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Property and Republicanism in the Northwest Ordinance

62 Pages Posted: 7 Mar 2014  

Matthew J. Festa

South Texas College of Law; U.S. Army Judge Advocate General's Legal Center and School; Rice University

Date Written: March 5, 2014

Abstract

Property rights were central to the political ideology of the founding era. The Northwest Ordinance of 1787 shows how the concept of property was part of both the liberal and the republican narratives of the revolutionary and constitutional eras. Conventional wisdom holds that property rights were key to the liberal argument, but that they must yield to the common good in the civic republican view. This Article shows that property was a key concept to both the liberal and republican ideologies at the founding by analyzing a critically important, but relatively neglected, founding document: the Northwest Ordinance.

The Northwest Ordinance -- one of the four most important American founding documents -- established governance in the unorganized territories of the new nation, and provided the blueprint for admitting new states to the union. A close reading of the Ordinance shows that it is fundamentally concerned with property rights, but is also thoroughly republican in character. It provides numerous rules about property ownership, in terms of inheritance, transactions, and political participation. It contains individual-rights precursors to the Constitution’s property clauses, including direct historical links to the Contracts Clause and the Takings Clause. It also envisions the role of property in an expanding republic. The property rights provisions in the Northwest Ordinance reflect a concern for not only individual liberty, but also for the promotion of the common good, through a virtuous society of individual property owners. The Northwest Ordinance shows that both the liberal and the republican narrative of the founding era rely on a fundamental consideration for individual property rights.

Keywords: Property, Legal History, Land Use, Property Rights, Constitutional Law

JEL Classification: K11

Suggested Citation

Festa, Matthew J., Property and Republicanism in the Northwest Ordinance (March 5, 2014). Arizona State Law Journal, Vol. 45, p. 409, 2014. Available at SSRN: https://ssrn.com/abstract=2405117

Matthew J. Festa (Contact Author)

South Texas College of Law ( email )

1303 San Jacinto Street
Houston, TX 77002
United States
713-646-1857 (Phone)

U.S. Army Judge Advocate General's Legal Center and School ( email )

600 Massie Road
Charlottesville, VA 22903-1781
United States

Rice University ( email )

6100 South Main Street
Houston, TX 77005-1892
United States

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