Friday, January 13, 2017

The Northwest Ordinance, Part V: American Ideals

            While it cannot be denied that the character and function of the writ and the statute is in large part what defines the United States of America as a culture – America, it has so often been said, is a nation of laws and not men – the vital context that gives meaning to the acts of Congress, the Constitution, and their state equivalents is the set of philosophical ideals upon which the country was founded at the end of the 18th century. These principles, since the First Continental Congress convened in Philadelphia in the waning months of 1774, have conditioned what was possible, acceptable, and sacred within the political sphere of the union of American states, as well as what was forbidden, illicit, or restricted. When statements of purpose and resolve were called for, they served the function of explaining to all and sundry exactly what it was the American experiment was supposed to be about. The Declaration of Independence – a kind of 18th century press release intended to announce and justify the secession of the Thirteen Colonies from the British Empire – was exactly this kind of tangible invocation of the principles which define the American model of republican self-government. Though it lacked the force of law, the force of its words – and here we nod respectfully to Messrs. Jefferson, Adams, Franklin, Sherman, and Livingston – have historically moved countless men and women to champion, re-examine, and redefine the promises and obligations at the heart of what it means to be American.

There are times, however, when rhetoric is not enough. On occasion, the principles upon which the United States was built – and more than once re-built – require the weight of legal sanction in order to maintain their pride of place. The codification of a bill of rights – attached to the United States Constitution as well as to the respective state constitutions – represents the pinnacle of this confluence of statute and principle. Because certain base moral values cannot be subject to the vagaries of public opinion, it has so often been concluded, they must be clearly defined and set above the authority of even the people’s elected representatives. Thus, in Philadelphia in 1787 as well as in nearly all of the thirteen original states at some point in the 1770s or 1780s, men possessed of education, good sense, and the trust of their neighbors set themselves to precisely clarifying the core values by which the acts and intentions of all future governments would be measured. This was no easy task even under the best of circumstances, and doubtless the effort often revealed a great deal about what had formerly been the ill-defined and yet much-invoked principles around which American republicanism revolve.

The authors of the Northwest Ordinance, it would seem, were as sensible as any of their countrymen had been – and would be – to the necessity of providing clarification within a frame of government for the fundamental values to which all subsequent law must conform. Section fourteen of the same document provides clear evidence of this inclination. Divided into six articles, it laid out precisely which rights and values Congress deemed it essential that the government of the Northwest Territory adhere to. As with the inheritance and franchise regulations discussed previously, however, the conclusion preserved in the text masks the discussion which must have taken place between its authors. After all, the framers of the Northwest Ordinance had been sent to Congress to represent the interests of the various states from which they hailed. And each of these states possessed their own political traditions and legal customs which collectively conditioned the kinds of laws their respective legislatures were inclined to pass. In order to eliminate any possibility of confusion or abuse, these core values were often codified as declarations or statements of rights and integrated into the relevant state constitution. Thus, while Virginia and Massachusetts and Pennsylvania could all be said to have agreed as of the late 1780s that certain principles were wholly inviolable, they did not always agree on exactly which principles enjoyed such hallowed status.

In the normal course of the business of Congress, disagreements of this nature likely mattered very little. The national government of the United States did not concern itself with defining or protecting the domestic rights of the people it claimed to represented, preferring instead to leave that to the states themselves. The Northwest Ordinance, however, because it aimed to create a state-like government under the authority of Congress, surely demanded that its authors confront the differences they respectively nurtured as to which rights or principles required the strongest protections. Americans, as the late war with Britain and the form taken by many of the various state constitutions made clear, would not tolerate living under the auspices of any government that failed to recognize the inalienable rights that they collectively recognized as their birthright. The Northwest Territory therefore required some kind of declaration of rights, just as it required a formula for determining who among its residents could vote in legislative elections. This was certainly easier said than done, however, as the states provided example, inspiration, and warning in equal measure.

            Brace yourself.

            Ahem…

            Consider, for instance, the constitution of Massachusetts. Written and adopted in 1780, its first section is properly referred to the “Declaration of the Rights of the Inhabitants of Massachusetts.” This introductory portion of the Bay State’s first and only republican frame of government contains thirty separate articles which variously concern themselves with protecting religious freedom, guaranteeing public support for religious worship and education, prohibiting the state from granting hereditary titles, providing that taxes will only be levied by the elected representatives of the people, and declaring unequivocally that the powers specifically allotted to the various branches of government shall not be exercised by any authority other than that which is explicitly stated. While such thorough attention to detail is certainly laudable, doubtless observers from other states might have questioned whether every right or guarantee named was entirely necessary. Freedom of religion, for example, was absolutely a principle upon which a robust positive consensus existed in late 1780s America. The provisions of Article III of the Massachusetts Declaration of Rights that provided for the public subsidization of religious worship and schooling, however, would no doubt have struck residents of states like New York or Virginia as overly specific. While publicly-funded primary schools – administered, naturally, by the local religious authority – was a cherished practice in Calvinist New England and would surely have seemed worth preserving to the framers of Massachusetts’ first constitution, many other states preferred to leave early education to individual families or private institutions.

Georgia presents a possible exception. Though its 1777 constitution did not possess an explicitly-labelled declaration of rights, a set of articles near the conclusion of the document do seem to speak to many of the same principles as the section of the Massachusetts constitution discussed above. More to the point, one of these articles – the fifty-fourth, in point of fact – stated that, “Schools shall be erected in each county, and supported at the general expense of the State, as the legislature shall hereafter point out.” Lacking the ingrained association between learning and religion that was common to New England, this provision of Georgia’s inaugural constitution nevertheless made clear the intention of the framers thereof – in common with their Massachusetts counterparts – to make state-funded education a matter of the highest legal significance. While Georgia and Massachusetts may have been alone among their sister-states in this shared conviction, it remains noteworthy all the same that at least two of the jurisdictions represented in the United States Congress in 1787 – the body responsible for drafting the Northwest Ordinance and the time of its publication – held that public education was rightfully a constitutional guarantee.   

Compared to the Massachusetts Declaration of Rights, the equivalent passage of Pennsylvania’s 1776 constitution is only half as long, at sixteen articles, and tended more towards concision than meticulousness. While both documents made a point of securing the rights of their respective subjects to alter or abolish their government, hold their elected representatives to account, expect taxes to be levied only by the relevant legislative assembly, and freely assemble to petition their government for a redress of grievances, Pennsylvania’s Declaration of Rights omitted much of the clarifying or emphasizing language found in its Massachusetts counterpart. It also made no mention of providing public funding for primary religious education – for reasons explained above – and included a number of guarantees not found in the latter document. Article III, for example, decreed, “That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same.” Considering the practical non-existence of civilian police forces in the late-18th century Anglo-American world, this particular clause appears rather novel. Without being able to say for certain what its genesis might have been, it’s possible that the “internal police” of the state of Pennsylvania was simply meant to refer to the general peace and order therein. Thus, by claiming that the people of the Keystone state had the right to police themselves, the framers of the 1776 constitution may have intended merely to affirm that they and their fellow citizens were answerable to no authority but that which they themselves appointed.

It’s worth noting that the 1776 constitutions of Maryland and North Carolina both contain very similar clauses in their respective declarations of rights. In fact, both documents state, word for word, “That the people of this State ought to have the sole and exclusive right of regulating the internal government and police thereof.” The addition of the word “government” to this formula may have been highly significant at the time it was originally rendered, or it may have been a mere matter of style or rhythm. It is, again, very hard to say, owing mainly to the fact that the phrase “regulating the internal police (and/or government)” is quite vague. What can be said, at the very least, is that some states, like Pennsylvania, North Carolina, and Maryland felt that such a statement was important enough to include in their respective constitutions, while others, like Massachusetts, New Jersey, and South Carolina did not. While this may not appear to have been a terribly significant disagreement, the base intention of codifying this seemingly self-evident sentiment was doubtless far from trivial.

Like as not, those states which chose to adopt some variation on the “internal police” clause believed that without it, there may have remained some doubt as to the relationship between themselves and whatever higher authority they either chose to recognize or attempted to impose itself. Bearing in mind that many of the first American state constitutions were written at the height of the Revolutionary War, when the reestablishment of British authority – by force or by settlement – remained a distinct possibility, it perhaps seemed a wise precaution to ensure that the sovereignty of the American people receive clear and inviolable protection against future encroachment. By the same token, of course, in the event of an American victory, these same protections would have surely proven equally valuable in frustrating any potential expansion of the power of the fledgling national government. States that chose not to guarantee the regulation of “internal police” to their citizens perhaps did not fear either eventuality – a resumption of British control or the emergence of a centralizing Congress – or otherwise believed that the powers and protections they respectively possessed were security enough against any threatened loss of sovereignty.

In addition to those states which disagreed on the inclusion or exclusion of certain specific phrases or concepts within their codified declarations or statements of rights, there were yet other states whose constitutions entirely omitted any such inventory of first principles. The first post-independence governing charters of New Hampshire (1776), New Jersey (1776), New York (1777), and Delaware (1776) fell into this category, possibly demonstrating that some sizable percentage of the late-18th century American population were not wholly convinced of the efficacy of integrating a declaration of rights into their respective state constitutions. Lacking specific knowledge thereof, it at least seems possible that this sentiment arose from a similar set of concerns to those which would later act against the addition of a national Bill of Rights to the United States Constitution following its adoption in 1788. By unequivocally stating, critics of the idea then asserted, that certain specific rights were protected against the authority of the national government, it was accordingly implied that said government otherwise possessed the power to encroach upon aspects of American life which the plain text of the Constitution did not clearly name. That is to say, it was felt that the inclusion of a set of explicit prohibitions within the text of the Constitution would only begin a conversation about which powers the national government plainly possessed and which powers the specific provisions of the Bill of Rights implied it possessed.

Rather than empower the United States government to invade areas of administration and enforcement that were never intended to fall within its remit, opponents of the adoption of a Bill of Rights preferred to simply leave the Constitution as it was. The national government would function solely according to the text that the states had ratified, lacking the justification to do otherwise, and the rights of the people would remain safe and secure by default. Considering that some portion of the people who helped draft the constitutions of New Hampshire, New York, New Jersey, and Delaware were still alive in 1788 when this argument was being floated, it seems entirely possible that the lack of any declaration of rights in the constitutions of these states came from the same source as the case against attaching a Bill of Rights to their federal counterpart. Just as certain men maintained in 1788 that delimiting the rights of a sovereign people presented a dangerous opportunity for government to assume powers it might not otherwise have enjoyed, the same desired end result – the omission of an explicit declaration of rights – came to pass in a number of states over a decade prior. Coincidence, it may have been. Still, the fact remains that the necessity of an unequivocal declaration of rights as an integral part of a viable governing charter remained a matter of debate in the United States at least as late as 1787/1788.

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