Today in Supreme Court History: July 13, 1787

7/13/1787: The Articles of Confederation Congress enacts the Northwest Ordinance.

The Articles of Confederation

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[apedad]

On July 13, 1787, Congress enacts the Northwest Ordinance, structuring settlement of the Northwest Territory and creating a policy for the addition of new states to the nation. The members of Congress knew that if their new confederation were to survive intact, it had to resolve the states’ competing claims to western territory.

In 1781, Virginia began by ceding its extensive land claims to Congress, a move that made other states more comfortable in doing the same. In 1784, Thomas Jefferson first proposed a method of incorporating these western territories into the United States. His plan effectively turned the territories into colonies of the existing states. Ten new northwestern territories would select the constitution of an existing state and then wait until its population reached 20,000 to join the confederation as a full member. Congress, however, feared that the new states—10 in the Northwest as well as Kentucky, Tennessee and Vermont—would quickly gain enough power to outvote the old ones and never passed the measure.

Three years later, the Northwest Ordinance proposed that three to five new states be created from the Northwest Territory. Instead of adopting the legal constructs of an existing state, each territory would have an appointed governor and council. When the population reached 5,000, the residents could elect their own assembly, although the governor would retain absolute veto power. When 60,000 settlers resided in a territory, they could draft a constitution and petition for full statehood. The ordinance provided for civil liberties and public education within the new territories, but did not allow slavery. Pro-slavery Southerners were willing to go along with this because they hoped that the new states would be populated by white settlers from the South. They believed that although these Southerners would have no enslaved workers of their own, they would not join the growing abolition movement of the North.

https://www.history.com/this-day-in-history/congress-enacts-the-northwest-ordinance

[Dan Schiavetta]

Julian v. United States, 463 U.S. 1308 (decided July 13, 1983): request for bail denied by Rehnquist because grant of certiorari appeared very unlikely (applicant had been caught with drugs while trying to board flight to Peru -- sure sounds like a flight risk to me)

Capital Cities Media v. Toole, 463 U.S. 1303) decided July 13, 1983): refusing to rule on stay of order (affirmed by the Pennsylvania Supreme Court) prohibiting press disclosure of jury photos and other jury information; denial was without prejudice to renew pending appeal of related orders; later the Court denied a stay by remanding to the Pennsylvania Supreme Court for a decision on reasons for upholding the prohibition; on remand the Pennsylvania court held it did not have jurisdiction for this application (now they tell us!)

Carter v. United States, 75 S.Ct. 911 (decided July 13, 1955): Frankfurter denied motion to extend time to file for certiorari; rejected "new counsel" and "busy with criminal matters" excuse ("sorry, I can't comply with Supreme Court rules because I have more important things to do!")

[Cal Cetín]

Looks good:

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

https://avalon.law.yale.edu/18th_century/nworder.asp

[Michael P]

Boy, some heads must explode upon reading that.

Is there a prefatory phrase, or are "schools and the means of education" only to be encouraged in the context of supporting religion, morality, and knowledge?

[Martinned]

there shall be appointed from time to time by Congress, a governor

So much for the authority of the President to be in charge of all executive branch officials.

[Mr. Bumble]

...of course the whole thing was superseded when the Constitution became the supreme law of the land.

[Michael P]

Do you mean the president of the Confederation Congress? This was under the Articles of Confederation, not the Constitution.

[Bob from Ohio]

"authority of the President"

July 13, 1787

Before the Constitution.

Good point though!

[Martinned]

The governor and judges, or a majority of them, shall adopt and publish in the district such laws of the original States, criminal and civil, as may be necessary and best suited to the circumstances of the district

...and there goes the major questions doctrine.

[ReaderY]

Another example is admiralty. Congress asked the courts to come up with a law of admiralty for the United States. An entire law of admiralty.

[Bob from Ohio]

"and there goes the major questions doctrine."

July 13, 1787

Before the Constitution.

Good point though!

Don't you have some tulips to plant or wooden shoes to carve? Maybe remedial snark classes?

[Martinned]

So you're telling me that the Northwest Ordinance became invalid when the new Constitution entered into force? That is news.

[Bob from Ohio]

The new congress passed the Northwest Ordinance of 1789 which ratified but modified the 1787 ordinance. Among other things, the President nominated and had control over officials.

Lots of things are news to you.

[Cal Cetín]

Re-adopted and modified, 1789:

https://www.historykat.com/US/statutes/act-provide-government-territory-north-west-river-ohio-1789.html

[Nelson]

There's a reason why the Articles of Confederation, a state-centric government with weak federal powers, quickly failed and had to be replaced by the Constitution.

With a stronger, but constrained, federal government and a Bill of Rights (including the Ninth), America has become the most advanced and powerful nation on Earth.

Coincidence?

[Cal Cetín]

The Constitution can be seen under glass during normal visiting hours.

[Sarcastr0]

That matters only if you think the thing is a talisman.

[Cal Cetín]

I mean that outside of its glass case it tends to be ignored.

Exceptions: The two-senator-per-state requirement, Section 3 of the Fourteenth Amendment, and the Twenty-Third Amendment.

[Sarcastr0]

*Your* take gets ignored. That's not the same as the Constitution being ignored.

[Michael P]

The Establishment Clause that only bound the federal government until after the Civil War?

[Brett Bellmore]

"Before that pesky First Amendment Establishment Clause, amirite?"

Well, yeah. About 4 years before.

[Cal Cetín]

John Calhoun also challenged the constitutionality of the Northwest Ordinance.

[Martinned]

And you think that the Congress that adopted the Northwest Ordinance wasn't part of the Federal government?

[Michael P]

What do you think you're getting at?

[Michael P]

Right? English, how does it work? What does "forever" mean?

[Michael P]

So your theory is that this clause required the establishment of religious schools, but only until the First Amendment was adopted? And that dissolved the obligation that the United States entered into?

[Michael P]

Wrong. Rights in the Bill of Rights don't apply outside the federal government until the Supreme Court incorporates a right against the states. Even then, the first cases to do that were overturned by leftist justices. Most recently, such a right was newly incorporated against the states in 2010, and your side is still upset about it.

[Michael P]

Not pedantic at all. The Supreme Court has held that some parts of the Bill of Rights are not incorporated against states at all, and others are only partially incorporated. It's not just the "the SCOTUS had to finally find the rights in the 14th".

[Michael P]

So, yes, you think a new Constitution wipes away previous obligations. It's a novel idea, to be sure!

[David Nieporent]

I am quite certain that the Congress that adopted the Northwest Ordinance was not bound by a First Amendment that wasn't ratified until 3 years after a constitution that wasn't ratified until 1 year after the Northwest Ordinance was passed.