Allan W. Vestal


The Article looks at the first article of compact of the Northwest Ordinance,

the religious liberty guarantee: “No person . . . shall ever be molested on

account of his mode of worship or religious sentiments . . . .” Congress

provided that the Northwest Ordinance articles of compact would “forever

remain unalterable.” But in a fugitive slave case from 1851, Strader v. Graham,

Chief Justice Roger Taney declared the articles of compact to be no longer in


In evaluating Chief Justice Taney’s reasoning, the question posed at the

dawn of the 20th Century by historian Professor Andrew McLaughlin is

instructive: “Will they say that, because the men of 1787 did not act and speak

in the terms of philosophy which arose from the civilization of the next

century . . . they did not do what they intended to do?” Using the language and

history of the Northwest Ordinance, the Article argues that Chief Justice

Taney’s conclusion was in error.

The religious liberty protection of the Northwest Ordinance first article of

compact is arguably broader than that of the First Amendment. The article

suggests that it should be available to protect individuals disadvantaged and

discriminated against on the basis of their beliefs on matters of religion. Such

protection would extend to the over ninety million Americans who live in states

as to which the first article of compact was made applicable.