Happy birthday, ‘empire of liberty’

On
July 13, 1787, Congress, operating under the Articles of Confederation, enacted
the Northwest Ordinance. The law provided a roadmap for the governance of the
territories north of the Ohio River acquired by the United States after its
victory in the Revolutionary War. The core elements of the Ordinance were a
three-stage path for admitting a new state into the Union — with increasing
self-rule as parts of the territory grew in population — and an accompanying
bill of rights for the territory’s citizens. Five states eventually entered the
Union under the law’s terms: Ohio, Indiana, Illinois, Michigan, and Wisconsin.

Today,
we treat both the Northwest Ordinance’s enactment and the subsequent admission
of the remaining 32 states in a rather ho-hum fashion. In hindsight, it seems
virtually inevitable that the original country would expand across North
America to the Pacific Ocean, especially given how many of America’s founders —
including Franklin, Jefferson, Hamilton, and Washington — spoke about the
future. But, in making this assumption, we tend to overlook the unique — even
revolutionary — aspects of the Northwest Ordinance.

For
starters, the territories were lands the British had lost in a war, occupied
primarily by British citizens, stateless frontiersmen, and Native American
nations that had sided with London in the war. Once this land had passed into
the federal hands, it was unclear how it was to be managed and ruled. In
theory, there were three possibilities: The territory could be ruled as a
colony or colonies, governed by chartered-companies like the East India Company
or the Hudson Bay Company, or gradually admitted into the Union as states.

Even
in the case of the last alternative, would the states have equal status with
the original 13? Again, we assume that would be so because it became so. Yet,
as Gouverneur Morris argued in the Constitutional Convention, if there were to
be new states at all, “the Atlantic states” should have “a prevalence in the
National Councils” since the new states “will have an interest in many respects
different” and the most critical “burdens & operations” of governing will
“fall chiefly on the maritime States.” Indeed, many, if not eventually most, of
the expected new settlers in the territories would not have even been in the
United States when it was fighting for independence.

Via Twenty20

Nowhere
in the Declaration of Independence is there an argument that the inalienable
rights listed there depend on a republican form of government. If the king had
behaved himself, there would have been no legitimate reason to break free.
Although the idea of consent expressed in the Declaration pushes towards a more
republican form of rule, and the specific charges laid against King George
suggest a well-functioning state will incorporate separation-of-power
principles, these inchoate points still needed to be applied to the new
circumstances of the Northwest Territory. The fact that the Congress chose
equal status for new states as opposed to some lower formal standing or even
dependency is a marked departure from how, historically, most nations had
expanded.

This
high-mindedness on the part of the original 13 was no doubt supported — perhaps
even generated by — the character of the individuals and families moving west.
Many would be new immigrants to the continent, with assimilation to the United
States less a priority than the land now available. There was no formal border
that was going to slow that tide. To whom did these folks owe allegiance?
Moreover, driven by the desire for land, profits from the land depended on
secure access to rivers and ports to sell their products — a security the young
United States could only partially provide at the time. If the allegiance of
those populating the territory were to be gained, nothing less than equality of
citizenship and rights would do.

However,
the personal ambitions of those moving into the Northwest Territory were
limited in one historic way: Slavery was banned from the land. At a time when
America’s “original sin” is at the front of our civic discourse, it’s useful to
remember that at the very moment that the members of the Constitutional
Convention were meeting and compromising with the Southern states over the
issue of slavery, the Congress was putting a marker down to limit its growth.

Both America’s founders and its first citizens expected the country to expand in population and territory. How it would do so was still to be decided — and would remain a question that bedeviled the Union until the Civil War. That said, the Northwest Ordinance is a remarkably liberal first step in determining how the new territory was to be governed and its people treated. It was, in Jefferson’s turn of phrase, to be an “empire of liberty.” Empire and liberty are not easy terms to reconcile, either on the level of statecraft or in the breasts of the statesmen. So while few would agree with Daniel Webster’s claim in 1830 that no “one single law of any law-giver, ancient or modern, has produced effects of more distinct, marked, and lasting character,” the Northwest Ordinance nevertheless deserves recognition as a model attempt to square the founders’ ambitions with republican principles.

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