Administrative Constitutionalism and the Northwest Ordinance

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The Northwest Ordinance is the fourth of the organic laws of the United States that preceded the U.S. Code, alongside the Declaration of Independence, the Articles of Confederation, and the Constitution respectively. A lesser‐explored aspect of the Ordinance is the structure of government it created by delegating executive, legislative and judicial power over the Northwest Territory (subject to Congressional limits) to a governor, a secretary, and three judges.

Viewed anachronistically, government under the Ordinance strongly resembled the modern administrative state; empowering federal officials to exercise power over U.S. citizens. The language of the fourth organic law may have resembled a state constitution, but in reality, it imposed not from below, but from above. The federal officials in charge derived their authority not from the people they governed, but from Congress.

This Article explores through a historical legal account the Ordinance as a creature of early administrative construction and as a necessary example from which to view the current debate, revealing the limits of popular sovereignty in the United States and the failure of territorial governance to include the people that it governed.

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