The Last American Establishment: Massachusetts, 1780-1833

Abstract

This chapter surveys the arguments for and against religious establishment and religious freedom that informed the Massachusetts Constitution of 1780 and the subsequent amendments of 1821 and 1833. Most preachers, politicians, and citizens during this period agreed that religion was an essential source of morality, and that the Constitution should respect and encourage diverse religious beliefs and practices, at least among Protestants. But controversial issues including religious test oaths, church membership rules, and the use of taxes to support Congregationalist Churches created sharp political divisions. In 1833, the Eleventh Amendment to the Massachusetts Constitution moved away from religious establishment. It made church membership and funding entirely voluntary; granted all religious societies the right to hire their own clergy, to build their own churches, and to manage their own membership rolls; promised equal protection of the law to believers of all sects and non-believers, alike; and ensured that individual members of those sects could exit without incurring liability for contracts subsequently made by the other members of that sect.

Full text

1
263 LH
Draft
Published as “The Last American Establishment: Massachusetts, 1780-1833,” in Carl
H. Esbeck and Jonathan Den Hartog, eds., Religious Dissent and Disestablishment:
Church-State Relations in the New American States, 1776-1833 (Columbia, MO:
University of Missouri Press, 2019), 399-424 (with Justin Latterell)
The Last American Establishment: Massachusetts, 1780-1833
John Witte, Jr. and Justin Latterell
Abstract
This chapter surveys the arguments for and against religious establishment and
religious freedom that informed the Massachusetts Constitution of 1780 and the
subsequent amendments of 1821 and 1833. Most preachers, politicians, and citizens
during this period agreed that religion was an essential source of morality, and that the
Constitution should respect and encourage diverse religious beliefs and practices, at
least among Protestants. But controversial issues including religious test oaths,
church membership rules, and the use of taxes to support Congregationalist Churches
created sharp political divisions. In 1833, the Eleventh Amendment to the
Massachusetts Constitution moved away from religious establishment. It made church
membership and funding entirely voluntary; granted all religious societies the right to
hire their own clergy, to build their own churches, and to manage their own
membership rolls; promised equal protection of the law to believers of all sects and
non-believers, alike; and ensured that individual members of those sects could exit
without incurring liability for contracts subsequently made by the other members of that
sect.
Keywords: Massachusetts; 1780 Constitution; religious liberty; liberty of
conscience; Puritanism; Congregationalism; John Adams; establishment of religion;
religious test oaths; tithes; moral establishment; covenant; disestablishment of religion
The 1780 Constitution of Massachusetts is the oldest continuously operating
written constitution in the world.
1
Its principal drafter was John Adams – the “atlas” and
“colossus” of the Revolution, America’s future second president, and already a
formidable lawyer and legal historian.
2
In both Massachusetts law and federal law,
Adams sought to balance religious liberty with religious establishment while ensuring
that “all men of all religions consistent with morals and property ... enjoy equal liberty

2
[and] security of property ... and an equal chance for honors and power.” The 1780
Constitution reflected Adams’ belief that, in order to improve society, “we should begin
by setting conscience free.”
3
At the same time, the 1780 Constitution instituted
Adams’ vision of a “most mild and equitable establishment of religion”
4
featuring
Puritan covenant ceremonies, Protestant religious test oaths, and special protections,
privileges, and funding for preferred forms of Christian worship, education, morality,
and charity.
Adams’ formulation sought to balance the demands of the Puritan
Congregationalists who favored establishment with the demands of swelling groups of
Baptists, Methodists, Catholics, and freethinkers who wanted the religious freedom
guarantees available in other states. It mustered just enough support to win ratification
in 1780, but the balance fell apart in subsequent decades as Congregationalists
fractured into Unitarian and Trinitarian factions, and religious pluralism grew. While the
Constitution retained ceremonial and moral features of the colonial establishment,
amendments in 1821 and 1833 rejected religious test oaths and religious taxes.
5
This chapter surveys the arguments for and against religious establishment and
religious freedom that informed the Constitution of 1780 and the amendments of 1821
and 1833. The coalitions of politicians, preachers, and citizens making these
arguments changed between 1778 (when the first constitutional draft failed) and 1833
(when religious taxes were repealed). The logic of their arguments, however, remained
relatively stable. Virtually everyone agreed that religion was an essential source of
public and private morality, and that the Constitution should encourage diverse
religious beliefs and practices, at least among Protestants. Nearly everyone also
agreed that the laws should equally respect and reflect the religious sentiments of all
citizens. What was controversial was how to achieve these goals. Did the integrity of
governmental institutions require public officials to swear religious test oaths of office?
Did religious liberty extend equally to all churches and creeds – including Catholics
and non-Christians who remained deeply suspect? Did the moral functions and vitality
of religion require tax-funded churches and clergy, or would religion flourish better if
left on its own? Such questions divided Massachusetts lawmakers along political,
regional, and religious lines, and ultimately led to a new consensus about how best to
order church-state relations.
I.
The Massachusetts Constitution of 1780 is a document of nearly 12,000 words.
It has a preamble and two main parts. Part One is a Declaration of Rights in thirty
articles. Part Two is a Frame of Government in six chapters. Religion figured in ten of
these provisions – the Preamble, Articles I, II, III, VII, and XVIII of the Declaration of
Rights, and Chapters I, II, V and VI of the Frame of Government. These provisions
reflect the long history of Congregational establishment going back to the Mayflower
Compact of 1620, and the growing challenges by religious dissenters.

3
The 1780 Constitution replaced the 1691 Provincial Charter, issued by the
British Crown to govern the Massachusetts colony. In 1778, a constitutional convention
produced a draft constitution, but the people rejected it, in no small part because it
lacked conventional civil and religious freedom provisions.
6
On February 20, 1779, the
Massachusetts House of Representatives called for a new constitutional convention,
and “lawfully warned” the “Selectmen of the several Towns” to deliberate their
concerns and instruct their delegates.
7
Religion figured prominently in these deliberations and instructions, with some
townships calling for complete religious freedom, others for continued religious
establishment. The delegate of Pittsfield, for example, came armed with a provision
guaranteeing wide religious freedom:
[E]very man has an unalienable right to enjoy his own opinion in matters
of religion, and to worship God in that manner that is agreeable to his own
sentiments without any control whatsoever, and that no particular mode or
sect of religion ought to be established but that every one be protected in
the peaceable enjoyment of his religious persuasion and way of worship.
8
By contrast, the Township of Sandisfield instructed its delegate to seek protections for
the local Protestant establishment, along with guarantees of toleration for other
Christians:
[Y]ou will Endeavour in the forming of the Constitution that the Free
Exercise of religious principles or Profession, worship and Liberty of
Conscience shall be for ever Secured to all Denominations of Protestants
– and Protestant Dis[s]enters of all Denominations within the State, without
any Compulsion whatever. Always allowing the Legislative Body of this
State the Power of Toleration to other Denominations of Christians from
time to time as they Shall see Cause, at the same time, Reserving to our
Selves, the Right of Instructions to our Representatives Respecting Said
Toleration as well as in other Cases.
9
Delegates could also turn to scores of sermons and pamphlets that circulated in
Massachusetts in the later 1770s.
10
The oft-printed pamphlet Worcestriensis, Number
IV, for example, defended a generous toleration of all religions and a gentle
establishment of the Protestant religion. The pamphlet demanded that “no part of the
community shall be permitted to perplex and harass the other for any supposed
heresy, but that each individual shall be allowed to have and enjoy, profess and
maintain his own system of religion, provided it does not issue in overt acts of treason
undermining the peace and good order of society. To allow one part of a society to
lord it over the faith and consciences of the other, in religious matters, is the ready way
to set the whole community together by the ears.”
11
State officials could not, therefore,
command citizens to conform to their preferred religion, or subject nonconformists “to

4
pains, penalties, and disabilities” on account of their religious beliefs. But state officials
could “give preference to that profession of religion which they take to be true.”
The establishment contended for … must proceed only from the benign
principles of the legislature from an encouragement of the General
Principles of religion and morality, recommending free inquiry and
examination of the doctrine said to be divine; using all possible and lawful
means to enable its citizens to discover the truth, and to entertain good
and rational sentiments, and taking mild and parental measures to bring
about the design; these are the most probable means of bringing about
the establishment of religion.
12
Under this view, the state could extract religious oaths from public office-holders, “for
there is no stronger cement of society.” The state could punish profanity, blasphemy,
and debauchery, all of which “strike a fatal blow at the root of good regulation, and
well-being of the state.” And the state could provide “able and learned teachers
[ministers] to instruct the people in the knowledge of what they deem the truth,
maintaining them by the public money, though at the same time they have no right in
the least degree to endeavor the depression of professions of religious
denomination.”
13
Phillips Payson, an influential Congregationalist minister, recommended a firm
establishment and warned against the “dangerous innovations” pressed by dissenters.
To be sure, Payson wrote, “religious or spiritual liberty must be accounted the greatest
happiness of man, considered in a private capacity.”
14
But, he insisted:
[R]eligion, both in rulers and people [is] ... of the highest importance to ...
civil society and government, ... as it keeps alive the best sense of moral
obligation, a matter of such extensive utility, especially in respect to an
oath [of office], which is one of the principal instruments of government.
The fear and reverence of God, and the terrors of eternity, are the most
powerful restraints upon the minds of men; and hence it is of special
importance in a free government, the spirit of which being always friendly
to the sacred rights of conscience, it will hold up the gospel as the great
rule of faith and practice. Established modes and usages in religion,
more especially the stated public worship of God, so generally form the
principles and manners of a people, that changes or alterations in these,
especially when nearly conformed to the spirit and simplicity of the
Gospel, may very well be esteemed very dangerous experiments in
government. … Let the restraints of religion once be broken down, as
they infallibly would be by leaving the subject of public worship to the
humours of the multitude, and we might well defy all human wisdom and
power to support and preserve order and government in the State.
15

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Religion, under this view, was too important to leave to chance and individual initiative.
Supporting public worship – while also protecting the individual conscience – was an
essential prerogative of the state.
By marked contrast, Isaac Backus, the most able Baptist advocate of the day,
called for the end of all religious establishments. Backus charged that Massachusetts
authorities were “assuming a power to govern religion, rather than being governed by
it.” “I am as sensible of the importance of religion and of the utility of it to human
society, as Mr. Payson,” Backus wrote. “And I concur with him that the fear and
reverence of God and the terrors of eternity are the most powerful restraints upon the
minds of men. But I am so far from thinking with him that these restraints would be
broken down if equal religious liberty was established.” Look at the long history of
Christian establishment, Backus argued. It has led not to pure religion; instead
“tyranny, simony, and robbery came to be introduced and to be practiced under the
Christian name.” Look at Boston, which has had no religious establishment of late;
there religion, state, and society all flourish without fail. Look at the principles of the
Revolution: “all America is up in arms against taxation without representation.” Just as
certainly as Americans were not represented in the British Parliament, so religious
dissenters are not represented among the established civil authorities, yet they are still
subject to their religious taxes and regulations. Look at the Bible: “God has expressly
armed the magistrate with the sword to punish such as work ill to their neighbors, and
his faithfulness in that work and our obedience to such authority, is enforced [by the
Bible]. But it is evident that the sword is excluded from the kingdom of the Redeemer.
... [I]t is impossible to blend church and state without violating our Lord's commands to
both.”
16
For all of these reasons, Backus and his fellow Baptist dissenters demanded
that religion remain an entirely free and voluntary matter.
II.
Such were some of the discordant sentiments on religious establishment and
religious freedom on the eve of the second constitutional convention. It was clear that
the Congregationalists would insist on some form of religious establishment. As John
Adams put it: “We might as soon expect a change in the solar system as to expect
they would give up their establishment.”
17
It was equally clear that religious dissenters
would insist on disestablishment and free exercise of religion – particularly since other
states had granted such liberties. Some via media between these competing
perspectives was needed.
On September 1, 1779, 293 delegates gathered in Boston.
18
In the Convention
were the leading lights of Massachusetts – 39 merchants, 31 lawyers, 22 farmers, 21
clergy, 18 physicians, and 18 magistrates.
19
Most delegates were Congregationalists.
Five delegates were Baptists. A few were suspected to be Quaker, Anglican, or
Catholic.
20

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On September 4, the Convention elected a committee of 27 members – later
augmented by four – to prepare a declaration of rights and frame of government. This
committee, in turn, delegated the drafting to a three-member subcommittee of James
Bowdoin, Samuel Adams, and John Adams, with John Adams selected to push the
pen for the subcommittee. He completed a draft by mid-October. First the three-
member subcommittee, then the full drafting committee made modest alterations to
Adams’ draft. The committee submitted its draft to the Convention on October 28,
1779.
21
The Convention debated the draft until November 12. Adams participated to
this point, but set sail thereafter for France. The Convention completed its deliberations
between January 27 and March 1, 1780, now without Adams.
A Limited Freedom of Religion. The Constitution included several religious
freedom provisions. Article I of the Declaration of Rights provided: “All men are born
free and equal, and have certain natural, essential, and unalienable rights” of life,
liberty, property, and pursuit of happiness.
22
Article II tendered more specific
protections: “It is the right as well as the duty of all men in society, publickly, and at
stated seasons to worship the SUPREME BEING, the great Creator and preserver of
the Universe. No subject shall be hurt, molested, or restrained, in his person, Liberty,
or Estate, for worshipping GOD in the manner and season most agreeable to the
Dictates of his own conscience, or for his religious profession or sentiments; provided
he doth not Disturb the public peace, or obstruct others in their religious Worship.”
Article III tacitly acknowledged the right to form religious associations, to select one's
own minister, and to pay tithes directly to one’s own church. And Chapter VI on the
Frame of Government exempted Quakers from the swearing of oaths because of their
scruples of “conscience.”
Yet the 1780 Constitution imposed several limits on religion as well. Religious
worship was not just a right, but also a duty in Article II. Indeed, Adams’ original draft
spoke only of “the duty” to worship. Only after other delegates objected was it
amended to guarantee “the right as well as the duty of all men” to worship. Moreover,
while a person could worship in “the manner and season most agreeable to the
Dictates of his own conscience,” such worship was to be directed to “the SUPREME
BEING, the great Creator and preserver of the Universe,” leaving non-theists
unprotected. Moreover, worship, per Article III, was to include “conscientious and
convenient” “attendance upon the instructions of ministers” “at stated times and
seasons” as well as payment of tithes.
Religious freedom was more restricted for those in political office. In Chapter I of
the Frame of Government, Adams stipulated that no person was eligible to serve in the
House of Representatives “unless he be of the Christian religion.” The Convention
struck this provision, but it left untouched Chapter II, where Adams imposed the same
religious conditions upon the offices of Governor and Lieutenant Governor.
23
In the
same spirit, Adams proposed in Chapter VI that all state officials and appointees swear
the same religious test oath “that I believe and profess the Christian religion and have
a firm persuasion of its truth.” The Convention insisted on a slightly reworded oath for

7
elected executive and legislative officers, requiring all other officers to declare their
"true faith and allegiance to this Commonwealth.” After several delegates argued for a
specifically Protestant test oath, the convention added to both oaths a rather obvious
anti-Catholic provision, which Adams and others later protested without success: “I do
renounce and abjure all allegiance, subjection and obedience to ... every ... foreign
Power whatsoever: And that no foreign ... Prelate ... hath, or ought to have, any
jurisdiction, superiority, pre-eminence, authority, dispensing, or other power, in any
matter, civil, ecclesiastical or spiritual within this Commonwealth.”
24
Adams’ draft oath
had concluded “So help me God,” but then made a specific provision “that any person
who has conscientious scruples relative to taking oaths, may be admitted to make
solemn affirmation” by other means. After delegates protested that so generic an
exemption might be abused, the Convention restricted the exemption to Quakers.
25
The Establishment of Religion. Not only was religious liberty narrowly drawn
in the 1780 Constitution, it was further limited by religious establishment norms. The
establishment had ceremonial, moral, and institutional features. The ceremonial and
moral features reflected a general consensus about the role of religion in both
government and society, and these provisions passed with little controversy. The
institutional features of establishment, especially the compulsory payment of religious
taxes, were contested in the Convention and ratification debates.
Ceremonial Establishment. The ceremonial elements of the establishment
were most evident in the Preamble’s declaration that “the whole people covenants with
each Citizen, and each Citizen with the whole people, that all shall be governed by
certain Laws for the Common good.”
[T]he people of Massachusetts, acknowledging, with grateful hearts, the
goodness of the Great Legislator of the Universe, in affording us, in the
course of his Providence, an opportunity, deliberately and peaceably,
without fraud, violence, or surprize, o[f] entering into an Original, explicit,
and Solemn Compact with each other; and of forming a New Constitution
of Civil Government for ourselves and Posterity; and devoutly imploring
His direction in so interesting a Design, DO agree upon, ordain and
establish the following Declaration of Rights and Frame of Government.
This was classic covenant liturgical language, rooted in New England tradition going
back to the Mayflower Compact of 1620.
26
The nature of the constitution was clear; it
was a “solemn” covenant or compact with God invoked as witness, judge, and
participant. The purposes of the covenant were clearly set forth: to create and confirm
the identity of the “peoples” and “citizens of Massachusetts,” and their devotion to the
“common good,” and to the rights of the people and the powers of the government.
The ethic of the covenant was also defined – featuring “gratitude,” “peacefulness,”
integrity (“without fraud, violence, or surprize”), and prayerful devotion (“devoutly
imploring His direction in so interesting a Design”).

8
Covenant rituals also informed the religious test oaths for public servants to be
sworn before the people and their representatives in full assembly: “I, A.B, do declare,
that I believe the christian religion, and have a firm persuasion of its truth ... and I do
swear, that I will bear true faith and allegiance to the said Commonwealth ... so help
me God.” This language reflected the conventional view that oaths functioned as “a
cement of society” and as “one of the principal instruments of government.” Oaths
were not merely symbolic, but a tangible confirmation of the covenant between God,
the people, and the rulers, with solemn duties undergirded by “the fear and reverence
of God, and the terrors of eternity.”
27
Beyond the preamble and test oaths, the Constitution had other ceremonial
elements of a religious establishment. God is invoked, by name or pseudonym (e.g.,
“Great Legislator of the Universe” and “Supreme Being”) a dozen times. References to
the “common good” or “public good” appear four more times, as do two further
references to divine “blessings” and “privileges.” With the exception of the oath
requirement, these provisions were passed without comment, and still remain in place
today.
Moral Establishment. The 1780 Constitution established not only covenant
ceremonies but also Christian morals. Article II of the Declaration of Rights, we saw,
rendered religious worship both a right and a duty. Article III followed with the reason
for this duty: “the happiness of a people, and good order and preservation of civil
government, essentially depend upon piety, religion, and morality; and ... these cannot
be generally diffused through a Community, but by the institution of publick Worship of
God, and of public instructions in piety, religion, and morality.” Religion was closely
bound to morality, the Constitution confirmed, and both were essential to happiness
and social order.
Moral considerations also animated the constitutional provisions on education.
Chapter V of the Frame of Government provided: “Wisdom, and knowledge, as well as
virtue, diffused generally among the body of the people, [are] necessary for the
preservation of their rights and liberties.” Officials were thus called “to cherish the
interests of literature and sciences, and all seminaries of them; ... to encourage private
societies and public institutions, rewards and immunities, for the promotion of
[education] ...; to countenance and inculcate the principles of humanity and general
benevolence, public and private charity, industry and frugality, honesty and punctuality
in their dealings, sincerity, good humour, and all social affections, and generous
sentiments among the people.” The same Chapter V confirmed and commended the
incorporation of Harvard College, since “the encouragement of arts and sciences, and
all good literature, tends to the honor of God, the advantage of the christian religion,
and the great benefit of this and other United States of America.”
28
None of these
provisions establishing a public religious morality triggered much debate during the
constitutional convention, and most were not amended.

9
Institutional Establishment. The foregoing consensus on ceremonial and
moral matters stood in marked contrast to the controversies over Article III’s religious
taxes “for the support and maintenance of public protestant teachers of piety, religion
and morality.” This provision continued colonial patterns. A Massachusetts colonial law
of 1692 had effectively blended church and state for purposes of taxation.
29
The law
designated each of the 290 odd territories within the colony as both a “parish” and a
“township” under the authority of one city council. In townships with more than one
church, the multiple “parishes” were called “precincts,” and each of these likewise was
subject to the same council's authority. Each town/parish was required to have at least
one Congregationalist “teacher of religion and morality.” This minister would lead the
local community in worship, and often in education and charity as well. The community
was required to provide the minister with a salary, sanctuary, and parsonage. Funds to
do so came from religious taxes usually called tithes, sometimes called church, parish,
or religious rates. These were collected from all persons in the township, who were by
definition also members of the parish, regardless of which church they attended.
30
This system worked well enough when all persons within a township or parish
were also active members of the established Congregational church. It did not work for
persons who were religiously inactive, or were members of a non-Congregationalist
church, whether Baptist, Quaker, Anglican, Catholic, or Free Church. As the number of
dissenting churches grew, so did the protests to taxes to support Congregationalist
ministers and churches. During the eighteenth century, colonial courts eventually
carved out exceptions for some religious dissenters, allowing them to direct their tithes
to support their own ministers and churches. Such dissenters, however, were required
to register each church as a separate religious society, and to prove their faithful
attendance at the same. Not all dissenting churches were able or willing to meet the
registration requirements, and not all townships cooperated in granting the
registrations or tithe exemptions.
31
If the dissenting church was too small to have its
own full-time minister, the township denied them registration. If the dissenting church
was conscientiously opposed to incorporation or registration, as were Baptists after
1773, their members were not exempt from taxation. If a member of a registered
dissenting church was lax in attending worship, he was denied exemption from tithe
payments. And if a town treasurer was pressed for revenue, or prejudiced against a
certain group, he could refuse to give dissenting ministers their share of the tithes. In
many cases, the Massachusetts courts proved churlish in granting standing, let alone
relief, to individuals who protested such inequities.
32
It was this century-long system of religious taxes that the 1780 Massachusetts
Constitution aimed to perpetuate in Article III. The article proved so controversial that it
took up more than a third of the Convention’s debates.
33
The initial draft of Article III,
submitted to the Convention on October 28, 1779, stated:
Good morals, being necessary for the preservation of civil society; and
the knowledge and belief of the being of GOD, His providential government
of the world, and of a future state of rewards and punishment, being the

10
only true foundation of morality, the legislature hath, therefore, a right, and
ought to provide, at the expense of the subject, if necessary, a suitable
support for the public worship of GOD, and of the teachers of religion and
morals; and to enjoin upon all the subjects an attendance upon these
instructions, at stated times and seasons; provided there be any such
teacher, on whose ministry they can conscientiously attend.
All monies, paid by the subject of the public worship, and of the
instructors in religion and morals, shall, if he requires it, be uniformly
applied to the support of the teacher or teachers of his own religious
denomination, provided there be any on whose instructions he attends;
otherwise it may be paid towards the support of the teacher or teachers of
the parish or precinct in which the said moneys are raised.
34
The first paragraph of this draft, stipulating the necessity and utility of public worship
and religious instruction, was not particularly controversial. The second paragraph,
however, mandating the collection of religious tithes to support the same, was a matter
of great controversy. The initial reaction to the draft was so heated that delegates
voted to put off further debate for a three-day period starting November 1. They also
voted to suspend the rule that no delegate could speak twice to the same issue without
special privilege from the chair. Rancorous debate over the draft Article broke out
immediately when the floor was opened on November 1 – some condemning the
provision as “too pale an approximation of a proper establishment,” others calling for
abolition of the Article altogether, and still others decrying the insufficient recognition of
the concessions that dissenters had arduously won over the years.
With the Convention deadlocked on November 3, the delegates appointed a
seven-member ad hoc committee, chaired by a Baptist delegate, Rev. Noah Alden of
Bellingham, to redraft Article III.
35
On November 6, this committee put a new draft
before the Convention that spelled out the religious tax system in more detail. This
draft was debated intermittently for the next four days, and modest changes were
approved.
36
On November 10, a motion to abolish the Article altogether was defeated.
A slightly amended committee draft was passed the following day. It stated in full:
As the happiness of a people, and good order and preservation of civil
government, essentially depend upon piety, religion, and morality; and as
these cannot be generally diffused through a Community, but by the
institution of publick Worship of God, and of public instructions in piety,
religion, and morality: Therefore, to promote the happiness and to secure
the good order and preservation of their government, the people of this
Commonwealth have a right to invest their legislature with power to
authorize and require, and their Legislature shall, from time to time,
authorize and require, the several Towns, Parishes precincts and other
bodies politic, or religious societies, to make suitable provision, at their
own Expence, for the institution of the Public worship of GOD, and for the

11
support and maintenance of public protestant teachers of piety, religion
and morality, in all causes which provision shall not be made Voluntarily.
– And the people of this Commonwealth have also a right to, and do, invest
their legislature with authority to enjoin upon all the Subjects an attendance
upon the instructions of the public teachers aforesaid, at stated times and
seasons, if there be any on whose instructions they can Conscientiously
and conveniently attend. – PROVIDED, notwithstanding, that the several
towns, parishes, precincts, and other bodies politic, or religious societies,
shall, at times, have the exclusive right of electing their public Teachers,
and of contracting with them for their support and maintenance. – And all
monies, paid by the Subject of the support of the public teacher or teachers
of his own religious sect or denomination, provided there be any on whose
institution he attends; otherwise it may be paid towards the support of the
teacher or teachers of the parish or precinct in which the said monies are
raised – And every denomina[t]ion of christians, demeaning themselves
peaceably, and as good Subjects of the Commonwealth, shall be equally
under the protection of the Law: And no subordination of any one sect or
denomination to another shall ever be established by law.
37
This final text made some concessions to dissenters.
38
The tithe collection system was
now to be "voluntary" and local rather than state-wide – allowing Boston and, later,
other townships to forgo mandatory tithing, with churches securing their own support
from their members through voluntary tithes, tuition, or pew rents. Religious societies
could contract individually with their own minister – allowing them to pay their tithes
directly to their chosen minister rather than to a potentially capricious town treasurer.
Local townships and religious societies could now participate in the selection of their
parish minister, rather than be automatically saddled with a Congregationalist minister.
In later years, this provision “had some unexpected results. Several of the towns and
parishes, which thereby were given the exclusive right to elect their ministers ... were
converted to Unitarianism and settled Unitarian pastors over old Calvinist churches.”
39
Although it notably acknowledged the equality of diverse religious groups before
the law, the final draft of Article III largely retained the traditional tithing system and
jettisoned some of the hard-fought concessions that Baptists, Anglicans, and other
dissenters had secured through litigation. As Samuel Eliot Morison wrote: “Article III
was even less liberal than [the colonial] system, for instead of exempting members of
dissenting sects from religious taxation, it merely gave them the privilege of paying
their taxes to their own pastors. Unbelievers, non-church goers, and dissenting
minorities too small to maintain a minister had to contribute to Congregational worship.
The whole Article was so loosely worded as to defeat the purpose of the fifth
paragraph [guaranteeing the equality of all sects and denominations]. Every new
denomination that entered the Commonwealth after 1780, notably the Universalists
and Methodists, had to wage a long and expensive lawsuit to obtain recognition as a
religious sect. ... [A] subordination of sects existed in fact.”
40

12
III.
On March 2, 1780, the Convention put the draft constitution before the people
for ratification. The Convention also provided a committee report that explained the
draft, including the provisions juxtaposing religious freedom and religious
establishment:
[W]e have, with as much Precision as we were capable of, provided for the
free exercise of the Rights of Conscience: We are very sensible that our
Constituents hold those Rights infinitely more valuable than all others; and
we flatter ourselves, that while we have considered Morality and Public
Worship of GOD, as important to the happiness of Society, we have
sufficiently guarded the rights of Conscience from every possible
infringement. This Article underwent long debates, and took Time in
proportion to its importance; and we feel ourselves peculiarly happy in
being able to inform you, that the debates were managed by persons of
various denominations, it was finally agreed upon with much more
unanimity than usually takes place in disquisitions of this Nature. We wish
you to consider the Subject with Candor, and Attention. Surely it would be
an affront to the People of Massachusetts-Bay to labour to convince them,
that the Honor and Happiness of a People depend upon Morality; and that
the Public Worship of GOD has a tendency to inculcate the Principles
thereof, as well as to preserve a people from forsaking Civilization, and
falling into a state of Savage barbarity.
41
The people gave the draft their full “Candor and Attention” during the ratification
process. Of the 290 eligible townships, 188 sent in returns that have survived, a
number of them criticizing the religion provisions.
42
One group charged that Article III's
establishment of religion contradicted the religious liberties set out in Article II.
43
The
return of the Town of Dartmouth put it thus:
It appears doubtful in said Articles whether the Rights of Conscience are
sufficiently secured or not to those who are really desirous to, and do
attend publick Worship, and who are not limited to any particular outward
Teacher ... we humbly conceive it intirely out of the power of the legislature
to establish a way of Worship that shall be agreable to the Conceptions
and Convictions of the minds of the individuals, as it is a matter that solely
relates to and stands between God and the Soul before whose Tribunal all
must account each one for himself.
44
A second group of critics retorted that the happiness of a people and the good order
and preservation of civil government did not, as a matter of historical fact, depend
upon piety, religion, and morality.
45
The Return of the Town of Natick put it well:

13
When both antient History and modern authentik information concur to
evince that flourishing civil Governments have existed and do still exist
without the Civil Legislature's instituting the publick Christian worship of
God, and publick Instruction in piety and the Christian,– but that rather
wherever such institutions are fully [executed] by the civil authority have
taken place among a people instead of essentially promoting their
happiness and the good order and preservation of Civil Government, it has
We believe invariably promoted impiety, irreligion, hypocrisy, and many
other sore and oppressive evils.
46
A third group of critics acknowledged the public utility of piety, morality, and religion,
but thought that an establishment would jeopardize both religion and the state. The
Return of the Town of Petersham put it thus:
We grant that the Happiness of a People and the good Order and
preservation of Civil Government Greatly Depends upon Piety, Religion,
and Morality. But we Can by no Means Suppose that to Invest the
Legislature or any Body of men on Earth with a power absolutely to
Determine For others What are the proper Institutions of Divine Worship
and To appoint Days and seasons for such Worship With a power to
impose and Indow Religious Teachers and by penalties and punishments
to be able to Enforce an Attendance on such Publick Worship or to Extort
Property from any one for the Support of what they may Judge to be
publick Worship Can have a Tendency to promote true piety Religion or
Morality But the Reverse and that such a Power when and where Ever
Exercised has more or Less Been an Engine in the Hands of Tyrants for
the Destruction of the Lives Liberties and Properties of the People and that
Experience has abundantly Taught Mankind that these are Natural Rights
which ought Never to be Delegated and Can with the greatest propriety be
Exercised by Individuals and by every Religious Society of men.
47
A fourth group of critics believed that to institute even a mild establishment of religion
would lead to more odious forms. A pamphleteer named “Philanthropos” puts this
argument well:
Perhaps it will be said that the civil magistrate has a right to oblige the
people to support the ministers of the gospel, because the gospel ministry
is beneficial to society. [But if so] it will follow, by the same law, that he
may adopt any of the maxims of the religion of Christ into the civil
constitution, which he may judge will be beneficial to civil society ... if
magistrates may adopt any the least part of the religion of Christ into their
systems of civil government, that supposes magistrates to be judges what
parts shall be taken, and what left; power, then which nothing can be more
dangerous, to be lodged in the hands of weak and fallible men.
48

14
A fifth group of critics repeated Isaac Backus' earlier charge that Article III
constituted a species of taxation without representation. As the return of Ashby put it:
"Religeous Societys as such have no voice in Chusing the Legeslature, the
Legeslature therefore have no right to make law binding on them as such; every
religeous Society, as such, is intirely independent on any body politick, the Legeslature
having therefor no more right to make laws Binding on them, as such, then the Court of
Great Britton have to make Laws binding on the Independent states of America.”
Indeed, the Ashby Return commented later, “to invest their Legeslature with power [to]
make Laws that are binding on Religious Society ... is as much to say we will not have
Christ to reign over us[,] that the Laws of this Kingdom are not sufficient to govern us,
that the prosperity of this Kingdom is not equally important with the Kingdoms of this
world.”
49
A sixth group of critics argued that Article III's guarantee of equality of all
denominations contradicted the provisions on tax support for some denominations. If
“all religious sects or denominations peaceably demeaning themselves” are equal
before the law, why are some supported by taxes and others not? Why must religions
be incorporated by the state in order to receive taxes, when some religions do not
accept religious incorporation by the state? True religious liberty would leave the
“several religious societies of the Commonwealth, whether corporate or incorporate” to
their own peaceable devices. It would grant them “the right to elect their pastors or
religious teachers, to contract with them for their support, to raise money for erecting
and repairing houses for public worship, for the maintenance of religious instruction,
and for the payment of necessary expenses.”
50
Proponents of Article III responded harshly, accusing critics of religious bigotry
and chastising them for inviting moral decay under the guise of religious liberty. The
“ancient atrocities of the German Anabaptists were raked up” to discredit Backus and
his fellow Baptists, who were portrayed as “Disguised tories, British emissaries,
profane and licentious deists, avaricious worldlings, disaffected sectaries, and furious
blind bigots.”
51
The Baptists, however, were not alone in opposing Article III. Indeed, the critics
of Article III should have been numerically strong enough to block ratification. The
clerks kept close tallies on the votes for Article III, and they “fell some 600 votes short
of the necessary two-thirds majority for ratification” – with the popular vote in favor
standing at 8,865 to 6,225 or a little over 58 per cent.
52
Though the individual township
tallies were less closely kept for other provisions, it appears that Chapter II and VI,
requiring the Governor to be a Christian and profess his adherence to the same in an
oath, did not garner two-thirds support.
53
Nevertheless, delegates to the Convention –
out of ignorance of the exact vote tally, or perhaps indifference to the same given the
political pressure to succeed – treated the Constitution as fully ratified. On June 16,
1780, James Bowdoin, the President of the Convention, announced that the entire
Constitution had garnered the requisite two-thirds vote.

15
On October 25, 1780, the Constitution went into effect, the first day that the
General Court sat after ratification. Among the first acts of the General Court was a
politically expedient pledge of support for religious liberty: “Deeply impressed with a
sense of the importance of religion to the happiness of men in civil society to maintain
its purity and promote this efficacy, we shall protect professors of all denominations,
demeaning themselves peaceably and as good subjects of the Commonwealth, in the
free exercise of the rights of conscience.”
54
IV.
Massachusetts’ experiment with religious liberty and religious establishment
encountered numerous challenges over the next half-century. On the one hand, the
1780 Constitution – softened by a pair of “Religious Freedom Acts” passed in 1811
and 1824 – was “mild and equitable” enough for dissenting churches to grow in
number, membership, and influence. On the other hand, as some churches liberalized
and split along theological lines, and as Congregational churches themselves
splintered into Trinitarian and Unitarian factions, public support for the establishment
eroded.
55
New political coalitions took up old arguments to challenge the 1780
Constitution.
56
Article III was the main target. But dissenters also challenged other
aspects of the law – the laws and policies supporting traditional religious instruction at
Harvard College; the hiring practices for clergy in parish churches; the tests used by
courts and legislatures for dividing church property between schismatic factions; the
imposition of religious oaths and tests for public office; the compulsory church
attendance laws; and more. Between 1780 and 1833, citizens and legislators
winnowed down the state’s religious establishment, ultimately leading to final
disestablishment in 1833.
Constitutional Convention of 1821. The Constitutional Convention of 1820-
1821 was a critical step in this disestablishment process.
57
Initiated by a popular
referendum in 1820, the Convention addressed a wide range of constitutional issues
and initiatives – notably oaths and tests for public office, the leadership and religious
affiliation of Harvard College, and the provision of public funds for religious worship
under Article III.
58
A “capable and experienced body of legislators”
59
debated these
issues at length. Baptists – now flanked by a growing number of Methodists,
Universalists, Quakers, Episcopalians, and even a few Congregationalists
60
– again
led the effort to reform the state’s religious establishment laws. Support for the
establishment was wobbly, with many legislators admitting they were of two minds.
61
The Convention proposed fourteen amendments, four of which would have tweaked or
transformed constitutional provisions on religion.
62
However, the only amendments that
voters approved were those that repealed religious oaths and tests for public office.
The 1821 debates over religious oaths and tests echoed familiar themes.
Virtually everyone continued to affirm the value of religion as a foundation of personal
and political morality – something that was relevant for legislators tasked with
promoting the common good. But critics challenged these provisions on practical,

16
theological, and political grounds. James Prince of Boston, for example, emphasized
that the rights of conscience were “unalienable” and that religion was solely “a matter
between God and the individual.”
In forming or revising the social compact, let us then take heed, that we do
not insert or retain any principle which by possible construction may
interfere with, or abridge such sacred, such inestimable rights by an inquiry
into opinions for which man is only accountable to his God. Social duties
are between man and man. Religious duties are between God and the
individual. … Secondly – I hold that this act of injustice toward the
individual is neither politic nor expedient; first, because … it may deprive
society of talent and moral excellence, which should always be secured
and cherished as one of the best means of preserving the prosperity of the
Commonwealth; and secondly, while it may thus exclude men possessing
such useful and amiable qualification, yet it is no effectual safeguard
whereby to keep out ambitious, unprincipled men from office, or a seat in
the public councils. And, I moreover hold, that the cause of christianity
does not require such a qualification to support it. This religion is founded
on a rock and supported by a power which humanity cannot affect – it does
not want the secular arm to defend it – its divine origin, and its own intrinsic
merit, ever have been, and ever will be, its firmest support.
63
However, defenders of religious oaths and tests reminded the people of the
importance of having rulers who could affirm and maintain Christian beliefs and
practices in accordance with the founding covenant of the state. The Reverend Joseph
Tuckerman of Chelsea, for example, asked, “If our religion be from God, and if it be our
duty, by all means which are consistent with its spirit, to promote its progress, it is a
question on which we ought to pause, whether we shall open the door of office
indiscriminately to those who believe, and to those who reject, this revelation of God’s
will. … If men should be elevated to high and responsible stations, who are enemies of
christianity, may we not look with some apprehension to the consequences?”
64
Still others were ambivalent about religious tests and oaths for political office.
The famed orator and statesman Daniel Webster saw no reason why “the people”
could not impose religious qualifications – or any other qualifications, for that matter –
on public offices. “All bestowment of office remaining in the discretion of the people,
they have, of course, a right to regulate it, by any rules which they may deem
expedient.”
65
But Webster concluded that religious test oaths were not necessary
insofar “as there is another part of the constitution which recognizes in the fullest
manner the benefits which civil society derives from those Christian institutions which
cherish piety, morality, and religion.” “I am desirous,” he continued, “in so solemn a
transaction as the establishment of a constitution, that we should keep in it an
expression of our respect and attachment to christianity; – not, indeed, to any of its
peculiar forms, but to its general principles.”
66
For Webster, the general ceremonial

17
and moral establishment provisions of the Constitution were enough to ensure
adherence to Christian values.
Ultimately the Convention proposed to abolish the religious test requirement
and to modify the oath to read, “I, A. B., do solemnly swear that I will bear true faith
and allegiance to the Commonwealth of Massachusetts and will support the
constitution thereof. So help me God.”
67
The proposed amendment further allowed
Quakers to “affirm” rather than “swear” the oath, and to replace the words, “So help me
God” with “This I do, under the pains and penalties of perjury.” Isaac Parker, speaking
on behalf of the Convention in its official “Address to the People,” reported these
changes matter-of-factly:
We have agreed that the declaration of belief in the Christian religion ought
not to be required in the future; because we do not think the assuming of
civil office a suitable occasion for so declaring; and because it is implied,
that every man who is selected for office, in this community, must have
such sentiments of religious duty as relate to his fitness for the place to
which he is called.”
68
Massachusetts voters agreed and ratified these constitutional amendments in the
spring of 1821.
Toward Disestablishment. The Convention of 1821 proposed other
amendments to Article III
69
that aimed to reform and clarify the patchwork of court
rulings and political measures from 1780 forward, but these efforts were defeated.
70
One proposed amendment sought to raise to constitutional status the Religious
Freedom Act of 1811 that had standardized the application process for any group
claiming exemption from tithes – a statute passed in response to the Barnes v.
Falmouth case.
71
Another proposed amendment sought to regularize state procedures
for the incorporation of religious groups.
72
Still another aimed to abolish mandatory
church attendance. Another would have entitled citizens to transfer their religious taxes
to any Christian church, rather than to Protestant churches alone.
73
The voters,
however, rejected these amendments, leaving Article III in its original 1780 form.
Though Article III survived the Convention of 1821, subsequent lawsuits and
controversies continued to erode popular and political support for it. The Dedham
case, for example, pitted liberal Unitarian and traditional Trinitarian Congregationalists
against one another in a contest over who controlled church property and clergy hiring
decisions. The Unitarian parish members (who were required to pay religious taxes in
support of the local church) sought to appoint a liberal minister for that local church.
The Trinitarian members of the local church objected, claiming to be the true owners of
the church and entitled to elect their own clergy. As the controversy unfolded, the local
Trinitarian congregants left the church, taking the communion silver and other valuable
church property with them. The Massachusetts courts held for the liberals – arguing
that the parish, not the local church, controlled the church property and had the

18
authority to decide on clerical appointments.
74
Unitarians won legal victories in several
other intrachurch disputes in the 1820s and 1830s, and gradually consolidated their
control of other parishes, as well as the Harvard Divinity School.
In response, Trinitarians formed political alliances with opponents of the
traditional establishment, making legislative concessions that ultimately undermined
the religious tax system created by Article III. For example, a new Religious Liberties
Act of 1824 made it even easier for non-church members and religious dissenters to
claim exemptions from religious taxes, weakening the ability of parishes to collect
tithes from dissenters and to support traditional Congregationalist ministries.
75
In other
quarters, Article III proved to be increasingly “fruitful in lawsuits, bad feeling, and petty
prosecution.”
76
By 1831, Samuel Lathrop, a leading member of the Senate, observed
that Article III had grown decrepit. Serious disjunctions had developed between the law
on the books and the law in practice:
Whenever any provision of the Constitution ceases to have any obligatory
effect – when public opinion clearly and unequivocally demands of the
legislature a disregard of its injunctions – when we are obliged to frame
our laws in such a manner as to evade it, or directly to contravene it, and
when our judicial tribunals give the sanction of constitutionality to such
enactments, the continuance of the article remains not merely useless – it
also tends to diminish our veneration for the whole instrument, and
necessarily leads to a practice of immoral tendency. Will not these
observations apply to the third article in our Bill of Rights?
77
One year later, a widely circulated set of petitions decried the Constitution’s religion
provisions as anachronistic, un-American, and even tyrannical – and quite in contrast
with other New England states that had recently rejected religious taxes and other
supports for religion.
Massachusetts stands alone among the States in the Union in making
legal provision for the support of Religion; and notwithstanding the
reverence which has by some been paid to the Third Article, it has become
settled that it is a subject of vexation to many, a means of petty tyranny in
the hands of a few, and altogether injurious to the cause of pure and
undefiled religion.
78
In 1833, those who sought to foster such “pure and undefiled religion” by way of
church-state separation finally prevailed by passing the Eleventh Amendment to the
Massachusetts Constitution. This Amendment replaced Article III with a system of
religious voluntarism:
As the public worship of God and instructions in piety, religion and morality,
promote the happiness and prosperity of a people and the security of a
republican government; – therefore, the several religious societies of this

19
commonwealth, whether corporate or unincorporate, at any meeting
legally warned and holden for that purpose, shall ever have the right to
elect their pastors or religious teachers, to contract with them for their
support, to raise money for erecting and repairing houses for public
worship, for the maintenance of religious instruction, and for the payment
of necessary expenses: and all persons belonging to any religious society
shall be taken and held to be members, until they shall file with the clerk
of such society, a written notice, declaring the dissolution of their
membership, and thenceforth shall not be liable for any grant or contract
which may be thereafter made, or entered into by such society: – and all
religious sects and denominations, demeaning themselves peaceably, and
as good citizens of the commonwealth, shall be equally under the
protection of the law; and no subordination of any one sect or
denomination to another shall ever be established by law.
79
The Eleventh Amendment thus made church membership and funding entirely
voluntary. It granted all religious societies – Christian or not, incorporated or not – the
right to hire their own clergy, to build their own churches, and to manage their own
membership rolls. It promised equal protection of the law to believers of all sects and
non-believers, alike, and it ensured that individual members of those sects could exit
without incurring liability for contracts subsequently made by the other members of that
sect.
V.
Additional amendments to the Constitution in 1855, 1917, and 1974 closed the
door tightly against any form of state fiscal and material aid to religious institutions and
endeavors – provisions that the Massachusetts courts have enforced with alacrity.
80
For all of these changes, however, religion remains a feature of Massachusetts’
Constitution, and the ceremonial and moral establishment policies remained in place
after 1833. To this day, Article II protects the “right as well as the duty of all men in
society, publicly, and at stated seasons to worship the Supreme Being, the great
Creator and Preserver of the universe.” The Eleventh Amendment still justifies the
principle of religious voluntarism on the ground that, “the public worship of God and
instructions in piety, religion and morality, promote the happiness and prosperity of a
people and the security of a republican government.” The Preamble still
acknowledges, “with grateful hearts, the goodness of the great Legislator of the
universe, in affording us, in the course of His providence, an opportunity, deliberately
and peaceably, without fraud, violence or surprise, of entering into an original, explicit,
and solemn compact with each other; … [while] devoutly imploring His direction” in this
constitutional covenant. In some ways, the chastened remnants of Massachusetts’
religious establishment, combined with the strengthened protections for religious
freedom, more fully reflect John Adams’ original vision of a truly “mild and equitable
establishment of religion.”

20
1
Robert J. Taylor, Construction of the Massachusetts Constitution (Worcester, MA:
American Antiquarian Society, 1980), 317. Among countless overviews, see esp. the
classic of Samuel Eliot Morison, A History of the Constitution of Massachusetts
(Boston: Wright & Potter, 1917). For principal primary texts, see Oscar Handlin and
Mary Handlin, eds., The Popular Sources of Political Authority: Documents on The
Massachusetts Constitution of 1780 (Cambridge, MA: Harvard University Press, 1966);
Robert J. Taylor, ed., Massachusetts, Colony to Commonwealth: Documents on the
Formation of Its Constitution (Chapel Hill, NC: University of North Carolina Press,
1961); Ronald M. Peters Jr., The Massachusetts Constitution of 1780: A Social
Compact (Amherst, MA: University of Massachusetts Press, 1978). This chapter is
adapted in part from John Jr. Witte, "A Most Mild and Equitable Establishment of
Religion: John Adams and the Massachusetts Experiment," Journal of Church and
State 41, no. 2 (Spring 1999): 213-252.
2
See John Adams, A Defense of the Constitutions of Government in the United States
of America (1787) in The Works of John Adams, ed. C.F. Adams, 10 vols., (Boston:
Little & Brown, 1850-1856), vols. 4-6. See recent biographies by David McCullough,
John Adams (New York: Simon and Schuster, 2008); Gordon S. Wood, Friends
Divided: John Adams and Thomas Jefferson (New York: Penguin Books, 2017).
3
Adams to Dr. Price, April 8, 1785, in Adams, Works, 8:232 and quotations in The
John Adams Papers, ed. Frank Donovan (New York: Dodd, Mead & Company, 1965),
181. Also see Adams, Works, 4:290-297; John Adams, A Dissertation on the Canon
and Feudal Law (1774), in Works, 3:451.
4
Adams, Works, 2:399 (referring to the Congregational establishment of colonial
Massachusetts, largely preserved in the 1780 Constitution).
5
See overviews in Jacob C. Meyer, Church and State in Massachusetts from 1740-
1833: A Chapter in the History of the Development of Individual Freedom, repr. ed.
(1930; repr., New York: Russell & Russell, 1968); William C. McLoughlin, New England
Dissent, 1630-1833: The Baptists and the Separation of Church and State, 2 vols.
(Cambridge, MA: Harvard University Press, 1971); Johann N. Neem, “The Elusive
Common Good: Religion and Civil Society in Massachusetts, 1780-1833,” Journal of
the Early Republic 24 no. 3 (Fall 2004): 381-417; John D. Cushing, “Notes on
Disestablishment in Massachusetts, 1780-1833,” William and Mary Quarterly 26, no. 2
(April 1969): 169-190.
6
Handlin and Handlin, Popular Sources, 190-201.
7
“Resolve on the Question of a Constitution” (February 20, 1779), in Handlin and
Handlin, Popular Sources, 383-384.

21
8
In Taylor, Construction of Massachusetts Constitution, 118.
9
In Handlin and Handlin, Popular Sources, 419.
10
Peters, Massachusetts Constitution of 1780, 24-30.
11
Worcestriensis, Number IV (1776), in Charles S. Hyneman and Donald S. Lutz,
American Political Writing During the Founding Era, 1760-1805, Liberty Fund Library of
the American Republic (Indianapolis: Liberty Press, 1983), 449-454, at 450.
12
Worcestriensis, in Hyneman and Lutz, American Political Writing, 452.
13
Worcestriensis, in Hyneman and Lutz, American Political Writing, 452-453. See also
Samuel West, A Sermon Preached Before the Honorable Council ... of the
Massachusetts-Bay in New England (Boston: John Gill, 1776), in J.W. Thornton, The
Pulpit of the American Revolution (Boston: Gould and Lincoln, 1860), 259-322, at 297-
299.
14
Phillips Payson, “Election Sermon of 1778,” in Hyneman and Lutz, American Political
Writing, 523-538.
15
Payson, “Election Sermon of 1778,” 528-530.
16
William G. McLoughlin, ed., Isaac Backus on Church, State, and Calvinism:
Pamphlets, 1754-1789 (Cambridge, MA: Harvard University Press, 1968), 351, 357-
58, 361, 373-75.
17
As reported by Isaac Backus in McLoughlin, Backus, 12. See also Adams, Works,
2:399.
18
The delegates did not attend all sessions; the highest recorded vote on any issue
was 247. Samuel Eliot Morison, “The Struggle over the Adoption of the Constitution of
Massachusetts, 1780,” Proceedings of the Massachusetts Historical Society 50 (1916-
1917): 356.
19
Peters, Massachusetts Constitution of 1780, 24.
20
Peters, Massachusetts Constitution of 1780, 23-31; McLoughlin, Backus, 386.
21
The draft is in Adams, Works, 4:213-267.
22
In 1976, Article I was amended by Mass. Const. art. CVI, which rendered “all men”
as “all people” and added: “Equality under the law shall not be denied or abridged
because of ... creed....”

22
23
Chapter I, Section III. See Chapter II, Section II (requiring that the governor “shall be
of the Christian religion”); Section III (requiring that the lieutenant governor “shall be
qualified, in point of religion”). Adams, Works, 4:241, 242, 245, 251.
24
See Chapter VI, Art. I. Also see Journal of the Convention for Framing a Constitution
of Government for the State of Massachusetts Bay, from the Commencement of Their
First Session, September 1, 1779, to the Close of Their Last Session, June 16, 1780
(Boston: Dutton and Wentworth, printers to the state, 1832), 97, 109-110 (summarizing
debates on February 10, 14, and 15, 1780 about the same).
25
Chapter VI, Article I, in Adams, Works, 4:260-266.
26
See esp. Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge:
Louisiana State University Press, 1988). See also John Witte, Jr., The Reformation of
Rights: Law, Religion, and Human Rights in Early Modern Calvinism (Cambridge:
Cambridge University Press, 2007), 277-320.
27
See Payson, “Election Sermon,” 529. This was also one reason that Adams wrote
into his draft of Chapters I and II that every official must be “of the Christian religion.”
28
For an overview of the subsequent controversies concerning the leadership and
religious affiliation of Harvard College, see Meyer, Church and State, 87-91; Yan Li,
“The Transformation of the Constitution of Massachusetts, 1780-1860” (PhD diss.,
University of Connecticut, 1991), 82-84. Also see debates in Nathan Hale and Charles
Hale, eds., Journal of Debates and Proceedings in the Convention of Delegates,
Chosen to Revise the Constitution of Massachusetts, Begun and Holden at Boston,
November 15, 1820, and Continued by Adjournment to January 9, 1821, Reported for
the Boston Daily Advertis., rev. and cor. ed., Making of Modern Law: Primary Sources,
1620-1926 (Boston: Boston Daily Advertiser, 1853), 15-16, 491-93, 527-32, 556-57,
619, 630-31.
29
Ellis Ames, Abner Cheney Goodell, John H. Clifford, Alexander S. Wheeler, Wm. C.
Williamson, Melville Madison Bigelow, Massachusetts, and Massachusetts General
Court, The Acts and Resolves, Public and Private, of the Province of the
Massachusetts Bay: To Which Are Prefixed the Charters of the Province: With
Historical and Explanatory Notes, and an Appendix, 21 vols., Making of Modern Law:
Primary Sources, 1620-1926 (Boston: Wright and Potter, printers to the state, 1869-
1922), 1:62-63.
30
See sources and discussion in John Witte, Jr., “Tax Exemption of Church Property:
Historical Anomaly or Valid Constitutional Practice?” Southern California Law Review
64, no. 2 (January 1991): 363-415, at 368-380.
31
Morison, “The Struggle,” 353-412, esp. 370.

23
32
See details in Cushing, “Notes on Disestablishment,” William & Mary Quarterly
26(2): 169-190; McLoughlin, New England Dissent, 547-565; Meyer, Church and
State, 32-89.
33
Taylor, Construction of Massachusetts Constitution, 331.
34
In Adams, Works, 4:221-222; a slightly reworded version appears in the Journal of
the Convention, Appendix II, at 193.
35
Journal of the Convention, 38-40.
36
Journal of the Convention, 43.
37
Journal of the Convention, 46-47.
38
See Yan Li, “Transformation of the Constitution,” 68, arguing that members of
dissenting churches were not uniformly opposed to Article III.
39
Morison, “The Struggle,” 375.
40
Morison, “The Struggle,” 371.
41
Journal of the Convention, Appendix III, at 218.
42
Morison, “The Struggle,” 364-365.
43
See, e.g., “The Returns of New Salem,” in Handlin and Handlin, Popular Sources,
482; “Town of Shutesbury,” 597; “Town of Ashby,” 633; “Town of Sherborn,” 674;
“Town of Westford,” 682-683; “Return of Buxton,” 731; “Town of Petersham,” 855 and
“Return of Ashby,” in Taylor, Documents, 151-152.
44
“Return of Dartmouth,” in Handlin and Handlin, Popular Sources, 509-510.
45
Peters, Massachusetts Constitution of 1780, 33-35.
46
“Return of Westford,” in Handlin and Handlin, Popular Sources, 681, 682.
47
“Return of Petersham,” in Handlin and Handlin, Popular Sources, 855.
48
Continental Journal, April 6, 1780, quoted in Peters, Massachusetts Constitution of
1780, 82. See also “Return of the Town of Westford” in Handlin and Handlin, Popular
Sources, 682-683.
49
Quoted in Taylor, Documents, 151-152.

24
50
Taylor, Documents, 151-152.
51
Meyer, Church and State, 111. Also see original quote in Morison, “The Struggle,” at
368: “Baptist Advocates of religious liberty … retorted by comparing religious taxation
to a certain practice of the sons of Eli.” (Likely referring to 1 Samuel 2: 12-36.) Even
John Adams allegedly tried to inflame the Convention against Backus in order to
secure passage of the controversial Article III. See Taylor, Construction, at 333, as
cited in Wood, Friends Divided, 175.
52
Meyer, Church and State, 113. The Township returns are included in Handlin and
Handlin, Popular Sources, 475-932.
53
Taylor, Documents, 113.
54
In Taylor, Documents, 162-165, at 164. Also see Meyer, Church and State, 110-111,
noting that the Convention “seems to have counted as in favor of an article all those
who did not definitely and specifically vote in the negative on it, if the votes were
needed to pass the article. This is the procedure which Professor Samuel Eliot Morison
has called ‘political jugglery.’”
55
Also see Jonathan J. Den Hartog, Patriotism and Piety: Federalist Politics and
Religious Struggle in the New American Nation (Charlottesville, VA: University of
Virginia Press, 2015).
56
See the careful sifting of this case law in McLoughlin, New England Dissent, 636-
659, 1084-1106, 1189-1284, with summaries in William G. McLoughlin, “The Balkcom
Case (1782) and the Pietistic Theory of Separation of Church and State,” William &
Mary Quarterly 24, no. 2 (April 1967): 267-283; Cushing, “Notes on Disestablishment.”
57
See McLoughlin, New England Dissent, 1145-1185.
58
McLoughlin, New England Dissent, 1156.
59
McLoughlin, New England Dissent, 1157.
60
Meyer, Church and State, 187.
61
McLoughlin, New England Dissent, 1159.
62
See Journal of Debates and Proceedings, 612-639.
63
Journal of Debates and Proceedings, 163-165.
64
Journal of Debates and Proceedings, 170.

25
65
Journal of Debates and Proceedings, 161.
66
Journal of Debates and Proceedings, 161.
67
Journal of Debates and Proceedings, 620.
68
Journal of Debates and Proceedings, 630.
69
Journal of Debates and Proceedings, at 613-614, 623-624, 634.
70
See, for example, the “exemption laws” of 1790-1791, in McLoughlin, New England
Dissent, 925-928, 935-938.
71
See McLoughlin’s discussion of “The Barnes Case and the Religious Liberty Act,
1810-1817” in McLoughlin, New England Dissent, 1084-1106.
72
Debates about the legal status of church corporations played a notable role in the
emergence of nonprofit corporations in the United States. See Johann N. Neem,
“Politics and the Origins of the Nonprofit Corporation in Massachusetts and New
Hampshire, 1780-1820,” Nonprofit and Voluntary Sector Quarterly 32, no. 3
(September 2003): 344-65.
73
McLoughlin, New England Dissent, 1183.
74
See McLoughlin, “The Dedham Case and the Amendment of the Religious Liberty
Act, 1821-1824” chapter in McLoughlin, New England Dissent, 1189-1206.
75
McLoughlin, New England Dissent, 1205.
76
Morison, History of the Constitution, 24-25.
77
“Domestic Intelligence: Massachusetts Legislature,” Christian Register, March 19,
1831, 47.
78
McLoughlin, New England Dissent, 1246.
79
Mass. Const. amend., art. XI (1833).
80
Mass. Const. amend., art. XVIII (1855) provides that tax “moneys shall never be
appropriated to any religious sect for the maintenance exclusively of its own schools.”
This was superseded by Article XLVI (1917) that provides, in pertinent part, that “no
law shall be passed prohibiting the free exercise of religion” and that no tax money was
to be paid to religious groups or activities. Article XLVI, in turn, was further amended
by Article CIII (1974): “No grant, appropriation, use of public money or property or loan
of credit shall be made by the Commonwealth or any political subdivision thereof for

26
the purpose of founding, maintaining, or aiding any ... charitable or religious
undertaking which is not publicly owned and under the exclusive control of [the
Commonwealth].” For summary of the cases, see Herbert P. Wilkins, “Judicial
Treatment of the Massachusetts Declaration of Rights in Relation to Cognate
Provisions of the United States Constitution” Suffolk University Law Review 14, no. 4
(Summer 1980), 887-930, at 892-894.