Dred Scott, the Northwest Ordinance, and the Perils of Historical Memes

Guest Blogger

David S. Schwartz 

A mistaken characterization of historical fact can become a conventional wisdom through the same process that generates memes. When it seems too much trouble to go back to the primary source, it is natural to quote a reliable secondary one, and repeat what may be an error. 

In Dred Scott, Chief Justice Taney asserted that the first federal Congress in 1789 passed legislation “reviving” the Northwest Ordinance of 1787.[1] In fact, Congress did not do this, but instead “adapted” the Northwest Ordinance to the Constitution’s new system of separated powers. This distinction is more than semantic. The notion of a “revived” or “re-enacted” Ordinance was an important premise in Taney’s argument that the Missouri Compromise was unconstitutional. I explain his argument in detail, in a new article showing that Taney’s argument against the Missouri Compromise sounded in limited enumerated powers—enumerationism—whereas the substantive due process argument was a mere makeweight tacked on at the end of this part of the ruling. 

This post focuses on the enumerationist argument, and the role played in it by Taney’s characterization of the 1789 Northwest Territories Act—a mischaracterization that is unthinkingly repeated by virtually all modern scholars.

To hold that Congress lacked power to prohibit slavery in the Louisiana Purchase territories, Taney had to neutralize both the Territories Clause and the precedent of the Northwest Ordinance of 1787. The Territories Clause grants Congress the power “to … make all needful Rules and Regulations respecting the Territory … belonging to the United States” and the Ordinance banned slavery in the territories north of the Ohio River and east of the Mississippi, claimed by the United States at the time of ratification of the Constitution. Both of these were widely assumed to support the Missouri Compromise law’s prohibition of slavery in the 1803 Louisiana Purchase territories north of the “compromise line” (Missouri’s southern border, with Missouri itself excepted). 

Taney killed these two birds with one stone. The Confederation Congress, Taney argued, was not a government with powers of its own, but was rather a mere pass-through for the collective powers of the states, which held sovereign power to ban slavery. But the states’ collective power to organize and govern the Northwest Territories, and the Northwest Ordinance which executed that power, became defunct when the Constitution “dissolved” the Confederation. Taney apparently assumed that ratification of the Constitution terminated all existing United States assets and obligations. The Territories Clause, he argued, did not apply to territories acquired only after ratification. Instead, it was inserted into the Constitution to create the necessary enumerated power to re-acquire the existing and contemplated territories for the new government and to authorize it to legislate for those territories, including the Northwest Territories. Congress needed to use its authority under the Territories Clause to “revive” the Northwest Ordinance, which had become defunct due to the “dissolution” of the Confederation.[2] 

Taney’s argument that the Territories Clause applied only to the territories held or expected by the United States at the time of ratification has been ridiculed by modern scholars as “bizarre,” “absurd,” and “difficult to take seriously.”[3] But as I argue in the paper, Taney’s argument was not only plausible, but is probably correct for a judge, such as Taney, employing originalist methodology. The existing evidence shows no more than that the Framers and ratifiers were concerned with existing territories and potential disputes among states as to their existing western land claims. No one in the Philadelphia or ratifying conventions seems to have uttered a word about future U.S. territorial expansion west of the Mississippi or south of Georgia. 

Where Taney went off the rails, however, was in the other part of this argument: that the Framers or ratifiers assumed that ratification of the Constitution dissolved or vacated all the powers, obligations, and assets of the United States under the Articles of Confederation. The absurdity of this claim—an extension of compact theory—has gone largely unremarked by scholars of the Dred Scott case. It is especially curious that these scholars uniformly accept Taney’s characterization of Congress’s Northwest Territories Act of 1789 as a “revival” of a defunct Northwest Ordinance of 1787. Starting with Don Fehrenbacher, the leading critic of the Dred Scott case, every scholar who mentions the post-ratification treatment of the Northwest Ordinance says it was “re-enacted” or “reaffirmed.” [4] A Westlaw search I conducted on January 13, 2025, shows over 100 law review articles and two Supreme Court separate opinions characterizing the 1789 statute as “re-enacting” the Northwest Ordinance.[5] This is one heck of a meme by academic standards. It suggests, as did Taney, that we are to assume that the first federal Congress felt that the Constitution’s supersession of the Articles of Confederation created a title defect to the Northwest Territories that needed to be cured. 

But the text of the first federal Congress’s Northwest Ordinance Act of 1789 does not support this “re-enactment” characterization. According to the one-sentence preamble of this extremely brief law, Congress stated its intention merely “to adapt” (not “revive,” “reaffirm,” or “re-enact”) the Northwest Ordinance of 1787 “to the present Constitution of the United States” so that the Ordinance “may continue to have full effect.” Nothing was said about the need to reassert the United States’s claim to this territory, or its rules for governing territorial inhabitants: the Ordinance’s prohibition on slavery, or its bill of rights, or anything else. There was no suggestion in the Act that the 1787 Ordinance was “herein incorporated by this reference,” even though the Statutes at Large would subsequently reprint the text of the Ordinance in a footnote to the 1789 Act, as an editorial convenience. Instead, the “full effect” was merely an administrative change necessitated by the Constitution’s creation of an executive branch. The two brief sections of the 1789 Act simply provided that territorial officials should henceforth be appointed by, and report directly to, the President rather than to Congress as under the 1787 Ordinance. [6] 

The text of the 1789 Act, together with the absence of any recorded debate in the records of the first federal Congress, and the absence of any objection or concern along the lines raised nearly fifty years later by Taney, suggest that Congress took the continued validity of the Northwest Ordinance for granted—in all respects except for the re-assignment of the Confederation Congress’s governance functions to the newly created president.[7] The Virginia Plan Resolution 6, which was operationalized by the Constitution’s enumeration of powers, belied Taney’s claim that the Confederation could exercise a power—to ban slavery in the territories—not possessed by the new Congress; it made clear that the new Congress was to “possess the legislative rights vested in Congress by the Confederation; and moreover to legislate in all Cases for the general Interests of the Union….”  St. George Tucker, himself a leading expositor of compact theory and strict construction, explained in his 1803 Commentaries on the Constitution that the Northwest Ordinance was “confirmed by the sixth article of the Constitution, which declares that all debts contracted, and all engagements entered into before the adoption of the Constitution, shall be as valid against the United States, under the Constitution as under the Confederation.”[8] The Engagements Clause is not a grant of power, but an acknowledgment of the continuance of the Confederation’s power to “enter[] into” “engagements.” Members of the first federal Congress put the matter in more fundamental terms in 1790, in the analogous context of recognizing the obligation to repay the Revolutionary War debts.  “[A]lthough the Government has been changed, the nation remains the same,” said Congressman James Madison.[9] The purpose of the Engagements Clause was merely “to remove all doubts” on this point, added his House colleague, Elias Boudinot.[10] 

The correct understanding of the Northwest Territories Act of 1789 as administratively adapting, rather than “re-enacting” the 1787 Ordinance is a minor, yet non-trivial fact in the swirling founding-era efforts to understand the nature of the Constitution and the scope of the powers it granted. Focusing on the actual errors in Taney’s analysis in Dred Scott helps us to see that enumerationism was the handmaiden of an interpretive theory—compact theory—that was ahistorical and pernicious in its consequences, as it underwrote nullification and eventually secession.

David S. Schwartz is Frederick W. & Vi Miller Professor of Law, Vilas Distinguished Achievement Professor, University of Wisconsin Law School. You can reach him by e-mail at dsschwartz@wisc.edu.