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Property and Republicanism in the Northwest Ordinance

2014; Sandra Day O'Connor College of Law; Volume: 45; Linguagem: Inglês

0164-4297

Matthew J. Festa,

American Environmental and Regional History

This Article shows that individual property rights held a central place in the republican ideology of the founding era by examining the Northwest Ordinance of 1787. Between the two predominant strains of founding-era political ideology—liberalism and republicanism—the conventional view holds that individual property rights were central to Lockean liberalism but not to the republican political tradition, where property is thought to have played more of a communitarian role as part of promoting civic virtue and the common good. Republicanism has been invoked in modern debates, and its emphases are present in current ideas such as the important new theory of “progressive property.” This Article considers property and republicanism in light of a critically important, but relatively neglected, founding document: the Northwest Ordinance. The Northwest Ordinance established republican government in the unorganized territories of the new nation and provided the blueprint for admitting new states to the union. Through a close reading of the Ordinance, this Article observes that it is a document that is fundamentally concerned with property and individual property rights but is also thoroughly republican in character. It includes numerous provisions regarding property ownership in society, it contains precursors to the Constitution’s property clauses, and it reflects a consideration for the role of property in the development and governance of an expanding republic. Only *. Professor of Law, South Texas College of Law. I am very grateful to James W. Ely, Jr., for his invaluable guidance on this project, and for very helpful comments and suggestions from Benjamin Barros, Bobby Bartlett, Josh Blackman, Candy Brown, Rebecca Brown, Al Brophy, Eric Claeys, Amanda Cooley, Don Doyle, John Goldberg, Marc Kruman, Paul Kurtz, Richard Nagareda, John Neiman, Patricia Minter, Scott Rempell, David Shipley, Jim Smith, Mark Steiner, Dru Stevenson, Sandra VanBurkleo, Dale Whitman, and from the participants at the annual meetings of the Association for the Study of Law, Culture, and the Humanities (program for Property, Citizenship & Social Entrepreneurism); the Society for Historians of the Early American Republic; the New England Historical Association; the Great Lakes History Conference; the Ohio Valley History Conference; and to faculty groups at the University of Georgia School of Law, Vanderbilt Law School, the University of Arkansas School of Law, and South Texas College of Law. Thanks also to Ashley Votruba, Brett Stavin, and the editors of the Arizona State Law Journal. 410 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. by securing property rights could the virtuous yeoman citizen be encouraged to settle the frontier and build a 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 individual liberty, but also—through a virtuous society of property owners—the common good. This suggests that individual property rights were indeed a central component of republicanism at the founding and in debates over property’s role today. 45:0409] THE NORTHWEST ORDINANCE 411