Will Morrisey Reviews

Nicholas Murray Butler: Why Should We Change Our Form of Government? New York: Charles Scribner’s Sons, 1912.

President of Columbia University for more than four decades, President Taft’s running mate during the electoral debacle of 1912, president of the Carnegie Endowment for International Peace, and winner of the Nobel Peace Prize in 1931, Nicholas Murray Butler ranked among the most distinguished Americans of the first half of the twentieth century. He is almost entirely forgotten, partly because he gave his legacy a self-inflicted wound by lauding Mussolini throughout the 1920s and well into the Thirties, seeming to take the strutting mountebank as an Italian version of Teddy Roosevelt. And he only came around to condemning the Nazis in 1938, in the aftermath of the Kristallnacht pogrom. While it is true that many of his most acidulous critics (including the socialist scribbler, Upton Sinclair, a Soviet apologist in the same year) entertained similarly benign impressions of Communism, their folly was no excuse for his. At least, unlike so many of them, he eventually corrected his error, if belatedly. As far as can be determined, he remained an anti-Semitic snob for the rest of his life, as seen in his imposition of quotas on Jewish applicants to Columbia. Imposed in the 1920s, the quotas were only removed when federal law required their removal in 1947, two years after Butler’s retirement.

His friendship with Roosevelt did not prevent him from breaking with the former president, once TR became the candidate of the Progressive Party, on the grounds that both Roosevelt and the eventual victor, Woodrow Wilson, had departed from the principles of the American regime, including the Declaration of Independence’s assertion of the unalienable rights of individuals and the United States Constitution’s republican, as distinguished from democratic, institutions. The short answer to his question, “Why should we change our form of government?” is, ‘We shouldn’t.’ His book is essentially an unusually trenchant political campaign document, published the same year as his futile run for high office. As Americans careened toward regime change, Butler stood astride the Model-T, yelling ‘Stop!’ And honorably so, his subsequent political tergiversations notwithstanding.

Butler regretted that “in the United States the words politics and politician have association that are chiefly of evil omen.” “In the true and broad sense of the word, politics is one of man’s highest concerns, and nowhere should the word have loftier and nobler associations than in a twentieth century democracy.” The fact that it doesn’t proceeds from the “mediocre and second-rate” character of contemporary politicians, who are not fit successors of Publius or Calhoun, Lincoln or Douglas. Their unimpressive character proceeds from the “sadly commercialized” condition of contemporary politics. By this, Butler doesn’t mean the prevalence of political advertising but the fact that “a large proportion of the population is trying to get the government to spend some part of its money taken in taxes upon them, upon their own localities, or upon their special interests.” Where “individuals and communities are leaning upon government,” the “sense of manly independence is being supplanted by a desire to be taken care of” under a regime of “socialism or of what may perhaps be called semi-socialism,” Progressivism. A ‘politics of compassion,” a politics of “unreflecting sentimentality,” can finally cause only “stagnation, paralysis, and death” in the body politic or, alternatively, “disorder, anarchy, and the eventual rule of brute force.” Not slavery, the supposed cornerstone of American constitutionalism as claimed by the Confederacy’s vice president, Alexander Stevens, but its opposite, civil liberty “is the cornerstone upon which our American constitutional system has been built.” 

“The curious notion seems widespread that there exists somewhere and somehow an all-wise and beneficent State or People—something different and apart from individual human beings and not subject to their limitations and defects—which all-wise and beneficent State or People will take care of us better than we can care for ourselves, if only we will give it the opportunity.” Dismissing this as “crude nonsense,” Butler identifies genuine “human progress” not with this progressivist ‘State and People’ formula—which nicely conveys the contradiction between administrative management and democracy—but with the need for “each individual” to raise “his own standard of intelligence and of conduct.” As Butler puts it, “we are now told that the people are either incompetent or unable to choose representatives who will really serve their highest interest,” while at the same time being offered as a “remedy” the “appeal over the heads of the people’s chosen representatives to the people themselves,” in the form of such devices as popular initiative and referendum. But both mass democracy and elitist bureaucracy, somehow combined, conceals that fact that “human society is not and can never be anything more than the sum total of the individuals who compose it,” with “no excellences of its own which are not their excellences,” excellences that need protection by “fundamental law against the attacks and invasions of temporary majorities.” This being so, “the representative republic erected on the American Continent under the Constitution of the United States is a more advanced, a more just, and a wiser form of government than the socialistic and direct democracy which it is now proposed to substitute for it.” Republicanism, not socialism or semi-socialism, an oxymoronic “socialistic democracy,” remains “the chief glory of our American system of government and its most original contribution to political science,” the “true path of progress” for Americans. 

A new regime of socialistic democracy will amount to a revolution “in our political beliefs,” in “our accustomed forms of political action,” and in “our point of view, in our ambitions, and in our aspirations”—that is, in the purpose, the institutional shape, and in the way of life of Americans. Progressives charge that “the representative republic fails really and readily to reflect public opinion” because “these representative institutions easily become the prey of the self-seeker, of the special interest, of the wire-puller” and that “therefore, they must be uprooted, overturned and destroyed.” But “a really progressive movement” would advance “toward differentiation, toward complexity, toward specialization of structure and function,” not toward centralization and simplification. Progressivism “is reactionary”; if implemented, it will erode “those guarantees of civil and political liberty which underlie our whole organized society,” especially the separation of powers. Indeed, the idea of constitutionalism itself erodes, as seen in the state ‘constitutions’ Progressives have enacted, which consist of “an odd and curious medley of genuine constitutional principles and a host of statutes”—where the state university will be located; the salary of the state auditor, and “hundreds of merely incidental details of government that it is now fashionable to put upon the same plane with vitally important expressions of fundamental political principle.” Thus, obscurantism veils the gathering of detailed, administrative rule in state capitals, a strategy Progressives will duplicate at the federal level, if permitted. “Under the influence of” the European revolutions of 1848 instead of our own revolution,” America’s new states in the West “began to turn the fundamental law of our various commonwealths into a huge collection of statutory details.” In those new states also, “we reduced the representative to the position of a mere delegate,” giving him instructions “as to what he is to do when elected,” thereby “reduc[ing] the representative from the high, splendid, and dignified status of a real representative chosen by his constituency to give it his experience, his brains, his conscience and his best service, and made him a mere registering machine for the opinion of the [current] movement” of public opinion, “whatever it might happen to be.” Bureaucratism on the one hand, democratization on the other, all at the expense of the ruin of the republican regime. Legislation by voter initiative and referendum has further undercut republicanism, since “legislation so initiated “cannot be examined in committee, its sponsors cannot be cross-questioned” but “must be taken or left precisely as they project it into the political arena.” All of this takes away what Publius regarded as the sine qua non of republicanism: the responsibility of each representative for his actions. In its stead, “the initiative will result in registering in more or less rapid succession the consecutive emotions of a small proportion of the electorate” who sign petitions to get things on the ballot. Contra Publius, the passions, not the reasons, of the public will prevail.

“Those who believe that nothing in this world is fixed, or definite, or a matter of principle”—historicists—will applaud. Butler dissents, remarking that “the fundamental guarantees of the British and American Constitutions…are beyond the legitimate reach of any majority, because they are established in the fundamental laws of human nature upon which all govern and civilization and [indeed] progress rest.” “Aristotle pointed out that democracy has many points of resemblance with tyranny,” including the “likeness between the demagogue in a democracy and the court favorite in a tyranny.” What Tocqueville calls “a democratic despotism may be malevolent.” Under these circumstances, “the majority will take direct and responsible control of your life, your liberty and your property” and “all that constitutes individuality will have gone by the board,” having “been poured into the great boiling pot of the social whole.” Unlike the executive veto seen in genuinely republican constitutions, referendum does not compel reconsideration of legislation; in fact, it prevents it by promoting “decision without discussion.” 

Along with voter initiative and referendum, Progressives advocate provision for voter recall of elected officials. Although this does not violate “the fundamental principles of representative government”—it does not evade the deliberative practices of elected or appointed officials—it does foment “restless meddlesomeness” rather than “statesmanship.” And “when applied to the judiciary,” recall “is much more than a piece of stupid folly,” falling to the level of “an outrage of the first magnitude.” To those who say that judges should serve the people,” Butler answers with a firm “No!” “The judges are primarily the servants not of the people but of the law,” with the “duty to interpret the law as it is” and not “to express their own personal opinions on matters of public policy” or to express the majority opinion of the moment. Cases before the courts, and especially constitutional cases, “must be decided under the guidance of a fearless and independent judiciary,” a judiciary unintimidated by an impassioned citizenry. Butler cites the leading American socialist of the day, Eugene V. Debs, who asked, rhetorically in his unfortunately titled tract, Appeal to Reason, “Don’t you see, comrades to have in the hands of an intelligent, militant working class the political power to recall the present capitalist judges and put on the bench of our own men?”

As for the executive branch, the power to recall elected officials would be equally pernicious. At the height of Genêt’s agitation, Washington would have been recalled, as would Madison have been, “during the agitation which led to the War of 1812 with England,” as would Lincoln have been, “in the dark days of 1862 and 1863, as would Cleveland in 1893, when he was making his fight for a sound financial policy and system” in the midst of a stock market panic. “Yet, when we get far enough away from the public deeds of these strong men, we see that the particular things which at the time most excited the animosity and roused the passions of large numbers of people, were the very things that made them immortal in American history.” “Every one of them might have been dashed from his high place if the passions of the moment would have gotten at them when those passions were at their height.” The Progressives’ mixture of administrative statism and direct democracy will remove “the desire and interest of public-spirited men to hold office,” “driv[ing] them away from it as with a scourge.” Progressivist policies will lock in the already-existing mediocrity of American politicians.

With respect to America’s political economy, Butler advocates neither laissez-faire capitalism nor socialism, preferring to “lay the collective hand so heavily upon business activity that the individual’s self-interest,” along with his “individual initiative” “shall, if it be possible, be held always subordinate to the common good.” Butler regards “laissez-faire” as a thing whose time “is now passed,” given population growth, the concentration of that population in cities, “the annihilation of distance and time by steam and electricity,” the factory system and the modern corporation—all of which tend “to bring about a real, though invisible, business partnership between the individual and the community,” a partnership all too prone to “the easily demonstrated moral evils of unrestricted and unsupervised competition.” Given these realities, “the era of unrestricted individual competition is gone forever,” having “been taken up into a new and larger principle of [corporate] cooperation.” In contrast, the cooperation seen in socialism does not so much conflict with contemporary social conditions as it conflicts with the even more fundamental fact of “human nature,” which “is not going to change because a new form of economic organization is hit upon.” Under socialism “the natural law which selects an individual for a given task by proved fitness” will be removed and replaced, with “selection by the collective mind” substituted for it. This will “dry up at their source the well-springs of progress,” just as the revolution against republicanism will do. On the contrary, Americans “must have a care that the individual is given the freest possible scope for the exercise of his talents, and that he is protected in the just and honest gains which come to him.” If we “build up a great army of public employees and bureaucrats,” neither economic nor political liberty will survive. 

Given the financial and industrial conflicts of the era (labor violence, for example, had never been as bad, and has never been as bad in the decades since), Progressives agitated for reform in that area, as well. “One trouble with politics and business is the amount of talk about it”; “these torrents of words flow from the serene seclusion of an empty mind,” but meanwhile America suffers in “an industrial civil war” in which “government is at war with the economic forces of the body politic.” Butler identifies three political-economic problems that need to be settled: banking and currency, transportation systems, and large corporations. Hamilton built the first American banking system, which Jackson and Benton destroyed. “The financial troubles and difficulties of the United States began when the principles of Hamilton were forgotten, and the nation started out on the uncharted sea of reckless financial experiment.” President Cleveland upheld those principles, under assault from William Jennings Bryan and the Populists. Although that threat has dissipated, Progressivism has taken up many of its follies. In the field of transportation, railroad networks obviously require some sort of governmental supervision; Butler favors the establishment of the Interstate Commerce Commission, so long as some of its members are railway men, who actually understand the business. As to the corporations or “trusts,” Butler judges that “every attempt to lay down a general rule or a definition of combinations that, by their very existence, are in restraint of trade, has been, and I think will always be, futile” because “economic conditions change almost while we are talking about them, and no nation can carry on a successful and profitable domestic and foreign trade which attempts to draw hard and fast lines and limits, based on present conditions, for the business activity of the future.” So long as the Sherman Anti-Trust Act is interpreted as Senator Sherman intended, as an application of “the old and well-regulate principles of the common law to cases arising within the jurisdiction of the federal courts,” the Act will mean “flexibility, adaptability, reasonableness, public benefit.”

Butler does not want to see the abolition of the “limited liability corporation,” which he deems “the greatest single discovery of modern times, whether you judge it by its social, by its ethical, by its industrial, or, in the long run—after we understand it and know how to use it—by its political effects.” He defines this kind of corporation as “a device by which a large number of individuals may share in an undertaking without risking in that undertaking more than they voluntarily and individually assume.” That is, if the company goes bankrupt, I, as a stockholder, lose my investment but I cannot be sued as an individual for the recovery of any debts the corporation has incurred. Such corporations also achieve “huge economy of scale in production and in trading” while steadying the “employment of labor at an increased wage” and far superior ‘benefits’—disability and old age insurance, pensions for widows. Crucially, the corporation is “the only possible engine for carrying on international trade on a scale commensurate with modern needs and opportunities.” These advantages notwithstanding, corporations also pose threats, namely, control of prices and unfair business practices owing to monopoly or near-monopoly of a given market. Such abuses occur not because corporations are bad in themselves but because “troubles of this kind always arise from individual delinquents”; for this reason, “we need no more law than we now have to get at individuals who commit immoral offenses, dishonorable acts, whether in trade or out of it.” Again, the principles of the common law will do. The criticisms of corporations today are identical to those leveled at co-partnerships in England when they were invented, five hundred years ago; one of the main lessons of Adam Smith’s Wealth of Nations was the futility of attempting to interfere with market forces in order to prevent abuses. What is needed is “an effective campaign of education that will make clear to the great masses of the people what are fundamental economic laws and what is the relation of those laws to the possibilities of statute-making; and then to demand that in the highest public interests constructive statesmanship be substituted for the everlasting antics of political demagoguery.” That is, economic strength may wane if ‘democracy’ impedes the commercial dimension of the democratic and commercial republic.

Such economic education should be supplemented by civic education. In a speech before the National Education Association in 1909, Butler invokes another of Tocqueville’s themes, the “restlessness” of democratic times. He denies that poverty is its cause. Rather, “old beliefs, old traditions, and old customs are giving way before the corroding tooth of time; and as the time-honored creeds, political social, and religious, lose their hold, others equally controlling and imperative do not come forward to take their place,” leaving “immense masses of men” with “almost boundless opportunities for good or evil, but without guiding principles with which to work.” This is a particular concern for educators, since “the rising generation of Americans is growing up without any proper knowledge of the fundamental principles of American institutions and American government,” leaving them prey to demagogues who bring them “to a state of mind in which envy, greed, and hate are elevated to the lofty place which should be occupied by respect and confidence, as well as by political insight, political knowledge, and political experience,” once instilled by “the stern facts” that faced earlier Americans. “There are those among us, some of them in places of responsibility and great influence”—the former president of Princeton, current governor of New Jersey, and current candidate for the presidency of the United States, Woodrow Wilson, among them?—who “call these principles outworn, antiquated, obstacles to popular government.” But what does historicism do, if not effectively “reestablish the time when might made right”? [1] “The carefully built guards which have been put about individual rights and liberties are denounced as fortresses of privilege by those who seek privileges for themselves at the expense of the rights of others,” within the structures of an administrative state. This isn’t only an American problem. “In all parts of the world there are those” who, confusing individuality with selfishness, “would strike at the roots of human individuality and deprive it of the favoring soil in which alone it can grow.” 

Real progress comes with “the development of liberty under law,” the “two words upon whose true and faithful exposition all training for citizenship must rest.” Liberty “attaches to man as a social and political animal,” contradicting “license just as completely as it contradicts and denies tyranny.” Butler takes “the principles underlying our civil and political liberty” to have been “indelibly written into the Constitution of the United States.” This is inaccurate. The American Founders wrote the institutions of liberty into the Constitution, but the principles of the Constitution are written into its Preamble, which in turn serves as a buckle between the Constitution and the principles of unalienable right enunciated in the Declaration of Independence. [1]

Butler reassumes solid ground in noting the importance of a way of life, what he calls “a habit of will by which the individual instinctively conforms his action in concrete cases to the abstract principles in which he professes belief.” He does not mean that civil society is an ‘organism,’ as Progressives were wont to proclaim. “Society as a whole is nothing more nor less than the sum total of the individuals who compose it.” Such concepts as ‘society’ and ‘the state” have “no separate metaphysical” character. “Individual men and women” compose both society and the state. Therefore, “if men’s standards of action be raised, if their citizenship be real, sincere, and vital, then society is already reformed. Nothing else remains to be done.” To the teachers, Butler recommends Daniel Webster’s December 1820 oration commemorating the English settlement of New England, a “remarkable exposition of the meaning of republican institutions as Americans had framed them.” [2] 

In this early speech, Webster links the American regime to “our Puritan Fathers,” and particularly to their quest for religious freedom. “The principle of toleration” enables men “to look at the sternest despotism in the face.” Their emigration from England “was not a flight of guilt,” an attempt to escape the rule of law in their homeland, “but of virtue.” And while it is true that the empire of Britain was and remains superior to those of pagan Greece and Rome, the colonists became restive under its regime. They were settlers, with no intention of returning to England. They esteemed the principle of the consent of the governed in both government and religion. They resented imperial Britain’s insistence on a monopoly of trade. They upheld property rights, not only in the sense of the right to own private property, protected by the laws, but more broadly in the sense of ‘owning’ the country they had settled. These, Webster contends, inclined them to independence from the beginning. This spirit may be seen in “the nature and constitution of [American] society” today: republicanism, “a free system” of government, with a popular base; property rights, with no primogeniture; the rule of law; and limited military expenditures (unlike France, Webster adds); many small, local governments; bicameralism; free schools; and finally, “morality and religious sentiment” as the foundation of all the rest. Looking ahead, Webster argues, Americans must abolish the slave trade, “this inhuman and disgraceful traffic,” and promote literature, especially a literature that reinforces the features of the American regime he has described. Like Butler, here Webster inclines toward Burkeanism, not so much the ‘abstract’ natural rights of the Declaration of Independence. He prefers a sort of traditionalism that is not inconsistent, however, with natural right, telling his listeners, “I hardly know what should bear with a stronger obligation on a liberal and enlightened mind, than a consciousness of alliance with excellence which is departed.”

With respect to economic freedom, Butler’s exemplar is not Webster but Alexander Hamilton. Hamilton understood that “the independence of the United States was only partially achieved when the political shackles which bound the colonists to King George were broken.” Americans still depended upon Britain for its manufactured goods; “the people must be industrially independent as well, if their nation was to endure.” Although there could be only one national capital, there could be hundreds of industrial capitals, of which Paterson, New Jersey was the first. For his pains, “Hamilton was called alternately a monarchist and a thief, a liar, and a traitor,” but the United States owes its “birth to union” to Washington and Hamilton, even as it owes its “birth to liberty” to Abraham Lincoln. Of America’s “five great builders”—Washington, Hamilton, John Marshall, Webster, and Lincoln—Hamilton “was in some respects the most remarkable.” His “genius was not only amazingly precocious, but it was really genius,” as his reports on public credit and on manufactures illustrate; they “belong to the permanent literature of political science.” “In his forty-seven years, Hamilton lived the life of generations of ordinary men.” Hamilton intended to craft a financial policy that “would bind the Union hard and fast,” an industrial policy “that would make it rich, and, within the bounds of possibility, self-sufficient,” and a foreign policy that would guard “the political and economic independence already provided for.” He has succeeded. And while “no man is indispensable” in the sense that “the universe does not hang on a single [human] personality,” without Hamilton “the nation that stood the strain of the greatest of civil wars,” eventually extending from one ocean to another in prosperity, the nation “that is not afraid of permitting individual citizen to exert their powers to the utmost if only they injure no one of their fellows”—that nation would be “very different without “the labor of his life.” 

Hamilton disproves the historicist evolutionism that underlies Progressivism. This theory, initially derived from “observations on earthworms, on climbing plants, and on brightly colored birds,” has now been applied “blithely to man and his affairs.” Evolutionism claims that the “fittest” species survive—those that best ‘fit’ their environment. When the environment changes, some species become extinct, others flourish. But fitness is not goodness; the fittest are not necessarily the best, inasmuch as fitness “has in it no moral element whatever.” This being so, “moral elements, what we call progress toward an end or ideal, are not found under the operation of the law of natural selection, but have to be discovered elsewhere and added to it.” “You will read the pages of Darwin and of Herbert Spencer in vain for any indication of how the Parthenon was produced, how the Sistine Madonna, how the Ninth Symphony of Beethoven, how the Divine Comedy or Hamlet or Faust.” Without the sense that “moral consideration must outweigh the mere blind struggle for existence in human affairs,” nothing will stop “the widespread and ominous revolt of the unfit” from killing off the likes of Iktinos and Callicrates, Raphael, Beethoven, Dante, Shakespeare, Goethe, and yes, Hamilton. The unmoderated struggle for power that evolutionism describes can only result in the confusion of might and right, the inclination to “abolish” God and Mankind. [3] Not the ever-shifting demi-principles of historicism but the enduring principles of the Declaration of Independence and the United States Constitution can and should continue to guide Americans, even as their economic, social, political, and geopolitical circumstances change.

Notes

1. It is likely that Theodore Roosevelt, running on the ticket of the recently formed Progressive Party, now counted among these men, as well.
2. For further discussion, see “America’s Declaration of Independence” on this website under the category “American Politics.” See also Daniel Webster: “First Settlement of New England, The Works of Daniel Webster. Six volumes. Boston: Charles C. Little and James Brown, 1851. Volume I, pp. 1-54.
3. Butler here cites Robert Louis Stevenson’s satirical fable, “The Four Reformers”: “Four reformers met under a bramble bush. They were all agree that the world must be changed. “We must abolish poverty,” said one. “We must abolish marriage,” said the second. “We must abolish God,” said the third. “I wish we could abolish work,” said the fourth. “Do not let us go beyond practical politics,” said the first. “The first thing is to reduce men to a common level.” The first thing,” said the second, “is to give freedom to the sexes.” “The first thing,” said the third, “is to find out how to do it.” “The first step,” said the first, “is to abolish the Bible.” “The first thing,” said the second, “is to abolish the laws.” “The first thing,” said the third, “is to abolish mankind.” The fourth reformer, the one who wants to abolish work, cannot work up the energy to say anything more.

Peter S. Onuf: Statehood and Union: A History of the Northwest Ordinance. Notre Dame: University of Notre Dame Press, 2018. First published in Constituting America, May 29, 2026.

If English John Locke was the philosophic father of the Declaration of Independence, France’s Charles Louis de Secondat, baron de la Brède et de Montesquieu was the philosophic founder of the United States Constitution—America’s first ally in peace, even as French soldiers and sailors served as our first allies in the Revolutionary War.

In his 1714 treatise, The Spirit of the Laws, Montesquieu posed a question to his contemporaries. Democratic regimes could arise in ancient Greece because the small city-states could assemble their few thousand citizens in one place to make decisions. Since large modern states cannot do that, how can the people be heard? 

He answered: with such institutions as representation and separated balanced powers, modern regimes could become sustainable democratic republics. Seven decades later, Publius would make that argument in The Federalist, defending the Constitution during the struggle for its ratification. America, he wrote, could be a new kind of republic, an “extended” republic, large enough to defend against the powerful monarchic empires surrounding it while still enabling the sovereign people to govern themselves.

But how far could the extended republic extend beyond the original thirteen states? Here, too, Montesquieu had a thought—not a question and answer but a warning. The Roman republic had been an empire. As long as that empire extended no farther than Italy, its central institution, the senate, could rule effectively. “But when it carried its conquests further, when the senate had no direct view of the provinces” Rome sent proconsuls to rule them, men who necessarily held legislative, executive and judicial powers, since they rued foreigners, not Romans. This made them resemble the Turkish despots of the modern world; indeed, Montesquieu calls them “the pashas of the republic.” Thus, by extending its empire the Roman republic built a regime contradiction into itself: “A conquering republic can scarcely extend its government and control the conquered state in accordance with the form of its constitution.” Resenting this tyranny, and especially the heavy taxes it imposed. the “subject nations” came “to regard the loss of liberty in Rome” as the precondition of “the establishment of their own” liberty. First, powerful military ruler in the provinces marched on Rome, ending republicanism and seizing power for themselves; eventually, the subject nations attacked the Roman emperors, ending Roman rule itself. [1]

In the summer of 1787, as the delegates sweltered at the Constitutional Convention, addressing Montesquieu’s question about popular self-government, members of the Continental Congress addressed Montesquieu’s warning about republican empires, framing the Northwest Ordinance, which historian Peter S. Onuf calls “the blueprint for a great American empire of continental dimensions.” How could a republic establish an empire without destroying itself in the long run? How could it secure the natural and civil rights of citizens who took the risk of moving into what was then the wild west, the places we now know as Ohio, Indiana, Michigan, Illinois, and Wisconsin? 

Their answer was, we won’t have a colonial empire like Rome or the British empire that was modeled on Rome. We will not keep the western territories subordinate to the original states, as the British had attempted to do with the American colonies. We will instead prepare them to stand up, as the Northwest Ordinance stipulated, “on an equal footing” with those states in the American Union. The settlers will become citizens enjoying civil equality, including guarantees of religious liberty, representative government the rights of habeas corpus and to jury trials. To these political guarantees we will add commercial ties to the rest of the country, ties that property rights foster. Article IV, section iii of the future Constitution reinforced this: “New States may be admitted by the Congress into this Union” and “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” with “nothing in this Constitution” to be “so construed as to Prejudice any Claims of the United States, or of any particular State” now in the Union.

Crucially, Congress demonstrated that it understood what way of life comported with republican citizenship. “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, Schools and the means of education shall forever be encouraged.” Civic education, pervaded by Biblical morality, had already been established in new England when it still consisted of colonies, and New England was where most of the settlers in the Northwest territories would come from. The Ordinance ensured that they would bring their schooling with them. They wouldn’t be bringing their slaves with them; the Ordinance prohibited that. Slavery wasn’t as important an element of the New England political economy as it was in the Southern states, so that would be no barrier to prosperity in the settlers’ new home.

Enacting the Northwest Ordinance was one thing, implementing it another. The prolongation of federal rule, including control of public lands; the borders between future states (Ohio and Michigan nearly went to war over Toledo), the increasingly vexed matter of slavery, which some settlers wanted to introduce, despite the ban; and even the Ordinance’s authority over the settlers, some of whom claimed that popular sovereignty in the future states overrode Congressional law—all of these occasioned bitter polemics between the territories and Congress, and among the settlers themselves. The first settlers didn’t always help matters. As Onuf remarks, “The West that policy makers imagined—peopled by orderly industrious settlers, connected to the old states by common interests and loyalties and busily contributing to the national wealth and welfare—was nothing like the West that already existed,” a region “infested” by “speculators, squatters, and other adventurers” who aimed at “promoting their private interests, defying state and national authority, and entertaining overtures from foreign powers.” More, north of the Ohio River, “hostile Indians remained a formidable presence.” While the Ordinance guaranteed that “the territories would not have to resort to revolution to vindicate their constitutional rights,” what exactly was the constitutional status of the Ordinance itself? Once Congress had sold federally owned lands to settlers, to what extent were those settlers bound to obey the Ordinance, or were they free to enact laws contradictory to its provisions, so long as they enacted nothing that contradicted the Constitution itself?

Onuf emphasizes Congress’s material interest in developing western lands. It had incurred a substantial war debt, and they wanted to use land sales to pay it. But a willing seller needs willing buyers, and “a few false steps could transform the dream of western development into a nightmare of lawlessness, frontier warfare, and disunion.” Only a sound legal framework consistent with American constitutional principles would bring real settlers into the region, persons who could govern themselves, defend themselves against the still-formidable Indian nations, and establish farms and other businesses which could sustain commercial ties with the other parts of the Union. A subsistence economy, similar to that already in place among the Indians, would not suffice. “Unlike the leaders of the Revolution, proponents of union through development sought to mobilize private interest and enterprise, not self-denial and sacrifice, to bring forth a new order”; one suspects that this was because they weren’t fighting a war.

The Founders themselves disagreed on the matter. Surprisingly, James Madison, who argued forcefully for the United States as a viable “extended republic” in the tenth Federalist—published the same year as the Ordinance was enacted—had maintained, three years earlier, that western migration was a zero-sum game, that it would depopulate the original states, weaken land values, and funnel resources away from “that maritime strength which must be [the states’] only safety in case of war.” Expanding the Union too far would endanger it. James Monroe and Rufus King were equally skeptical. Against such views, Benjamin Rush cited the American “passion for migration,” which, far from diminishing the population, had spurred its increase. Yale College president Ezra Stiles, one of the earliest American students of demography, correctly predicted that Americans would multiply in population without necessarily dividing politically; he expected the population to rise from approximately 3 million in the late 1700s to fifty million in the centennial year of 1876. (He was over-optimistic, but the loss of so many young men in the Civil War, which he had no way of calculating some seventy-five years in advance, would have skewed any estimate; the actual population in 1876 was forty million.) In the end, Congress decided to take the risk.

Their first step was the Land Ordinance of 1785. To organize lands purchased from the Indians, Congress sent surveyors from each state to lay out townships of six square miles each, plots of one square mile (640 acres) within each township to be sold for one dollar per acre. The worry was that the land was so fertile that the settlers would not need to be industrious, preferring to live in “semisavage indolence”—forming regimes incompatible with the United States. The price tag for purchase, however, “would block out poor, lazy squatters,” instead attracting “industrious settlers determined to recoup their investment,” all “clustered in adjacent townships” (rather like Thomas Jefferson’s “ward republics”) which could form viable local markets while sustaining and encouraging habits of self-government. By contrast, squatters (Crèvecoeur described them as “no better than carnivorous animals of a superior rank”) would quarrel with the Indians and “drag everyone else into their disputes” while attacking the surveyors and any civilized folk who dared to enter the region. George Washington, himself a surveyor and purchaser of Ohio lands before the Revolutionary War, shared Crèvecoeur’s distaste for the squatters and exerted his considerable influence to shut them out. With orderly settlement, he wrote, “the gradual extension of our Settlements will as surely cause the Savage [Indian] as the Wolf to retire,” white semi-savages along with them. Simultaneously, as Jefferson hoped, in Onuf’s words, that “rational, systematic settlement” would prove an exercise in civic education, an opportunity to found “enlightened communities” throughout the Northwest. The forerunners of the settlers, the surveyors would act not only “as the eyes and ears of potential purchasers but would help produce accurate surveys that would supply information about tree types and soil fertility as well as potential routes to markets,” the connection between knowledge and land values” being “axiomatic.”

The Land Ordinance was necessary to the population of the Northwest Territories, but insufficient. “Policy makers realized that they could only attract orderly and industrious settlers to the Northwest if they guaranteed law and order—and land titles—from the very beginning of settlement”; they needed to establish “effective territorial government.” That would mean temporary colonial governments in each future state, along with the sale of land rights to men capable of promoting sales and of assisting settlers. The Ohio Company of Associates, founded in Boston in 1786 by four businessmen, met the latter need. Allying with William Duer, secretary of the U.S. Treasury Board, the Company purchased 1.5 million acres and established its anchor settlement in Marietta, Ohio. The Northwest Ordinance met the need for government.

That government consisted of a General Assembly, with representatives from any settlement with a population of 5,000 or more; a government appointed by Congress for a three-year term; a secretary appointed for a four-year term, charged with keeping records, including an accurate copy of all laws, a five-member legislative council, and a three-man court. Congress had final approval of all General Assembly members. In addition to this institutional structure, the Ordinance set down what was effectively a Bill of Rights, those rights including religious freedom, habeas corpus, trial by jury, and representative government—civil rights reflecting the natural rights enunciated in the Declaration of Independence, rights governments should secure, according to the Declaration. With the right to representation came the duty to pay taxes as “apportioned on them by Congress,” in the same proportion “as in the original States.”

“This purpose, those ruling offices, and those rulers all contributed to the final regime element necessary” to prepare the territories “for their admission to a share in the federal Councils on an equal footing with the original States: a way of life consistent with republicanism. Hence the Third Article: “Religion, Morality and knowledge being necessary to good government and the happiness of mankind, Schools and the means of education shall forever be encouraged.” The complementary ‘foreign policy’ of the Territory would be that “the utmost good faith shall always be observed towards the Indians, their lands and property shall never be taken from them without their consent; and in their property, rights and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them.” As for slavery, “There shall be neither Slavery nor involuntary Servitude in the said territory otherwise than in the punishment of crimes, whereof the party shall have been duly convicted,” although slave fugitives from other areas “may be lawfully reclaimed” and returned to their ‘owners.’

There was a caveat, when it came to statehood. The segments of the Northwest Territory that were expected to become states needed to meet a population threshold of 60,000, but even after statehood as achieved, remaining federal lands were still to be controlled by Congress and could not be taxed by the states. Ohio was the first to reach the required population. Its Congressionally appointed governor, Arthur St. Clair, a member of the Federalist Party, saw that most of the settlers were Democratic Republicans; his attempts to delay statehood (and thus to delay the seating of what would surely be two additional Democratic U. S. senators), rankled the Jeffersonian Democrats, fervent advocates of states’ rights eager to increase their Congressional majority. When Congress passed an enabling act calling for a state constitutional convention and prescribing terms for the new state’s admission, including a condition that disallowed Ohio from taxing federal lands for five years after they were sold to private individuals. Doubtless in a mood of irony, the Federalists could now accuse the states’-rights Democrats of violating the state’s rights. “What were the constitutional limits off national authority in the territories?”

“In characteristically blunt fashion,” Governor St. Clair described Ohioans as “a multitude of indigent and ignorant people” who were “ill qualified to form a constitution and government for themselves.” By leaving their home states and settling in the Ohio territory, they had “ceased to be citizens of the United States and became their subjects”—and therefore in effect his subjects. This reminded Ohio settlers of the condition of all Americans under the British Crown. However, as Onuf recalls, “the Atlantic states had grown powerful and virtue through protracted colonial apprenticeships”; further, for the moment, Ohio needed the rule of law, which only the federal government could provide. St. Clair wanted Ohio’s protracted apprenticeship to be protracted as long as possible. Needless to say, President Jefferson did not.

Democrats “chose not to deal systematically with the constitutional questions raised by their Federalist opponents,” preferring to rely on their majorities in Congress and in Ohio itself. Such political power led some of the other territories to delay statehood altogether, preferring to allow federal tax revenues to finance their governments—for which, under statehood, they would need to pay themselves.

This comfortable muddle did not address another controversy, the question of states’ boundaries. The Ordinance described the boundaries of the first three states to be formed, the ones in the southern section of the Territory: Ohio, Indiana, and Illinois. But Congress didn’t decide whether the northern section would have one state or two, and what their borders would be. For example, in 1787, no one knew “the precise location of Lake Michigan.” More broadly, “the key question was whether or not the Ordinance controlled Congress as well as the people of the Northwest as they set about forming their new states.” After all, the Ordinance was just that—an ordinance passed by Congress. It predated the ratification of the U. S. Constitution, but it could not be said to enjoy the same status. How far, then, did federal control over the states’ boundaries extend, when it came to settling boundary disputes between the southern states and, for example, Michigan, which was still a territory? “The framers of the Ordinance wanted it both ways. They wanted to fix boundaries while retaining the flexibility to provide for unforeseeable contingencies. But these goals could be contradictory.”

For Ohio and Michigan, the border controversy became acute in the mid-1830s. Ohioans wanted Toledo to be part of their state. It was expected to be the terminus of the Wabash and Erie Canal, Ohio’s only access point to Lake Erie. But Michiganders also wanted Toledo. The territorial governor of Michigan and the state governor of Ohio sent troops into the area. President Jackson intervened, sending negotiators, who staved off military conflict. This gave Ohio the time to leverage the power of their Congressional delegation, an option a mere territory could not exercise. “Ohio could also count on cooperation from Indiana and Illinois delegates concerned about the implications of Michigan’s claims for their own boundaries.” This coalition made Michigan’s accession to the Ohio claims a precondition for Michigan statehood. Further, Michiganders had no legal recourse, since as a territory they had no standing before the United States Supreme Court. They could only fall back on the dubious argument that the Ordinance should be equivalent to the Constitution as the “unchangeable and fundamental law” of the territories. Ohioans countered that Congress had reviewed the Ohio state constitution prior to admitting the territory into the Union, and that constitution set the northern border to encompass Toledo. Needless to say, the Congressional delegates from the Ohio-Indiana-Illinois bloc concurred. This argument, and this coalition, enabled Ohioans to get the border they wanted without recourse to any claim that they were “nullifying” the authority of the federal government. Congress somewhat lamely compensated Michigan for its defeat by awarding it what is now known as the “Upper Peninsula”—cold comfort, in both the political and climatic sense. As one Michigan newspaper editor put it, we have given up the valuable southern boundary for a land “fit only for the habitation of white bears, frogs, and tortoises.” Fortunately, Michiganders were sensible folk, reasoning that “the many advantages of statehood outweighed the loss of a few townships.” 

Although the Northwest Ordinance lost its real-world authority to Congress and to the states, it endured as “eloquent testimony to the nearly universal support for the constitutional ideal that had guided the American territorial system since its founding,” including the rightful movement of a United States territory to statehood and the Constitutional rights citizens would enjoy once their territories became states, with the recognition that slavery was an institution unfit for inclusion in any of the states formed from the original Northwest Territory. Michigan achieved statehood in 1837, Wisconsin in 1848, as slave-free states. 

Nonetheless, as slavery became the central political dispute in the United States, it became a topic of dispute even within the five Territory states. The anti-slavery clause itself had been added to the Ordinance at the proverbial last minute, by Massachusetts delegate Nathan Dane, who used language nearly identical to that proposed by Rufus King, in his failed attempt to insert such language in the 1785 Land Ordinance. There was no opposition from southern Congressmen, “the overwhelming majority in Congress”; interested entirely in linking the future states to their states by trade, they “unanimously voted to prohibit slavery in the Northwest.” Southerners also thought geopolitically, expecting the settlers “to provide a strategic buffer for the extended, exposed Kentucky frontier,” then threatened by Indians and the remaining British forts. 

The problem arose later on. Although the confederation of Indian nations and tribes organized by the Shawnee chief, Tecumseh, collapsed with his death during the War of 1812, it did retard American settlement in the intervening years. Could the Northwest compete with other territories without slavery? In Ohio, moral opposition prevailed, although one prominent politician, John C. Macan, did anticipate the ‘popular sovereignty’ arguments of future Illinois senator Stephen A. Douglas. Even then, southern Illinois favored the repeal of the slavery exclusion clause; that part of the state would provide much of the support for Douglas’s future campaigns. Both southern Illinois and Indiana were settled in large measure by persons from the slave states; advocates for slave importation argued that “the Ordinance’s authority was contingent, not perpetual,” depending upon “the present will of the contracting parties.” “When the new states drafted their own constitutions, the United States could no longer claim authority under the ordinance to insist on the compacts without degrading the new states to a level of inequality.” These claims went nowhere in the courts, so in 1805, pro-slavers in Indiana, including territorial governor and future U. S. president William Henry Harrison, re-labeled slaves as “servants,” passing a state law titled “An Act concerning the introduction of Negroes and Mulattoes into this Territory.” Only the influx of settlers from free states undermined the Harrisonians and reversed their policy; arguing (as Gouverneur Morris and James Madison had done, a generation earlier) that slavery was antithetical both to natural justice and republicanism, anti-slavery Indianans repealed the Act in 1810. 

In 1820s Illinois, “the slavery question emerged full-blown” in a struggle over whether to call a new state constitutional convention. Governor Edward Coles was anti-slavery but the pro-slavers, emboldened by Missouri’s defiance of Congress in refusing to expunge a clause in its constitution that prohibited the immigration of free blacks, pressed the ‘popular sovereignty’ argument with renewed intensity. While anti-slavery advocates cited the Northwest Ordinance as “a source of moral obligation” that “epitomized the wisdom and foresight of the Founding Fathers”—a “kind of higher law, a guide to right action”—the pro-slavery side appealed to frustration over the relatively slow rate of settlement in the Ordinance territories, in comparison to Kentucky and Tennessee, which had been admitted to the Union a generation earlier. More, “hard times in the aftermath of the 1819 crash emphasized the need for new men, new money, and new crops.” Neither side attempted to ascribe constitutional status to the Ordinance. Nonetheless, anti-slavery citizens won the day, although the arguments on both sides would be reprised thirty years later by Senator Douglas and Mr. Lincoln—the latter with considerably more logical coherence than his predecessors had mustered, basing his claim on deduction from the first principles of the Declaration of Independence. For their part, pro-slavers found their most important ally in U. S. Supreme Court Chief Justice Roger Taney, who not only affirmed that the Ordinance had no Constitutional status in Strader v. Graham (1850) but eventually (and infamously) denied that the Declaration principles had any validity at all. 

As we know, the matter proved too contentious for peaceful resolution.

Note

1. Montesquieu: The Spirit of the Laws, Part II, Book 11, Chapter 19.