Northwest Ordinance and Separation

Myths About the Separation of Church and State

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Myth:
The Northwest Ordinance provides for the support of Christianity and demonstrates that the authors of the Constitution did not believe in strict separation.

Background
Sometimes, in an effort to find early American documents which support the idea that the authors of the Constitution did not really mean to separate church and state, accommodationists will point to the Northwest Ordinance. According to this myth, the Northwest Ordinance provided for the public funding of religion in the Northwest Territory - and did so through the votes of the same people who voted for the First Amendment.

The purpose of the Northwest Ordinance was to establish a basic governing structure in the Northwest Territory, an expanse of land stretching from the Great Lakes down through the Ohio river valley. Originally, the Northwest Ordinance was enacted in 1787, when the government was still run according to the Articles of Confederation. It was then reenacted in 1789, just after the Constitution was passed.

The point of contention is the first sentence of Article III:

Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.

According to accommodationists and others opposed to the strict separation of church and state, this statement is supposed to demonstrate a number of things. At the very least, it is claimed that Congress at the time didn't have a problem with government support of religion, religious beliefs and religious organizations. It is also often claimed that this demonstrates that, for politicians of the time, it was considered a given that "good government" required the presence of religion. David Barton, one accommodationist who seems fond of these myths, has even argued that:

Since the same Congress which prohibited the federal government for the "establishment of religion" also required that religion be included in schools, the Framers obviously did not view a federal requirement to teach religion in schools a violation of the First Amendment. (The Myth of Separation)

Response
Although this argument seems initially plausible, there are a number of problems with it which prevent it from being successful. Curiously, most of those who try to make use it tend not to go any further than quoting the Ordinance, assuming that it simply speaks for itself; the truth of the matter is, however, that the historical context tells a very different story.

One of the most important facts to consider is simply that there is no evidence that anything at all was done on the authority of this sentence. There is no evidence, for example, of anyone transferring money from the government to any religious groups and citing this passage as the basis for it. Indeed, Article III in its entirety seems to have failed to actually cause anything to happen - not surprising, since it reads like one long rhetorical flourish not designed to enact anything specific in the first place.

If this sentence was included in order to authorize the government support of religion, why did such support fail to ever materialize? We can justifiably conclude that it was not designed to provide for aid to religious organizations, and hence cannot be used to justify the constitutionality of such actions today.

Another interesting point is the fact that the Ordinance was created in part to structure dealings with the native Americans of the region. These tribes were considered foreign nations by the government, and as such, relations with them were not covered under the First Amendment (or the rest of the Bill of Rights). Because of this, it cannot qualify as a violation of the letter strict separationist reading of the Constitution. However, it's true that if accommodationists were correct in their reading, it would indeed contradict the principle of strict separation.

In addition, it is questionable whether or not the Northwest Ordinance was ever a valid law. For one thing, it was originally passed when Congress was operating under the Articles of Confederation - a document which did not grant them authority to pass such legislation. Even when reenacted under the Constitution, it is arguable that where it conflicted with the Constitution, the Constitution was superior and the Ordinance was invalid.

Another key facet of the way accommodationists use this is that the Northwest Ordinance was reenacted by the same Congress which passed the First Amendment. However, this point is actually more harmful than helpful to their case. Why? Because the Ordinance was passed before the First Amendment - indeed, eight days passed between the time that the Ordinance was signed into law and James Madison's first proposal for the First Amendment was even debated!

In essence, the accommodationist argument would have us believe that the Northwest Ordinance contradicts the separationist reading of something which hadn't even been considered yet. Because of this, it cannot be assumed that those who voted for the Ordinance had the First Amendment in mind at the time, and therefore it cannot be used as a basis for inferences about their beliefs as to what the First Amendment meant.

This myth and the accommodationist arguments which accompany it are fundamentally undermined by the fact that, in one of its earlier forms, this passage would indeed have explicitly provided for the government support of religion. Thomas Jefferson originally wrote the Northwest Ordinance, and some anti-separationists try to make much of this, ignoring the fact that his original draft was completely secular in nature. Later, the following addition was proposed:

Institutions for the promotion of religion and morality, schools and the means of education shall forever be encouraged.

If it had passed in this way, the Northwest Ordinance would indeed do a lot that the accommodationists claim. But the fact of the matter is that this phrasing was not included, and this is not a minor point. Had Congress really intended for the government to aid or encourage religion in any way, this phrasing would have expressed that intent; by adopting what was actually passed, they instead demonstrated that this was not their intention at all.

A final point worth noting is that even if all of the above is incorrect, the anti-separationist position is predicated upon the idea that whatever the First Congress did was necessarily constitutional. This premise, however, is completely wrong. Many measures passed by the First Congress were fiercely contested - the Sedition Act of 1798, for example, was certainly unconstitutional. Thus, just because they thought they were doing something constitutional doesn't mean that we, too, must agree.

Those who spread the myth that the Northwest Ordinance has anything to say about the First Amendment or that it indicates that the first Congress intended the First Amendment to allow for government support of religion are either ignorant of the actual history behind the Ordinance, or they are deliberately distorting it for their own ends.