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The Northwest Ordinance: No Precedent

By Dick Thornburgh

October 11, 2001
Copyright © 2001 THE SAN JUAN STAR. All rights reserved. 

In one of his recent essays, former local Judge Jose Trias Monge offered to help us demythologize the status debate. Unfortunately, he once again endorsed the biggest myth of them all. Insisting that one Congress has the power to simply wave a magic wand and create an unalterable pact beyond the reach of a future Congresses, Judge Trias Monge asks:

"Why could Congress enter into an irrevocable pact such as the Northwest Ordinance, but can’t now?"

This question posed by Judge Trias Monge refers to the ordinance providing for governance of the territories Northwest of the Ohio River not within any of the thirteen states, adopted in 1787 by Congress when it was still assembled under the Articles of Confederation during the War for Independence.

To offer the Northwest Ordinance as a legal precedent for converting ELA into an unalterable and non-territorial status formula is not mere political mythology. It is historical revisionism, and a very misleading legal argument.

First, the Northwest ordinance was divided up into two parts. The first part consisted of fourteen paragraphs, establishing a very limited form of local territorial government under a Governor appointed by the U.S. Congress. Paragraph 12 illustrates the legal and political nature of the form of government that existed under the first part of the ordinance. It states that the members of the territorial legislature could elect one delegate to go to Washington,

"…who shall have a seat in Congress, with a right of debating, but not of voting during this temporary government." (emphasis added).

Thus, not only was the status of the territory not unalterable or permanent, it was expressly provided by Congress that the form of government and status of the territory was "temporary". Even more important, the only non-territorial and permanent form of government recognized under the Northwest Ordinance was statehood!

Specifically, the second part of the Northwest Ordinance consists of six articles to govern the transition of the territories to statehood, and the provision defining the purpose of the Articles of Incorporation stated that the ordinance was intended:

"…to provide also for the establishment of States, and permanent government therein, and for their admission…on equal footing with the original States…"

It is at paragraph 14, referring not to the temporary form of government prior to statehood, but to the Articles of Incorporation governing the territorial transition to a permanent form of union, that we find the provisions Judge Trias Monge would cite in support of his own political status mythology:

"It is hereby ordained and declared…that the following articles shall be considered as articles of compact between the original States and the people and States in the said territory and forever remain unalterable, unless by common consent…"

This "unalterable" compact provision does not even relate to the structure of territorial government, but to the terms for the territory to be permanently incorporated into the Union as States. The provisions relating to the political status of the territory prior to statehood are not part of the so-called "unalterable pact". The only parts of the Northwest Ordinance that Congress agreed not to alter without consent are the articles for incorporation leading to statehood.

However, even that commitment not to alter the "compact" was not an unconditional promise binding on a future Congress. Rather, after stating that it was "unalterable", Congress expressly reserved to itself the power to alter the terms of the ordinance and the laws of the territories as the national interest might require. Thus, not in one of the introductory paragraphs, but in Article 4 of the ordinance Congress provided as follows:

"The said territory, and the States which may be formed therein, shall forever remain a part of this Confederacy of the United States of America, subject to the Articles of Confederation, and to such alterations therein as shall be constitutionally made; and to all acts and ordinances of the United States in Congress assembled…"

Thus, the only thing unalterable about the Northwest Ordinance was the determination by Congress that the territory would be incorporated into the union and admitted to statehood, and that the acts of Congress would be supreme in the territory even before statehood was achieved. The local consent provision was not an alternative form of government by consent, and did not make the citizens of the territories whole for the lack of equal representation in Congress.

Judge Trias Monge somehow neglects to point this out. He also omits any discussion of the interesting point that, under the Northwest Ordinance, the U.S. citizens of the territory were required to pay federal taxes on the same basis as citizens in the States of the Union.

Ultimately, the application of the Northwest Ordinance was altered by Congress, because Ohio became a state and the Indiana territory was administered separately. The remaining territories were divided as determined by Congress until becoming the states of Indiana, Illinois, Wisconsin, and parts of Michigan and Minnesota.

Does this mean the Congress perpetrated a "hoax" by agreeing to an "unalterable compact" and at the same time providing that it could be changed by Congress without mutual consent? No, because while the Northwest Ordinance was a national policy commitment to statehood for the territories, it also contained an express reservation of residual sovereignty and plenary authority to be exercised by Congress.

What Congress agreed not to alter was its commitment to statehood when the territories were ready for full self-government. By so doing, Congress did not cede to the territories the very federal powers it would have in the territories under the territorial clause or upon admission to statehood.

Similarly, Congress authorized establishment of a constitutionally temporary form of local government in Puerto Rico under Public Law 600. That act and its legislative history have been analyzed ad infinitum, but the legal meaning is actually clear. It recognized the principle of government by consent, to be implemented only as to local affairs under a constitution adopted with the consent of the local population and Congress.

Congress approved the local constitution under the terms of Public Law 447. Like Article 4 of the Northwest Ordinance, Public Law 447 expressly confirmed supremacy of federal law with respect to the local constitution and any future amendments. Thus, Congress was even more clear about federal supremacy in the case of Puerto Rico than it was in the Northwest Ordinance.

Nevertheless, ELA myth-makers have fabricated the theory that Public Law 600 constitutes an unalterable bilateral pact beyond the reach of Congress. They have twisted the language of the federal law to create the illusion of ambiguity, which was then exploited to indoctrinate those beguiled by the fantasy of a status that combines statehood and nationhood at the same time.

When deliberations on the Young Bill created a record before Congress that clarified the history and the law, the proponents of the ELA cult piously declared that confirmation of federal supremacy would mean that Congress had perpetrated a "hoax" on Puerto Rico. The only hoax was the ideological doctrine that commonwealth status was or could be developed into a non-territorial and non-colonial status.

To his everlasting credit, Judge Trias Monge had the courage to confess in his historical writing published in 1997 that commonwealth remains a colonial status. It is unfortunate that he continues to espouse political status myths that give people the false hope of a non-territorial status under the U.S. Constitution other than statehood.

As for the Northwest Ordinance, if that is the model for decolonization that he endorses, Judge Trias Monge should cast his lot with those who support statehood. For the ordinance he holds up as a legal precedent is nothing more or less than the blueprint for admission as a state of the union.

Dick Thornburgh was Attorney General of the United States under Presidents Reagan and Bush, and was a two-term Governor of Pennsylvania.

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