The Northwest Ordinance had no constitutional authority.

As we have seen, the Northwest Ordinance is not a good basis upon which to launch an attack on the broad interpretation of the First Amendment. Even beyond that, we argue that the accommodationist reverence for the Northwest Ordinance is misplaced; the Ordinance was not legal when it was passed by the Continental Congress. Moreover, it's legal status remained ambiguous throughout it's history. Hence, the Ordinance is itself proof that the founders of our nation passed laws that were unconstitutional!

Was the Northwest Ordinance ever a valid law? The answer might surprise a lot of people. On July 13, 1787, the document that has come to be known as the Northwest Ordinance was passed by the 18 members of the Continental Congress, meeting in NYC. (The other members of that Congress were in Philadelphia meeting at the Constitutional Convention.)

Before that date, resolutions proposed on April 23, 1784, but never passed into law, had governed how the new territories were laid out. With the passing and signing of the proposed Ordinance, those 1784 resolutions were made null and void. The Northwest Ordinance of 1787 took their place.

The Ordinance and the Continental Congress:

The problem with the Northwest Ordinance is that it was passed by a Congress operating under the Articles of Confederation, which did not give the Congress the authority to make such laws.

James Madison had strong views on whether the Congress had any constitutional authority to pass laws concerning the new territories:

Congress has undertaken to do more: they have proceeded to form new states, to erect temporary governments, to appoint officers for them, and to proscribe the conditions on which new states shall be admitted to the confederacy. All this has been done; without the least color of constitutional authority (Federalist #38).

On the contrary, under the Constitution, Congress was allowed:

To admit new States into the Union; but no new States shall be formed or erected within the jurisdiction of any other state, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the states concerned, as well as of Congress (Federalist 43).

On the same subject of New States, the Articles of Confederation were silent:

In the Articles of Confederation, no provision is found on this important subject. Canada was to be admitted of right, on her joining in the measures of the United States; and the other COLONIES, by which were evidently meant the other British colonies, at the discretion of nine States. The eventual establishment of NEW States seems to have been overlooked by the compilers of that instrument. We have seen the inconvenience of this omission, and the assumption of power into which Congress has been led by it (Federalist #43).

The truth of the matter was that the Continental Congress had no authority to draft such a bill, vote on such a bill, and ultimately pass such a bill into law. Hence, while the Northwest Ordinance was on the books as a law from July 1787 to Aug - Sept 1789, it had no real legal standing, having been passed by a body without proper authority.

The Northwest Ordinance and the Constitution:

One might assume that when the First Congress reenacted the Ordinance in 1789, it gave the ordinance legal authority. On the contrary, Congress' actions were both perplexing and legally ambiguous. In particular, we note that Congress did not review the Ordinance to ensure it's conformity with the newly minted Constitution, which almost surely meant that the Ordinance contained unconstitutional provisions. Additionally, the legal history of the Ordinance suggests that it's constitutional authority was at least somewhat suspect.

With respect to Congressional review of the Northwest Ordinance, recall that the Ordinance was written and passed by the Continental Congress in New York at the very same time the Constitutional Convention was meeting in Philadelphia. Since the two documents were produced independent of each other, it is extremely likely that the two documents were in conflict with respect to specific Constitutional provisions. Yet it appears that Congress never addressed the substance of the Ordinance at the time of reenactment. Rather, Congress considered and passed a few paragraphs of technical prose that made the administrative provisions of the Ordinance conform to the executive and legislative structure of the Constitution (i.e., the words "President of the United States" were substituted for the words "President of the Congress", etc.). No substantive discussion of the Ordinance's provisions concerning habeas corpus and trial by jury (article two), Indian affairs (article three), slavery (article six), etc., ever occurred. This all but assured that the Ordinance would contain at least some unconstitutional provisions.

Not surprisingly, two of the Ordinance's six articles were at various times challenged in Courts of Law. In particular, the sixth article (concerning slavery) was frequently ignored by the courts, and several battles arose over it concerning it's legality. It was believed by some, based on the wording of the Sixth Article, that slaves who entered into the areas covered by the Northwest Ordinance for more than transit through such lands would become free men.

In most of the battles fought in court over this Sixth Article, it was frequently ruled as invalid and non-binding. In Strader v. Graham (1851), for example, the Supreme Court ruled that the Ordinance was no longer in force in the states formed in the northwest territory.

Strader involved the status of three slaves who traveled regularly into Ohio to perform as a part of a musical group. On one trip they fled the state into Canada, and the former owner was seeking redress. The Court turned to a previously decided case, Permoli v. The First Municipality, 3 How. 589, to help resolve the decision. Permoli held that the Northwest Ordinance (which has been extended by Congress to apply to the Southwest Territory) was no longer in force in the states formed in the Southwest Territory. Accordingly, the Strader Court held the same rule applied to the states in the Northwest Territory.

The interesting thing about the Permoli case is that it directly involved the First Article of the Northwest Ordinance, which guaranteed religious freedom. Some of the comments of the Strader court in its citing of this case are interesting, and I will quote them here:

Permoli claimed the protection of the clause in one of the six articles which provides for the freedom of religion, alleging that it had been violated by the First Municipality. And he brought the question before this court, upon the ground that it had jurisdiction under the Ordinance. But the court held that the Ordinance ceased to be in force when Louisiana becomes a State, and dismissed the case for want of jurisdiction. This opinion is, indeed, confined to the Territory in which the case arose. But it is evident that the Ordinance cannot be in force in the States formed in the Northwest Territory, and at the same time not in force in the States formed in the Southwestern Territory, to which it was extended by the present government....And when it is decided that this Ordinance is not in force in Louisiana, it follows that it cannot be in force in Ohio.

In addition, the Strader court held that many provisions of all six articles contained in the Ordinance were inconsistent with the Constitution and, where there were inconsistencies, the Constitution is clearly superior:

Indeed, it is impossible to look at the six articles which are supposed, in the argument, to be still in force, without seeing at once that many of the provisions contained in them are inconsistent with the present Constitution, and if they could be regarded as yet in operation in the States formed within the limits of the Northwest Territory, it would place them in an inferior condition as compared with the other States, and subject their domestic institutions and municipal regulations to the constant supervision and control of this court.

The six articles, said to be perpetual as a compact, are not made part of the new Constitution. They certainly are not superior and paramount to the Constitution, and cannot confer power and jurisdiction upon this court. The whole judicial authority of the courts of the United States is derived from the Constitution itself, and the laws made under it.

As we have already said, it ceased to be in force upon the adoption of the Constitution, and it cannot now be the source of jurisdiction of any description in this court (Strader v. Graham, 51 U.S., 10 Howard, 395, 435-42).

The rule here is, Constitutions are Supreme Laws of the land, and once a State has adopted its Constitution, that Constitution then becomes the Law of that State, and the Ordinance has become null and void in that State. In addition, the ruling seems to be suggesting at the least that even while the Northwest Ordinance was passed "again" by the First Congress, under the national Constitution, it may be in conflict with that Constitution.

Similarly, antislavery advocates admirably argued for prohibition of slavery based on Article VI of the Northwest Ordinance. In order to do so, however, they had to argue that the Northwest Ordinance had constitutional status. In the famous Dred Scott case, 60 U.S. (19 How.) 393 (1856), this is exactly what plaintiff's attorneys argued. Unfortunately, for Scott, constitutional status was not forthcoming for the Northwest Ordinance:

Consequently, the power which Congress may have lawfully exercised in this Territory (under the Ordinance), while it remained under a Territorial Government, and which may have been sanctioned by judicial decision, can furnish no justification and no argument to support a similar exercise of power over territory afterwards acquired by the Federal Government. We put aside, therefore, any argument, drawn from precedents, showing the extent of the power which the General Government exercised over slavery in this Territory, as altogether inapplicable to the case before us.

Indeed, some scholars have questioned whether the Northwest Ordinance was ever Constitutional. "In the American system, the national Constitution clearly was paramount. The test of the Constitution also provided the authoritative standard. The Northwest Ordinance simply did not measure up; its authors did not act under any specified constitutional mandate, nor was their work in turn sanctioned by the sovereign people. Hastily written and poorly organized the Ordinance did not compare favorably with the skillfully constructed national Constitution." ("The Northwest Ordinance," in Roots of the Republic: American Founding Documents, by Peter S. Onuf, p. 250, our emphasis).

Hence, we note the ironic contradiction in the accommodationist argument: while accommodationists generally claim that government is overstepping its powers in striking down such practices as government-sponsored prayer in the public schools, they use as support for their position a phrase from a bill that was passed by a government overstepping its powers and authority.