The Organic Law Theory of the Fourteenth Amendment: How the Northwest ordinance Shaped the Privileges and Immunities of the United States

Abstract

Of the thirty states that ratified the Fourteenth Amendment by 1868, twenty-eight either comprised the Congress that unanimously passed the Northwest Ordinance in 1787 or incorporated the Ordinance’s privileges and immunities into their territorial organic law. Further, the admission of states into the Union was often predicated on two conditions: that state constitutions be republican and not repugnant to the fundamental principles of the Northwest Ordinance. To nineteenth-century Americans, the Northwest Ordinance constituted the organic law of the Union, the territories, and the several states. The privileges and immunities the Northwest Ordinance protected are those the Fourteenth Amendment should protect.