An Organic Law Theory of the Fourteenth Amendment: The Northwest
Ordinance as the Source of Rights, Privileges, and Immunities
Matthew Jon Hegreness Yale University - Law School June 2, 2011
Yale Law Journal, Vol. 120, No. 7, 2011 Since the ratification
of the Fourteenth Amendment in 1868, judges and scholars have
struggled to coherently identify the rights, privileges, and
immunities that no state should abridge. Debates over the ambit
of the Fourteenth Amendment, however, have consistently
overlooked a crucial source that defines the fundamental civil
liberties of American citizens. The Northwest Ordinance of 1787
contains in its Articles of Compact a set of rights that
constituted the organic law – the fundamental law – of the
United States. Rather than limiting federal power like the Bill
of Rights, the Northwest Ordinance enumerates those rights that
no state shall abridge. Not only should these rights qualify for
protection under the Due Process Clause of the Fourteenth
Amendment, but they also give sub