Guest Essayist: Kyle Scott, Professor of Constitutional Law, University of Houston

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.

Private property is man’s liberty manifested on the natural world. Thus, property is an instrumental and an intrinsic right. It is instrumental–which is the common law’s focus–because the right to own private property creates a buffer between an individual and other individuals and an individual and the government. Property rights, properly protected, guarantee that what one labors for remains in the possession of the one who labored and thus earned the property. Protection of private property is essential to the protection of liberty as understood in the common law tradition beginning with Magna Carta.

Understood in this light we should not be surprised that the first substantive section of the Northwest Ordinance deals with inheritance. This section makes sure that even when one passes from the temporal world that the fruit of their labors remain with their posterity as they have more of a right to it than anyone else since once property becomes private it can no longer be returned to the commons without the consent of the owner.

Merely asserting a right and codifying it in a constitution or ordinance is not enough to protect that right. The protection of rights requires that the government is restrained from acting tyrannically which requires a republican form of government as well as one that separates the powers of legislating, executing, and judging into separate branches. The Northwest Ordinance provides for a republican form of government with a separation of powers thus continuing the intellectual heritage of governing documents that would lead to the U.S. Constitution.

But even the correct institutional design isn’t enough which is why the Northwest Ordinance makes clear that the laws passed by the governments of the Northwest Territory will be valid only to the extent that they protect liberty. “And for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions, are erected.”

This guiding principle is then implemented by the system of government established in the articles that follow this proclamation. But in case the governing bodies have any question, or if the people have any question, about what laws constitute good laws the Northwest Ordinance provides some guidance by stipulating common law provisions that were also adopted in the U.S. Constitution and the Bill of Rights.

Read the following passage from the Northwest Ordinance and look for the similarities between it and the U.S. Bill of Rights, particularly the 4th and 5th Amendments.

“The inhabitants of the said territory shall always be entitled to the benefits of the writs of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, where the proof shall be evident, or the presumption great. All fines shall be moderate; and no cruel or unusual punishment shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land, and should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his particular services, full compensation shall be paid for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts, or engagements, bona fide, and without fraud previously formed.”

The familiar strands that run from common law to the U.S. Constitution should give confidence to U.S. citizens that we are the inheritors of a government and values that are not the product of radical revolution or reactionary politics but of long-tested and persistent truths established through practice, tradition, and right reason. To protect what we have been given we must not rely just on institutions and laws but must cultivate the character that is required to appreciate and protect what we have been given. To do this we should reflect on one more passage from the Northwest Ordinance. “Religion, morality, and knowledge being necessary to good government and the happiness of mankind…”

April 11, 2013 – Essay #39 


Read The Northwest Ordinance here:

Kyle Scott teaches political science and constitutional law at the University of Houston and has just published his fourth book, The Federalist Papers: A Reader’s Guide. In addition to his academic writing Kyle’s work has appeared in The Washington Times, Christian Science Monitor, Houston Chronicle, Huffington Post, and Kyle is also a member of Constituting America’s College Level Advisory Board and has contributed to the Constitution in 90 Days and the Federalist Papers in 90 Days.

Twitter: @ScottKyleA

2 replies
  1. Barb Zack
    Barb Zack says:

    This essay explains “common law” and the basis for our form of government in easy to understand terms. Our Nation and it’s history and the Constitution are certainly worth defending. Professor Scott is right when he states that as a Nation we must cultivate the type of character that is needed to appreciate and protect what we have been given. The question is, we seem to be running out of the type of people we need; what can we do about that? Education obviously, but as they say, you can’t legislate morality. Word of mouth and sites like this one will be what get’s people back engaged. Let’s hope it’s not too late.

  2. Ralph Howarth
    Ralph Howarth says:

    And this NW Ordinance was passed in both of the federal houses within weeks of passing the First Amendment for the Bill of Rights. No confusion in the separation of church and state myth there as the NW Ordinance required the territories to teach religion and morality in schools in order to qualify and be considered for statehood.


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