Essay 7-C: The Northwest Ordinance and Founding Documents

Essay Read by Constituting America Founder, Actress Janine Turner

If English John Locke was the philosophic father of the Declaration of Independence, France’s Baron de Montesquieu was the philosophic founder of the United States Constitution—America’s first ally in peace, even as French soldiers and sailors served as our first allies in the Revolutionary War.

In his 1714 treatise, The Spirit of the Laws, Montesquieu posed a question to his contemporaries. Democratic regimes could arise in ancient Greece because the small city-states could assemble the few thousand citizens in one place to make decisions. Since large modern states cannot do that, how can the people be heard?

He answered: with such institutions as representation and separated, balanced powers, modern regimes could become sustainable democratic republics. Seven decades later, Publius would make that argument in The Federalist, defending the Constitution during the struggle for its ratification. America, he wrote, could be a new kind of republic, an “extended” republic, large enough to defend itself against the powerful monarchic empires surrounding it while still enabling the sovereign people to govern themselves.

But how far could the extended republic extend beyond the original thirteen states? Here, too, Montesquieu had a thought—not a question and answer but a warning.

The Roman Republic had been an empire. As long as it extended no farther than Italy, its central institution, the senate, could rule effectively. “But when it carried its conquests further,” he wrote, “when the senate had no direct view of the provinces.” Rome sent proconsuls [pro-con-suls] to rule them, men who necessarily held legislative, executive, and judicial powers, since they ruled foreigners, not Romans. This made them resemble the Turkish despots of the modern world. Montesquieu calls them “the pashas of the republic.” Thus, the Roman republic built a regime contradiction into itself: “A conquering republic can scarcely extend its government and control the conquered state in accordance with the form of its constitution.” Resenting this tyranny, and especially the heavy taxes it imposed, the “subject nations” came “to regard the loss of liberty in Rome” as the precondition of “the establishment of their own” liberty. First, powerful military rulers in the provinces marched on Rome, ending republicanism and seizing power for themselves; eventually, the subject nations attacked the Roman emperors, ending Roman rule itself.

In the summer of 1787, as the delegates sweltered at the Constitutional Convention addressing Montesquieu’s question about popular self-government, members of the Continental Congress addressed Montesquieu’s warning about republican empires, framing the Northwest Ordinance, which historian Peter S. Onuf called “the blueprint for a great American empire of continental dimensions.” How could a republic establish an empire without destroying itself in the long run? How could it secure the natural and civil rights of citizens who took the risk of moving into what was then the Wild West—not Texas, Arizona, or New Mexico, but the places we now know as Ohio, Indiana, Michigan, Illinois, and Wisconsin?

Their answer was that ‘we won’t have a colonial empire, like Rome or the British Empire that was modeled on Rome. We will not keep the western territories subordinate to the original states. We will prepare them to stand up “on an equal footing” with those states in the American Union. The settlers will become citizens enjoying civil equality, including guarantees of religious liberty, representative government, and the rights of habeas corpus and jury trials. To these political guarantees we will add commercial ties to the rest of the country that property rights foster.’

Crucially, Congress demonstrated that it understood what way of life comported with republican citizenship. “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, Schools and the means of education shall forever be encouraged.” Civic education, pervaded by Biblical morality, had already been established in New England when they were still colonies, where most of the settlers in the Northwest territories would come from. The Ordinance ensured that they would bring their schooling with them to civilize the frontier.

Enacting the Northwest Ordinance was one thing; implementing it was another. The prolongation of federal rule, including control of public lands; the borders between future states (Ohio and Michigan nearly went to war over Toledo,) the increasingly vexed matter of slavery, which the Ordinance banned from the territories, but some settlers wanted to introduce; and even the Ordinance’s authority over the settlers, some of whom claimed that popular sovereignty overrode Congressional law—all of these occasioned bitter polemics between the territories and Congress, and among the settlers themselves.

Unlike the North-South regime dispute over slavery, eventually resolved by a brutal civil war, the disputes over the Northwest territories ended peacefully. Animated by the principles of the Declaration of Independence and governed under the United States Constitution, America would indeed become a lasting republican empire, thanks in part to the Northwest Ordinance, in what Thomas Jefferson called the “empire of liberty.”

Will Morrisey is a native of Rumson, New Jersey. He has a B.A. from Kenyon College, an M.A. and Ph.D. in political science from the New School for Social Research. A professor emeritus of Politics at Hillsdale College, he is the author of ten books, including Self-Government, The American Theme: Presidents of the Founding and Civil War. His essays and book reviews can be found online at Will Morrisey Reviews.

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