|The Constitutional Principle: Separation of Church and State|
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The Northwest Ordinance is perhaps the most frequently cited accommodationist "proof" that the Constitution did not separate church and state. Given its importance to the accommodationist position, our discussion of the Ordinance will be fairly detailed.
The accomodationist argument
The Northwest Ordinance was first enacted by Congress in 1787, when the nation was still operating under the Articles of Confederation. The purpose of the Ordinance was to create a temporary government for the Northwest Territory (a huge swath of land that extended from the great lakes to the Ohio river valley), and to establish a procedure by which territories could apply for admission into the Union. The Ordinance was reenacted with very minor changes in 1789, after the passage of the Constitution.
Accommodationists make at least two claims about the Northwest Ordinance: (1) the Ordinance in some way violates the separationist reading of the First Amendment, and (2) the reenactment of the Ordinance in 1789 can be read as a sort of commentary on the First Amendment.
As to (1), accommodationists argue that the first sentence of Article III of the Northwest Ordinance violates the separationist understanding of the First Amendment. The sentence reads as follows:
Accommodationists note that the wording of Article III seems to link the encouragement of education to the promotion of religion. One accommodationist, David Barton, for example, goes so far as to suggest that Article III "required religion to be included in schools" (The Myth of Separation, p. 39). Less extreme accommodationists would claim merely that the wording of Article III indicates that the authors of the Ordinance were comfortable with "promoting religion, morality and knowledge in public education" (John Baker, "The Establishment Clause as Intended...," in Eugene W. Hickok, Jr., The Bill of Rights: Original Meaning and Current Understanding, p. 49). Additionally, the language of the Article seems to link religion to "good government," which can be read as supportive of the accommodationist position.
As to (2), accommodationists note that the Northwest Ordinance was reenacted by the same Congress that finalized the text of the First Amendment. Accordingly, accommodationists argue that the Ordinance indicates that the First Amendment was not intended by Congress to rule out a close connection between government and religion. David Barton, the accommodationist quoted above, for example, notes that,
and then later argues:
The Separationist Response
While the accommodationist argument looks plausible on its face, a little digging suggests that it self-destructs on the historical and legal data. Not only does the Northwest Ordinance not violate the separationist understanding of the First Amendment (or otherwise support accommodationist claims), the first sentence of Article III was placed in the Ordinance under the most suspicious of circumstances.
First examine the history of the first sentence of Article III of the Northwest Ordinance.
Then consider the following arguments:
The Northwest Ordinance:
Finally, we note that: