Property and Republicanism in the Northwest Ordinance of 1787
Matthew J. Festa
South Texas College of Law; U.S. Army Judge Advocate General's Legal Center and School; Rice University
This Article shows that property rights held a central place in the republican ideology of the founding era by examining a crucially important but neglected founding document: the Northwest Ordinance of 1787. The Ordinance reflects the founding-era presumption that property rights were thought to promote the common good by encouraging the wide distribution of land among virtuous republican citizens. This challenges the conventional view in modern scholarship that associates the founders' regard for individual property rights more with Lockean classical liberal ideology or interest-group pluralism than with the civic republican tradition. Civic republican ideals - with their emphasis on public virtue and subordinating individual interests to the common good - are often invoked for their founding-era pedigree as much as for their normative merits. Thus, the protection of property rights is often disregarded in modern arguments that focus on promoting the common good. Recent controversies such as the Kelo v. City of New London case suggest, however, that we might question these assumptions. Returning to the founding-era roots of the American civic republican tradition, this Article shows that in fact individual property rights were an essential component of both liberalism and republicanism in political ideology. Jefferson and others strongly associated with republicanism believed that the constitutional protection of property rights was crucial for encouraging a virtuous, independent citizenry to thrive and build a republican society dedicated to promoting the common good.
The Northwest Ordinance - enacted by Congress in July 1787, while the Constitutional Convention met in Philadelphia - is a document that is pervasively concerned with property, yet thoroughly republican in character. It shows how the founding generation placed a high value on individual property rights as an essential part of building a virtuous, prosperous society of republican citizens. As the single most important legislative achievement of the Confederation Congress, the Ordinance was a response to a pressing need to establish order and security in the vast Northwest Territory and to pay down the nation's war debt through land sales. It contained precursors to many provisions that were included in the Constitution and Bill of Rights, including the Contracts Clause, the Due Process Clause, and the Takings Clauses. The Ordinance is thus an important source for the original public meaning of constitutional property rights. More than that, however, a close reading of the Northwest Ordinance shows a broader concern for property rights in establishing a republic based on ordered liberty. Only by securing property rights could the virtuous yeoman citizen be encouraged to settle the frontier and build republican society in what would become new states. The concern for property rights in the Northwest Ordinance therefore demonstrates a desire to promote not only liberty, but also the common good. This Article reasserts the importance of the Northwest Ordinance as a founding document, and suggests that a reassessment of the role of individual property rights in is needed in legal and policy arguments today.
Keywords: Northwest Ordinance, Property Rights
Date posted: August 6, 2007