Happy Northwest Ordinance Day!

On this day in 1787, Congress passed the Northwest Ordinance. It is one of the most important documents in American history and one that played a major role in the abolition of slavery and the passage of the Thirteenth Amendment. 

Here is its story:

The Northwest Ordinance organized the territory that ultimately became the states of Ohio, Indiana, Illinois, Michigan, Wisconsin and part of Minnesota. In language originally written by Thomas Jefferson, Article VI of the Ordinance declared, “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.”

In 1864, Congress relied on the language and history of Article IV of the Ordinance in drafting and passing the Thirteenth Amendment, which declares “Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

By adopting this historical language, the drafters signaled their belief that freedom, not slavery, had the deepest roots in the soul of Americans.

The successful War of Independence freed the states from the pro-slavery policies of Great Britain. The people of each state were now free to decide for themselves whether to permit chattel slavery. Northern states quickly embraced abolition while the southern states continued to allow slavery. The Northwest Ordinance deepened this nascent regional divide by prohibiting slavery in the northern territory and creating conditions which fairly guaranteed the ultimate admission of free states carved out of that territory.

The first Congress passed the Ordinance even before the adoption of the federal Constitution, and in doing so, they used language penned by the same man who drafted the Declaration of Independence, Thomas Jefferson. These two facts became deeply important in the later antebellum debates over slavery.

The 1787 Constitution recognized and maintained the rights of each state to choose freedom or slavery. Slavery itself is no where mentioned in the document. As Madison explained at the time, he “thought it wrong to admit in the Constitution the idea that there could be property in men.” Article IV’s “Fugitive From Labor Clause” applied to the escaped “property” from slave states, and the Three Fifths Clause allowed the enslaved to be counted as three fifths of a person for purposes of representation in the House of Representatives.  But the institution of slavery itself remained a creature of state law.

In the decades between the Founding and the Civil War, the federalist structure of the Constitution permitted both the maintenance of slavery in the south as well as the rise of abolitionist activity and rhetoric in the north. 

Radical abolitionists like William Garrison denounced the Constitution as an agreement with hell due to its acquiescence on slavery. Other “constitutional” abolitionists like Frederick Douglass, however, denied that the Constitution was a proslavery document and instead insisted that the country had committed itself to freedom from the very beginning. 

In support of this claim, Douglass and other constitutional abolitionists pointed to the language of Thomas Jefferson in the Declaration of Independence declaring that “all men are created equal,” as well as Jefferson’s language banning slavery in the Northwest Ordinance. 

To these abolitionists, the language of the ordinance proved that our founding fathers were opposed to slavery, thus Madison’s refusal to allow the word into the federal Constitution. Instead, they insisted, the founding generation added the Bill of Rights which, among other things, declared that “no person shall be . . . deprived of life, liberty or property without due process of law.” This same foundational idea of “freedom unless convicted of a crime” informed the Northwest Ordinance. It was a principle utterly irreconcilable with the practice of chattel slavery.

The divide between north and south over the subject of slavery, of course, ultimately led to Civil War. As that war approached its end, a majority of Republicans in Congress decided it was time to end slavery once and for all. Doing so, however, required convincing other members and the ratifying public that ending slavery was consistent with the Constitution that north claimed to be preserving.

To make this argument, the drafters of the Thirteenth Amendment adopted the argument of the abolitionists that, freedom, not slavery, was the fundamental principle motivating the founders, and that this same principle ran like a life line through every major founding document—from Jefferson’s Declaration of Independence, through Jefferson’s prohibition of slavery in the Northwest Ordinance, through the Due Process Clause of the Bill of Rights.

Finally, to further emphasize this point of historical continuity, the framers of the Thirteenth Amendment relied on the language of Jefferson’s Ordinance, with only barest of changes: “Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” As Senator Jacob Howard noted at the time, this language was already “perfectly well understood both by the public and by judicial tribunals.”

The official ratification of the Thirteenth Amendment occurred on December 18, 1865. It was the greatest moment in our constitutional history. 

But the roots of that amendment, its language and its role in our national identity, can be traced back to July 13, 1787.

Happy Northwest Ordinance Day!