Christian R. Burset (Notre Dame Law School) has posted The Founders' Common-Law Empire (35 Yale J. of L. & the Humanties 419 (2024)) (19 pages) on SSRN. Here is the abstract:
The Northwest Ordinance of 1787 once had a sure spot in our constitutional canon. But most historians now take a dimmer view. In their telling, the Ordinance not only dispossessed Natives but also subjected white residents of the Old Northwest to the sway of an eastern metropole—thus reprising the very style of British imperialism that Americans had purported to reject in 1776.
Our characterization of the Northwest Ordinance has practical implications. As the legal academy has now come to remember, the United States controls several overseas territories, including American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. Each has a distinctive status, but they are all colonies, guaranteed neither statehood nor independence, and their inhabitants lack many rights enjoyed by other Americans. In the early twentieth century, the Supreme Court endorsed this arrangement in a series of decisions known as the Insular Cases. Critics of those cases have cited the Northwest Ordinance as evidence of their infirmity. According to those critics, the Ordinance of 1787 represents the only authentic model of American empire: equal laws during a brief period of territorial rule, followed by a path to statehood. But if the revisionists are right and the United States has always treated its territories like European colonies, then that historical critique lacks bite.
With that backdrop in mind, this Essay offers a reappraisal of the Northwest Ordinance, arguing that it embodied a distinctive imperial vision that differed both from its British predecessor and from its post-1898 successor. That vision emphasized not only statehood but also a particular approach to pre-statehood governance. The key to understanding it lies in one of the Ordinance’s least-studied provisions: that the “French and Canadian inhabitants” of Illinois might retain “their laws and customs now in force among them, relative to the descent and conveyance, of property.” By explaining that obscure phrase, this Essay illuminates the kind of empire that the Ordinance was meant to build—and, perhaps, suggests some new ways to think about the American empire today.
Posted at 6:18 AM