An Organic Law Theory of the Fourteenth Amendment: The Northwest Ordinance as the Source of Rights, Privileges, and Immunities
Hegreness, Matthew J., The Yale Law Journal
NOTE CONTENTS INTRODUCTION I. THE NORTHWEST ORDINANCE AND FEDERAL ORGANIC LAW A. Organic Law Versus Constitutional Law B. The Northwest Ordinance as Federal Organic Law C. Use of "Privileges" and "Immunities" as Terms To Express the Principles of Organic Law II. THE GENESIS OF CIVIL RIGHTS: THE NORTHWEST ORDINANCE AND THE ORGANIC ACTS OF THE TERRITORIES A. The Privileges and Immunities of the Northwest Ordinance B. Rights, Privileges, and Immunities in the Territorial Offspring of the Northwest Territory C. The Manifest Destiny of the Northwest Ordinance: The Spread of Civil Rights South and West 1. The Northwest Ordinance Extended to the Southwest Territory 2. The Principles of the Ordinance Extended to the Mississippi Territory 3. The Northwest Ordinance in the Territory of Louisiana 4. The Final Stage of the Ordinance's Spread: The Principles of the Northwest Ordinance Extended to the Pacific Northwest III. THE NORTHWEST ORDINANCE IN THE STATES A. The Continuing Importance of the Northwest Ordinance as Territories Become States B. The Northwest Ordinance as an Articulation of the Privileges and Immunities Common to the Original Thirteen States IV. THE NORTHWEST ORDINANCE IN THE ANTEBELLUM COURTS A. Judicial Erosion of the Authority of the Northwest Ordinance as Active Organic Law in the States B. The Supremacy of the Ordinance over the Bill of Rights in the Territories Before Dred Scott C. Dred Scott's Assault on the Supremacy of Territorial Organic Law V. THE ORDINANCE DURING RATIFICATION AND RECONSTRUCTION: THE ORGANIC LAW OF THE FRAMERS OF THE FOURTEENTH AMENDMENT AND THE JUSTICES IN THE SLAUGHTERHOUSE CASES A. The Importance of the Northwest Ordinance to the Framers of the Fourteenth Amendment B. The Privileges and Immunities of the Northwest Ordinance and the Slaughterhouse Cases CONCLUSION
We are accustomed ... to praise the lawgivers of antiquity ... but I doubt whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked, and lasting character than the Ordinance of 1787.
--Daniel Webster (1830) (1)
Largely forgotten by a nation whose century of territorial expansion is now a faded memory, the Northwest Ordinance is preserved in every version of the United States Code as one of the four "Organic Laws of the United States of America," (2) a vestige of the Ordinance's glorious past. The Northwest Ordinance of 1787 (3) organized the Northwest Territory and provided a process by which new states would enter the Union on equal footing with the original thirteen. (4) As this Note will demonstrate, the Northwest Ordinance also defined the fundamental rights, privileges, and immunities of citizens of the United States. At the heart of the Ordinance are six Articles of Compact between the original thirteen states and those to be formed from the territories. These Articles of Compact articulated the judicial, political, economic, and religious freedoms that would forever be protected in the territories and in new states. These rights were so fundamental that Chief Justice Marshall suggested that state legislation that violated principles of the Northwest Ordinance could be struck down as "unconstitutional." (5) In addition to creating and defining the rights of citizens, the Northwest Ordinance was the vehicle through which these rights spread--from a few states abutting the Atlantic to the many states of a manifestly continental republic. Throughout the first half of the nineteenth century, congressional acts consistently employed the terms "privileges" and "immunities" to extend the freedoms in the Ordinance's Articles of Compact throughout the territory of the United States--west to the Pacific and south to the Gulf of Mexico. …