendment (as well as all elected presidents but one (15) from Lincoln until the twentieth century) were from the Northwest Territory, it is surprising that the Northwest Ordinance is traditionally overlooked as an important source for understanding the fundamental rights of citizens. This neglect becomes most striking, however, when we realize that the privileges and immunities of the Northwest Ordinance spread, by congressional action, far beyond the boundaries of the Northwest Territory.

Of the thirty states that ratified the Fourteenth Amendment, twenty-eight either were part of the original Congress that passed the Northwest Ordinance or were directly governed by its principles while they were territories. The principles of the Northwest Ordinance, by various acts of Congress, formed the territorial organic law of sixteen of the thirty states that ratified the Fourteenth Amendment before the end of 1868: Tennessee, Oregon, Ohio, Kansas, Illinois, Michigan, Minnesota, Indiana, Missouri, Wisconsin, Nebraska, Iowa, Arkansas, Florida, Louisiana, and Alabama. (16) In addition, ten of the original thirteen states, whose continental Congress of Confederation unanimously (17) passed the Ordinance in 1787 (declaring that the "principles of civil and religious liberty" in the Ordinance formed the basis for the original states (18)), also ratified the Fourteenth Amendment. The remaining four states that ratified the Fourteenth Amendment were Vermont (which was an independent republic before joining the Union), Maine (which was part of Massachusetts before becoming a state), West Virginia (part of Virginia until the Civil War), and Nevada. In addition, the principles of the Ordinance were incorporated into the constitutions of states that were subsequently admitted to the Union--often mandated by Congress as a condition for admission. (19) Including Maine and West Virginia as part of the original thirteen states, at most two states that ratified the Fourteenth Amendment can claim organic-law independence from the Northwest Ordinance. The Ordinance indeed accomplished its goal of extending its republican principles--its privileges and immunities--throughout the territory of the United States.

By studying the spread of the principles of the Northwest Ordinance, this Note attempts to elucidate the original understanding of the second sentence of Section One of the Fourteenth Amendment, which states, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law." (20) The concept of the "privileges and immunities" of citizens--far from being an obscure phrase that would have confused ratifiers in the 18608--was well known to inhabitants throughout the United States. The term was used consistently throughout the nineteenth century to refer to the privileges and immunities of the Northwest Ordinance, including in various territorial acts passed by Congress invoking the Northwest Ordinance in lands far from the Northwest Territory.

While this Note focuses on the antebellum use of the terms "privileges" and "immunities" since these were the words used by the Fourteenth Amendment's Framers to protect substantive rights, (21) this Note's thesis--that the Fourteenth Amendment should protect the fundamental rights expressed in the Northwest Ordinance--applies equally strongly (if not more strongly) when the Court chooses to defend fundamental rights against state abridgment through the Due Process Clause. Indeed, the Glucksberg test for...