On July 13, 1787, the Confederation Congress passed the Northwest Ordinance, one of the most important and influential acts of the early republic.
Officially titled "An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio," it applied to land ceded by the British in the Treaty of Paris that ended the American Revolution.
The ordinance eventually led to the formation of Ohio, Indiana, Michigan, Illinois, and Wisconsin.
PROHIBITING SLAVERY. Significantly, the Northwest Ordinance banned slavery in the new territories and the language was carried over to the 13th Amendment decades later.
The ordinance evolved from a proposal primarily penned by Thomas Jefferson in 1784 that would have originally applied to southern territories as well as northern ones.
The anti-slavery clause was narrowly defeated in the Ordinance of 1784.
The slavery ban ultimately found its way into the Northwest Ordinance of 1787.
As Constitutional Scholar Kurt Lash pointed out, "The committee based its draft on Jefferson's language in the Northwest Ordinance."
AN EARLY BILL OF RIGHTS. The original draft of the Constitution for the United States didn't have a Bill of Rights, but the Northwest Ordinance included provisions protecting several natural rights that were a precursor.
The National Archives even refers to those sections in the ordinance as a "Bill of rights."
The Philadelphia Convention was meeting when the ordinance was passed, and many of the provisions ultimately found their way into the Bill of Rights four years later.
The Northwest Ordinance included protections of property rights, prohibiting any law that would "Interfere with or affect private contracts or engagements."
The Northwest ordinance also included provisions to protect individuals from being "Molested on account of his mode of worship or religious sentiments."
The ordinance described religion, morality, and knowledge as "Being necessary to good government and the happiness of mankind." That being the case, "Schools and the means of education shall forever be encouraged."
SUPREME COURT OPINIONS. In recent years, several Supreme Court justices have referred to the Northwest Ordinance as an originalist source to support their opinions.
In concurring with the majority on Fulton v. City of Philadelphia, Justice Samuel Alito opined that the ordinance highlighted an early understanding of a broad right to the free exercise of religion with "a 'peace and safety' carveout."
Dissenting in another religious freedom case, Justice Sandra Day O'Connor argued that the Northwest Ordinance supported the position that "Around the time of the drafting of the Bill of Rights, it was generally accepted that the right to 'free exercise' required, where possible, accommodation of religious practice."
In Boumediene v. Bush, Justice Anthony Kennedy argued that the Northwest Ordinance answered the question of the limits of the Constitution's habeas corpus suspension clause due to its extension of the writ to the territories.
In his concurrence in Timbs v. Indiana, Justice Clarence Thomas invoked the Northwest Ordinance to argue that a prohibition on excessive fines was understood to be "a well-established and fundamental right of citizenship."
CONCLUSION. On the bicentennial of the Northwest Ordinance, Ronald Reagan declared it "One of the foundation documents of our Nation because it became a model for the Constitution and the Bill of Rights and because of its significance for the expansion of the Union."
In particular, the protection of rights expressly listed in the ordinance clearly foreshadowed and influenced the Bill of Rights.
The Northwest Ordinance serves as a powerful reminder.
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