|The Constitutional Principle: Separation of Church and State|
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We have already noted that the first sentence of the Northwest Ordinance neither required the teaching of religion in the public schools, nor provided religious aid to the schools. So what was the first sentence of Article III all about? Why did the framers put the sentence in if it didn't do anything?
The answer, in our mind, is fairly simple: the first sentence of Article III was a preamble to the rest of the Article and, rather than having some enforceable legal content, it's purpose was to simply express an attitude of concern on the part of the federal government to provide for public education, and to encourage the civilization of the American Indians. Indeed, the whole of Article III is framed in such general language that many historians believe the Article had little substantive meaning. Let's take each of these points in order:
The context of Article III:
Consider, first, the context of the first sentence of Article III. While accommodationists love to quote the first sentence of Article III, they rarely look at the rest of the Article. In fact, the rest of Article III has nothing to do with education or religion, but concerns the relationship between the Northwest Territory and the Indian Nations:
The context of the sentence, in other words, suggests that the encouragement of education clause is to be read as part of a much broader concern for territorial dealings with the Indian Nations, a pressing issue for 1780s America. Not unremarkably, missionary societies were heavily involved in building schools among the Indians; doubtless the framers of the Ordinance expected this activity to continue, which probably explains why they mentioned "religion" and "morality" along side "knowledge" as being necessary to good government (see Derek Davis, Original Intent, pp. 143-144). Additionally, we note that Indian tribes were then considered to be foreign nations under the federal law and, hence, would not have come under the jurisdiction of the First Amendment (see Leonard Levy, The Establishment Clause, pp. 248-249).
More than one scholar has noted how the first sentence of Article III sticks out like a sore thumb when read in the context of the rest of the article. There is a reason for this: the first sentence was never intended to be in the Article at all. Rather, as we document elsewhere, the first sentence was added to the text a few days before the Amendment was put in final form at the insistence of a land speculator who wanted to support religion on lands he purchased from Congress. Congress agreed to a modified version of his request as a guarantee that he would purchase the land.
Our point here is that it is simply wrong to think of the first sentence of Article III as some carefully thought out attempt to provide for education in the Northwest Territory. On the contrary, the sentence was (unlike the First Amendment) a hastily constructed stopgap created to appease a religiously zealous land speculator. Moreover, the fact that Congress imbedded the sentence in an Article that concerns itself with Indian affairs suggests that it was not primarily intended to deal with the education of territorial citizens. Rather, it was probably intended as verbal expression of the federal government's commitment to encourage education among the Indian nations, i.e., a preamble to the rest of the Article.
The substantive content of Article III:
In another section of this webpage we suggest that the first sentence of Article III did not provide aid to public schools in the Northwest Ordinance. In this section we want to argue that the whole of Article III, as well as some other parts of the Northwest Ordinance, were so vaguely written or so unenforceable that they were of little substantive content, i.e., they did not effectively constrain the Territorial government to act in any particular way.
Historians agree that, regardless of the noble sentiments expressed by the Northwest Ordinance, the Ordinance was far from being tightly written. American historian Paul Finkelman, for example, has authored several articles in which he notes that the anti-slavery provisions of the Northwest Ordinance were often simply ignored by governments in the territories. In particular, Finkelman notes that the anti-slavery provisions contained no enforcement mechanisms, and were undercut by the Ordinance's provision for the protection of property rights. Similarly, other sections of the Ordinance were simply too ambiguous to enforce. Historian Ruth Bloch, for example, notes that
The Ordinance has little to say about the future of social and cultural life of the region other than its ambiguous comments on slavery and its tacit reinforcement of the provisions for public education already contained in the Land Ordinance of 1785. The document begged other questions about the type of society that would evolve in the territory and the basis of its cultural integration into the republic. As far as the religious future of the West was concerned, in particular, the brief statements in Articles I and III establishing religious liberty and offering general support for "religion, morality, and knowledge," provided scarcely any direction whatsoever. ("Battling Infidelity, Heathenism, and Licentiousness: New England Missions on the Post-Revolutionary Frontier, 1792-1805," in Frederick D. Williams, ed., Northwest Ordinance: Essays on its Formulation, Provisions, and Legacy, p. 39).
Similarly, Historian Harold Hyman observes that, until Congress made specific provisions to set aside land for the support of education in the Northwest Territory, the mandate to encourage schools in the first sentence of Article III "remained more pious preachment than mandate" (American Singularity: the 1787 Northwest Ordinance, the 1862 Homestead and Morrill Acts, and the 1944 G.I. Bill, p. 25).
Finally, we note that, even if Article III did somehow violate the framer's understanding of the First Amendment, the First Amendment would not become law for two more years when Virginia ratified the Amendment on Dec. 15, 1791. To argue that Congress wrote all its legislation to conform to the standards of an Amendment they knew might not become law, and would, in any case, become law only after extensive debate among the states, seems to require a standard of perfection from Congress that is simply not required in other matters.