Northwest Ordinance

The Northwest Ordinance was enacted in 1787, and re-enacted in 1789, by the First Congress of the United States. The Ordinance was intended to regulate the territory now constituting Ohio, Michigan, and other portions of the upper Midwest. Text from the document is sometimes quoted in debates concerning the law and philosophy of education, or the proper constitutional relationship between Church and State. Some scholars and practitioners believe the Ordinance is a useful indication of the Framer’s original intent, and invoke the document as a tool for sound constitutional interpretation.

The Ordinance expressed some very progressive sentiments, especially considering the state of politics and law at the time of enactment. It advocated “extending the fundamental principles of civil and religious liberty,” and provided in Article I that “[n]o person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.” Many years later, this vision was set aside as states fought to suppress Catholics, Mormons and Mennonites who lived in the upper Midwest.

Article II was also sweeping in its protection of civil liberties. It provided for due process, trial by jury, bail, evidentiary presumption, property rights, contract rights, protection against takings, and protection against cruel and unusual punishments. Article II also protected “liberty” and the writ of habeas corpus, which was the legal tool afforded under the common law for vindicating parental rights. The Ordinance endorsed the common law, which inherently afforded great deference to parental decisions regarding a child’s education and upbringing.

At a time when many of the states permitted slavery, Article VI of the Ordinance included the language which would eventually be used in the Thirteenth Amendment: “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[.]”

Article III set forth a noble, Franklinesque standard for race relations:

The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never 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.

In practice, of course, an unfortunate amalgamation of the Jacksonian Paradigm and the Know-Nothing framework in Massachusetts would totally supplant the approach set forth in Article III. A federal system of boarding schools was later developed to severely derogate the liberty of thousands of peaceful Native American families across the nation.

Perhaps the most famous language in the Ordinance is found at the beginning of Article III: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Often this sentence is quoted out-of-context to suggest that the Framers endorsed the Massachusetts system of compulsory government schooling implemented by the Know-Nothings in 1852.

This interpretation is misguided. In substance, Article III simply notes that that “schools” and other “means of education” are to be “encouraged.” Tellingly, the Northwest Ordinance does not endorse tax-revenue support of schools, government sponsorship of schools, government regulation of schools, government imposition of a particular world view in schools, or compulsory attendance for minors in schools.

The Article characterizes the government's role as one of providing general “encouragement,” a very different proposition from government mandates, prohibitions, regulations, or oversight. No specific interventions are authorized. Indeed, the plain language of Article III also acknowledges that “schools” are distinct from other “means of education,” which included the home-education method employed by so many of the settlers.

Nothing in Article III overrides the other basic principles which are stated emphatically and specifically in the Ordinance, including due process, common-law habeas-corpus protection for parental rights, “liberty,” “religious liberty,” freedom from “involuntary servitude,” and protection of the “liberty” of peaceful American Indians. All of these legal protections run counter to the system of education promulgated by Andrew Jackson, Horace Mann, and the Know-Nothings of Massachusetts.

Common law, historical custom, and common sense all weigh against the notion that the Framers meant to collectively endorse the system of compulsory government education which was utilized in the United States after 1852. A reading of the complete text of the Northwest Ordinance reaffirms the Framers’ progressive vision of parental liberty.

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