The Northwest Ordinance cannot be read as a commentary on the First Amendment

Accommodationists make much of the fact that the Northwest Ordinance was reenacted by the same Congress that finalized the language of the First Amendment. Indeed, accommodationists seem to read the Northwest Ordinance almost as a commentary on the First Amendment, as if one could get some sense of the meaning of the Amendment by looking at the Ordinance. But this is to flatly distort history. Below, we present two reasons why the Northwest Ordinance cannot be used to make inferences about the framer's beliefs about church/state relationships.

The Northwest Ordinance was passed before the First Amendment was ever discussed by Congress.

While accommodationists stress that the first Congress passed both the First Amendment and the Northwest Ordinance, they ignore the time frame of these passages. Barton, for example, states that the Northwest Ordinance was reenacted "in the midst of the time that the same Congress was formulating the First Amendment" (The Myth of Separation, p. 37). And to be sure, Madison's proposal for what was to become our First Amendment was introduced to the House of Representatives on June 7, 1789, a month and a half before the Northwest Ordinance was first considered in Congress. But what Barton omits is that Madison's proposal was not immediately debated. On the contrary, Madison's proposal was pushed aside in the face of more pressing business. It was not discussed on the floor of the House until August 15, 1789, eight full days after the Northwest Ordinance was signed into law.

There is more. The debate in the House did not produce the final version of the Amendment. On the contrary, the Senate approved an very different version on September 9. Because the Senate and House Amendments disagreed, a conference committee was formed to hash out the final language. The committee produced its final version of the Amendment on September 25, and the language of this Amendment was substantially different from both the Senate and House proposals (we discuss this chronology elsewhere in this webpage). The Amendment, in other words, did not assume it's final form until a month and a half after the Northwest Ordinance was signed into the law. Hence, Congress could not have had the precisely nuanced and carefully thought out language of the First Amendment in mind when it reenacted the Northwest Ordinance. As Derek Davis puts it in his book, Original Intent: Chief Justice Rehnquist and the Future of American Church/State Relations, p. 108:

The argument that Congress, in passing the Northwest ordinance, did so in contravention of matters that it had not yet even discussed on the floor, is not convincing.

The Northwest Ordinance was not written by the framers.

Despite our common assumptions to the contrary, not every important piece of legislation written during the 1780s was written by the framers of our Constitution, or reflected the framer's thinking. Indeed, when the Constitutional Convention was meeting in Philadelphia in 1787, the last Continental Congress was meeting in New York, passing all sorts of legislation. It is an irony of history that it was this last Continential Congress that authored the legislation that we now know as the Northwest Ordinance.

Note the damage this does to the accommodationist argument. The accommodationist argument assumes that Congress would never have passed the Northwest Ordinance if it contained language that was in conflict with the Constitution. But the two were written by entirely separate groups of people, meeting in different states, and for different purposes. There is no way that one group would have known (at least in detail) what the other was doing. Moreover, knowledge of each other's activities would have been irrelevant; the Northwest Ordinance was written under the authority of the Articles of Confederation, and would not have been obligated to correspond to a Constitution that had not yet been approved by the Constitutional Convention, let alone Congress or the states. Indeed, as we demonstrate elsewhere, the Northwest Ordinance was most likely illegal even under the Articles of Confederation! There is not much evidence, in other words, that the last Continental Congress was particularly concerned to tailor its legislation to any Constitution whatsoever.

We close with the words of historian Richard B. Morris:

Hence, the extraordinary action of the Old Congress, taken while the Constitutional Convention was in session, undergirds the importance of the restriction upon Congress imposed by the First Amendment. It is significant, too, on the basis of their own disestablishment laws, that of the eleven states that ratified the First amendment, only [the New England states] Vermont and New Hampshire failed to subscribe to the proposition that the support of religion and churches should be a personal and voluntary matter, and that financial assistance by the government to religion constituted an establishment of religion and violated its free exercise (The Forging of the Union: 1781-1789, p. 173).