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Copyright (c) 2000 Kentucky College of Law
Kentucky Law Journal

NOTE: Religion, Establishment, and the Northwest Ordinance: A Closer Look at anAccommodationist Argument

Spring 2000 / 2001

89 Ky. L.J. 743


By Thomas Nathan Peters*


Scholarly interpreters of the Establishment Clause fall generally into twocamps: separationists who claim the Establishment Clause bars the federal governmentfrom legislating religion 1 and accommodationists who claim the Establishment Clause bars only the preferential treatment of religious groups. 2 While scholars in both camps make appeals to the text and legislative history of the EstablishmentClause, 3 much of the accommodationist argument is focused on the claim that,in the decades following the adoption of the Constitution, the federal governmentacted inconsistently with the separationist understanding of the First Amendment. Examples of such supposed accommodation include the establishment of chaplains for Congress 4 and the military, 5 presidential declarations of days of prayer and Thanksgiving, 6 land grants to Christian missionaries working in the Indian territories, 7 and, notably, certain provisions of the Land Ordinance of 1787, more commonly known as the Northwest Ordinance. 8

Enacted by the last Congress to sit under the Articles of Confedera-tion, the Northwest Ordinance created a temporary government for the Northwest Territory, a vast swath of land extending from the Great Lakes to the Ohio River ceded to the federal government by the states at the end of the Revolutionary War. 9 As the first "constitution" for the Territory, 10 the Ordinance is famous for its guarantees of religious n11ad civil 12 liberties, its promotion of goodwill toward NativeAmericans, 13 and its prohibition of slavery. 14 Equally famous isthe Ordinance's framework for territorial self-government 15 and its mechanisms for dividing the territory ...
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