The Northwest Ordinance–adopted in 1787 by the Congress of the Confederation and passed again by Congress in 1789 after the ratification of the U.S. Constitution to govern the Northwest Territories which included modern day Ohio, Indiana, Illinois, Michigan, and Wisconsin–is undeniably an ordinance that inherits and extends the common law tradition. This means property rights take center stage and due process of law is established as a means of protecting property rights and the rights constituent to property such as life and liberty. Read more
Passed when only a single state outlawed slavery, the anti-slavery stance of the Northwest Ordinance–barring slavery in the territories, and thus in future states–gave weight to Abraham Lincoln’s later argument that the Founders sought to place slavery “in the course of ultimate extinction.”
July 13, 1787
…There shall be neither slavery nor involuntary servitude in the said territory, Read more
Enacted on July 13, 1787, the Northwest Ordinance was a great achievement, and a document Americans should be proud to own. Yet it emerged from a Congress that, under the Articles of Confederation, had not been able to achieve very much. Circumstances in the territories, moreover, were very difficult, and the motives for passing the ordinance among many Members were less than honorable. That shouldn’t change our positive view of the Ordinance, but might instead lead us to think about how petty motives can nonetheless, sometimes, lead to great things. Read more
Adopted by the Congress of the Confederation in 1787, the Northwest Ordinance set forth a model for the expansion of the American republic. Providing a governing structure for the territory that would later become Ohio, Indiana, Illinois, Michigan, and Wisconsin, it prohibited slavery, protected religious liberty, and encouraged education. Following the adoption of the Constitution, the new Congress passed the Northwest Ordinance again in 1789. Read more
Aristotle’s Nicomachean Ethics & American Republican Government
After George Washington was sworn-in as the first president of the new American republic on April 30, 1789, he delivered his First Inaugural Address to the people’s representatives in Congress. He started the speech with his characteristic humility, stating that although he wished to retire to Mount Vernon and did not have the requisite skill to govern a country, he was nevertheless answering the call of his country. The address struck a distinctly Aristotelian chord in Washington’s wishes for his country.
In his Nicomachean Ethics, the ancient Greek philosopher, Aristotle, describes his understanding of the basic nature of man. Humans are rational creatures, he maintains, and must use that reason to exercise self-restraint over their passions. That same rationality allows humans to be ethical, Read more
Amendment 13 – Slavery Abolished, Ratified December 6, 1865.
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
An Ordinance for the Government of the Territory of the United States, North- West of the River Ohio, known as the Northwest Ordinance or “The Ordinance of 1787,” an act of the Congress of the Confederation of the United States, passed July 13, 1787.
Article 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.
The 13th Amendment is often referred to as the first of the “Reconstruction Amendments.” While it is true that the abolition of slavery was certainly the first priority for the Congress that conducted the War for the Union, it is not exactly correct to pair the 13th Amendment with the 14th and 15th Amendments, which were literally debated in the context of the aftermath of the war and specifically adopted to extend the “privileges and immunities” of citizenship to the ex-slaves. The 13th Amendment, by contrast, was debated and adopted by the Congress while the war yet raged, and specifically as blow against the rebellion as well as an affirmation of the principle of equality at the heart of the Declaration of Independence. As such, the 13th Amendment represents the cashing of the promissory note that Lincoln issued at Gettysburg in 1863.
The best way to analyze the 13th Amendment, therefore, is to recognize that it was adopted before the Reconstruction Congress took office. Then one may review the dramatic debates in the House of the Representatives and the Senate over the period from early 1864 until spring of 1865, when the resolution sending the 13th Amendment to the States was adopted. The debates of that era opened with a reports and discussion on “equality before the law,” “emancipation in the District of Columbia,” employment rights for American blacks, streetcar discrimination, and similar issues before eventuating in the direct discussion of national abolition.
What makes this progression of interest is that it reveals the Congress tentatively, cautiously, approaching the tricky question of national emancipation, although having a firm grasp of the fundamental rights at stake. What all conceded the Congress had the authority to legislate for the District of Columbia, some doubted that the Congress could even propose to the nation at large. In the end the idea of the authority of the people as a whole — the ultimate ratification authority — trumped arguments about “dispossession of property” and interfering with the “police power” in the states. The matter was sensitive not so much on account of the attitudes of the states in rebellion; it was sensitive because several Border States still held slaves but had been loyal to the Union. The idea of an uncompensated emancipation seemed a hard blow to many of their advocates and was, besides, a departure from the precedent of British emancipation in the West Indies a generation earlier The argument was summed up by Senator Lazarus Powell, Democrat from Kentucky, April 8, 1864:
“We were told by the Government in every form in which it could speak, at the beginning of this revolution, that whatever might be the result, the institutions of the States would remain as they were. The President in his inaugural address, announced that he had no constitutional power to interfere with the institution of slavery in the States. The Secretary of State announced it in a communication which he sent abroad. Congress, by a resolution, announced virtually the same thing when they declared that the object of the war was to restore the Union as it was and to maintain the Constitution as it is.”
Senator Henry Wilson, Free Soiler and Republican from Massachusetts, however, would have none of it. The question for him was a matter of setting the nation “right” and removing a fundamental flaw in its fabric:
Throughout all the dominions of slavery republican government, constitutional liberty, the blessings of our free institutions were mere fables. An aristocracy enjoyed unlimited power while the people were pressed to earth and denied the inestimable privileges which by right they should have enjoyed in all the fullness designed by the Constitution.
Senator Charles Sumner, Republican from Massachusetts, summed the matter up with the observation that the proposed amendment was nothing less than the fulfillment of a promise first expressed at the founding and periodically renewed (as in the Missouri Compromise) only with great controversy. He pointed out, accordingly, that the proposed amendment was nothing less than “the idea of reproducing the Jeffersonian ordinance.”
A quick comparison of the text of the 13th Amendment with the language of Article 6 from the Northwest Ordinance will reveal the point of Sumner’s observation. What Jefferson authored and the Confederation Congress adopted and the new government under the Constitution of 1787 solemnly re-affirmed was, effectively, the incompatibility of republicanism and slavery. While that early declaration applied only to the Northwest Territory, and subsequently, the territorial division established by the Missouri Compromise (1820), its purpose and language were to declare the fundamentals of republican government, as the Northwest Ordinance on the whole does expansively (leading some to call it the “first national bill of rights”).
Although the 13th Amendment avoids the Ordinance’s language with regard to fugitive slaves, that omission is understandable where the objective is no longer to admit slavery anywhere, rather than to temporize with it where it already existed. It is safe to say, therefore, that the meaning of the 13th Amendment is authoritatively to be recovered from the intentions and meaning of the Northwest Ordinance — not a mere administrative regulation concerning slavery, but rather a dramatic recovery of the fundamental meaning of republican freedom.
W. B. Allen is Dean Emeritus, James Madison College; and Emeritus
Professor of Political Science, Michigan State University
Monday, April 23, 2012
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Amendment II: A Well Regulated Militia Being Necessary to the Security of a Free State
When Paul Revere and his companions alerted the Massachusetts countryside of the movement of British troops, he warned his fellow-British subjects, “The Regulars are coming out.” In contrast to those troops, with their standard drill, formations, equipment, and armament, the Patriot combatants at Lexington and Concord (as well as Revere himself) were “Minutemen,” a lightly-armed, organized rapid-response component of the colonial militia. As all such militias at the time, they were “irregulars,” though the quality of the Minutemen’s equipment and training was superior to that of the militia as a whole. The distinction between such organized parts and the general militia was continued by the states, and, beginning in 1792, in the second federal Militia Act. It is a distinction that, despite changes in the nature of the militia concept, is preserved in current law.
Militia service in the colonies/states extended to all men able to bear arms, subject to some variations as to age and race. Universal service was both a practical necessity—the need to deal with insurrections and with Indian raids—and a reflection of the ancient republican idea that military service was a necessary, though not sufficient, qualification for participation in the community’s governance. Laws also typically required that individuals keep arms sufficient to serve in the militia. In fact, the armament of individual militiamen varied widely, from military-style smooth-bore muskets (e.g. the “Brown Bess”), to—more rarely—longer-range but slower-to-reload rifles, to fowling pieces and other less useful weaponry. Due to these and other limitations, militia units were found ineffective and unsuitable for pitched battle. In the field, they were used mainly for irregular, partisan-style warfare and, as adjuncts to regular units, for sniping and for harassment from the flanks of the line of battle.
There were frequent complaints about the militia’s performance. In a letter to the Continental Congress, General George Washington acidly passed judgment:
To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows….
Alexander Hamilton, who made the jump from a New York militia artillery unit to the Continental Army, was more conciliatory, magnanimously softening his criticism with praise in Federalist 25:
The American militia, in the course of the late war, have, by their valour on numerous occasions, erected eternal monuments to their fame; but the bravest of them know and feel, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.
Hamilton supported a standing army. But, as Elbridge Gerry and other anti-federalists argued, the militia was a necessary bulwark against the dangers from a national standing army. Still, the war-time experience described above could not be ignored. To be effective, such a militia had to be “well-regulated.” To “regulate” was to standardize, to conform to a norm, here, standard weaponry, equipment, and drill. The word did not have today’s principal connotation, to “control”; the early American word for the latter was the government’s power to “police.”
The Constitution’s critics were alarmed that Congress was given the power under the Constitution to “provide for organizing, arming, and disciplining the Militia….” In the minds of suspicious republicans, this afforded Congress the means to establish only a “select militia” under national control, in effect creating a national standing army by another name and laying the states prostrate at the feet of the national Leviathan. Moreover, like the 17-th century Stuart kings, Congress could complete the tyranny by passing laws to disarm individual Americans.
To lessen that potentiality, the Second Amendment was adopted for what has been described today as, figuratively speaking, a “nuclear option.” To the extent that Congress does not regulate the militia, the states are free to do so under general principles of federalism, as the Supreme Court recognized in 1820 in Houston v. Moore. The Second Amendment is not needed for that possibility. But if the Congress seeks to disarm the citizenry that composes the militia, recourse has to exist to first causes, here, the ultimate right of the people to defend their liberties, their “unalienable rights” with which they are “endowed by their Creator.” As the Minutemen did in opposition to King George, the people have the right to organize themselves into militias if the states are impotent to oppose a national tyrant. That right belongs to each individual, though it would be exercised collectively, just as the First Amendment’s right to assemble to petition the government for a redress of grievances would be. It is crucial to an understanding of the Second Amendment to keep this point in focus.
Then why did the Framers not just write that there is a personal right to own guns? Describing the Second Amendment, Supreme Court Justice Joseph Story wrote in his influential 1833 treatise on the Constitution, “The militia is the natural defence of a free country….” He then famously continued, “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers….”
Notice the division and simultaneous relation between the reason for the policy and the definition of the right itself. It mirrors the division in the Second Amendment, both in the original draft version presented by James Madison to the First Congress and in the restyled final version. The pattern for the Second Amendment, as for much of the rest of the Bill of Rights, was the English Bill of Rights of 1689, which, too, set up a similar textual division between concerns over the threat from standing armies and the right of the people to have arms. With some internal variations, early state constitutions maintained that distinction. Within the states, the danger from standing armies would come from their own governments, which would also be the ones to organize their militias. If the right to keep and bear arms in those constitutions applied only within the state-organized militia, rather than as an individual right, it would hardly present an obstacle to a potentially tyrannical state government. Continuing the trend, petitions for a bill of rights submitted by the state conventions ratifying the Constitution again contained this familiar distinction.
Nor is the existence of a prefatory clause in the Second Amendment unusual. While the structure is different from that of the other amendments, the Second Amendment’s style was quite ordinary at the time, as a quick review of the English Bill of Rights, colonial charters, the Northwest Ordinance of 1787, state constitutions, state convention petitions, and other foundational documents amply shows. During the early Republic, such bills of rights were often viewed, as Hamilton dismissively argued in Federalist 84, as mere “aphorisms…which would sound much better in a treatise of ethics, than in a constitution of government.” Such explanatory clauses allowed for ringing philosophical declarations. Today, such clauses have no legal effect but can shed light on the ratifiers’ motivation for mentioning the provision and can help clarify ambiguities. Still, as Justice Antonin Scalia wrote in his extensive analysis in the 2008 gun rights case, D.C. v. Heller, a prefatory clause cannot limit a well-understood right.
If it is said that a vigorous First Amendment makes possible a healthy republic, a vigorous Second Amendment is needed to ensure it.
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.
March 5, 2012