Massachusetts kept a state church until 1833, and the Constitution let it

For forty-two years after the First Amendment was ratified, the Commonwealth of Massachusetts supported a state church with public money, and nobody in Boston thought the Constitution had a word to say about it. Nobody in Washington did either. That is not a footnote to American church-and-state law. It is the first chapter, and most of the modern argument skips it.

Here is the puzzle. We are told, in a thousand op-eds and a good many judicial opinions, that the Establishment Clause built a high wall between government and religion at the founding. Yet the men who wrote it, and the states that ratified it, went home and kept right on taxing citizens to pay Congregationalist ministers. Either they were hypocrites or we have misunderstood what they wrote. I'd argue the second, and the evidence is in the dates.

What the text says, and whom it binds

Start where every constitutional argument should start, with the words. The First Amendment, ratified in 1791 as part of the Bill of Rights, opens this way:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

The subject of the sentence is Congress. Not "government," not "the state," not "any public authority." Congress. Read it the way a lawyer reads a contract and you find a prohibition on one named party. The other amendments in the Bill of Rights are phrased more broadly, but the Founders knew how to say "no state shall" when they meant it, and they said it in Article I, Section 10, where the states are forbidden to coin money, pass bills of attainder or impair contracts. They did not say it in the First Amendment.

Two words in the clause deserve attention. "Respecting" cuts two ways. Congress may not pass a law setting up a national church. Congress also may not pass a law that interferes with a church a state has already set up, because such a law would be a law "respecting" an establishment too. The clause protected state establishments from Washington as much as it protected citizens from a national one. We take up that reading at more length in No Law Respecting an Establishment Meant Something Specific in 1791 and Sixteen words on religion in the First Amendment, read phrase by phrase, but the point to hold on to here is simple. In 1791 the amendment was a limit on the federal government, and it was meant to be.

The thirteen laboratories

When independence came, the new states went their separate ways on religion. Virginia, after a long fight in which James Madison carried Thomas Jefferson's bill through the assembly, passed the Statute for Religious Freedom in January 1786 and ended its tax-supported Anglican church. Pennsylvania and Rhode Island had never had one in the old sense. Others kept something.

The pattern is worth stating plainly, because it surprises people raised on the wall metaphor:

1. Several state constitutions of the founding era limited high office to Protestants, or to Christians, or required officeholders to affirm belief in God. Article VI of the federal Constitution forbade religious tests only for federal offices, and it said so in so many words: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." The words "under the United States" did the work. States were left alone. When Ratifying Conventions Argued Over Article VI's Ban on Religious Tests tells the story of that fight.
2. Some states supported churches directly, through taxes assessed on every citizen and paid to the church of his choice, or to the church of the town's majority.
3. Some states did both, and a few kept their arrangements for a generation or more.

Federalism was doing what it was designed to do. Thirteen states were thirteen laboratories, and on the most contested question in the Western tradition, the relation of altar and state, the Founders chose not to impose one answer from the center. That choice is part of the original design, not an accident of it. You may think the design was wrong. You may not call it absent.

Massachusetts, in detail

The Massachusetts Constitution of 1780 is the best case study because it is so frank. John Adams was its principal author, and the document is, in its own way, a monument to liberty: a declaration of rights, separation of powers, the oldest written constitution still in force anywhere in the world. And it includes, in Article III of the Declaration of Rights, a provision empowering the legislature to require towns, parishes and religious societies to make "suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public protestant teachers of piety, religion and morality."

Read that again. Public Protestant teachers. The text is not a loophole in a document otherwise committed to neutrality; it is the settled design of the Commonwealth. The reasoning was the reasoning of the age. Adams and the delegates believed that a free republic needs virtuous citizens, that virtue needs religion, and that religion needs support. Washington's Farewell Address would say much the same in 1796, as Why Washington's Farewell Address called religion and morality indispensable explains. The Massachusetts answer was to fund it by law.

In practice, the system meant a tax paid to the town's church, which in nearly every town was Congregationalist. Dissenters could be excused if they proved membership in another congregation. Here is where the arrangement drew its fiercest critics. Baptists, Quakers and Universalists were required to produce certificates showing they belonged to a church of their own, and the certificate had to come from the very officials the dissenters were seeking to avoid. Isaac Backus, the Baptist minister and the best-known New England voice for religious liberty, had been protesting this arrangement since before the Revolution. His point was not that religion should be shut out of public life. It was that a church ought to be held up by the free gifts of its members and not by the tax collector, and that a certificate regime made a conscience a thing to be licensed.

The Baptists of Connecticut felt the same. In October 1801 the Danbury Baptist Association wrote to the new President, Thomas Jefferson, to congratulate him and to speak of their position as a religious minority in Connecticut. Jefferson answered on January 1, 1802, and his reply contains the sentence that was to have a long and busy afterlife. He wrote that the American people, by declaring that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," were "thus building a wall of separation between Church & State."

Note who Jefferson was addressing and what he was saying. He was writing as President of the United States, about the powers of the federal government, to Baptists who lived under a state establishment. He told them, in effect, that Washington would not do to them what Hartford was doing. He did not tell them that he could lift the burden of the Connecticut establishment, because he could not. The wall in his letter is a wall around Congress. The president who wrote the letter also, as a matter of record, declined to proclaim national days of fasting and thanksgiving, on the ground that the federal government had no such authority. That is a federalist position, and it sits comfortably beside a state's right to do otherwise.

Barron v. Baltimore and the shape of the Bill of Rights

Suppose a Massachusetts Baptist in 1830 had wanted to sue. On what ground? The Supreme Court had answered in advance. In Barron v. Baltimore (1833), a case about a wharf left in shallow water when city public works diverted streams and silted up the harbor, the plaintiff argued that the Fifth Amendment's takings clause bound the city of Baltimore. Chief Justice John Marshall, writing for a unanimous Court, held that it did not. The Bill of Rights, he said, was framed as a restraint on the government of the United States, and the people of the several states had made their own constitutions and had their own remedies. If the framers had wished to bind the states, he reasoned, they would have said so as they had in Article I, Section 10.

Barron was decided in February 1833. That is also the year Massachusetts finished with its state church, which is a coincidence worth pausing over. The same year the Court told Americans that the federal Bill of Rights did not reach the states, the Commonwealth, by its own people's vote, lifted its own establishment. The right result in Massachusetts came from Massachusetts.

How establishment ended, state by state

The record of the later disestablishments is the best argument that federalism worked. Look at the sequence:

• Virginia ended its established church in the 1780s, culminating in the 1786 statute.
• South Carolina followed in 1790.
• Connecticut ended its established Congregationalism in its constitution of 1818. Lyman Beecher, a Congregationalist minister, had opposed the change and feared it would ruin the churches. He later wrote, in his autobiography, that it was the best thing that ever happened to the state of Connecticut, because it cut the churches loose from dependence on the state.
• New Hampshire, which had long taxed for town churches, ended compulsory support in 1819.
• Massachusetts was last. In 1833, voters ratified the Eleventh Amendment to the state constitution, which replaced the old Article III with a guarantee that every religious society could choose its own teachers and that no one would be compelled to support a church not his own.

Notice what did not happen. No federal court ordered any of it. Congress did not pass a statute. The Supreme Court did not intervene. State by state, through state conventions and state legislatures and state voters, Americans decided that a church sustained by a tax is a weaker church than one sustained by love. A good part of the vigor of American religion, which Tocqueville noticed on his visit of 1831 and 1832, owes something to the fact that churches had to earn their congregations.

I'd put it more bluntly. The disestablishment of New England is the most successful example in our history of a constitutional change achieved the way the Constitution intends: at the level of government closest to the people, after argument, by consent.

The strongest objection, answered

The best objection to all this runs as follows. The Fourteenth Amendment, ratified in 1868, changed everything. It says no state shall "abridge the privileges or immunities of citizens of the United States" or "deprive any person of life, liberty, or property, without due process of law." Over the twentieth century the Supreme Court read those words to carry most of the Bill of Rights against the states, including the Establishment Clause, a step it took in Everson v. Board of Education in 1947. So the history of 1791 to 1833 is interesting but beside the point. The question is what the Establishment Clause means now, as applied to the states, and in that reading the wall has to stand against states too. Everson v. Board of Education, the school bus case that changed church and state covers that case.

It is a serious argument and it deserves a serious answer. Take it in three parts.

First, the objection concedes the historical point. If the Establishment Clause binds the states only because of the Fourteenth Amendment, then it did not bind them before 1868, and the Founders who tolerated state churches did not violate their own amendment. The question becomes whether the people who ratified the Fourteenth Amendment meant to carry the Establishment Clause into the states.

Second, that is exactly where the evidence is weakest. The Fourteenth Amendment's drafters were focused on the rights of the freedmen, on the Black Codes and on state laws that denied citizens basic liberties. The privileges and immunities and due-process language fits the guarantee of speech, the right to keep and bear arms, the freedom of conscience and the free exercise of religion, all of them individual rights. It is harder to see how "no law respecting an establishment" is an individual right at all. It reads as a limit on a legislature's power to legislate in a field, which is how Congress in 1791 understood it. Black Codes, the freedmen and the Fourteenth Amendment's right to bear arms is useful for the drafters' purpose.

Third, the later history shows the clause was never meant as a ban on every public act touching religion. Justice Clarence Thomas has argued in separate opinions, including in Elk Grove Unified School District v. Newdow in 2004 and in Town of Greece v. Galloway in 2014, that the Establishment Clause is better understood as a protection for states against federal interference, and that even if it applies to the states it forbids only actual legal coercion in matters of religion, the kind of thing that fines you for staying home on Sunday. Other conservative jurists and scholars accept incorporation as settled and instead argue for tests built on history and tradition, which is the direction the Court took in Kennedy v. Bremerton School District in 2022. The family argument is real. The common ground is the point that matters: the founding-era practice is evidence, and the Court should use it.

What the history means for Establishment Clause fights

So what should we take from a church tax in Massachusetts? I'd put five points on the table.

1. A public act touching religion is not an establishment. The men who wrote the clause lived with chaplains, with days of prayer and with state support for ministers. An opening prayer or a chaplain in a legislature fits that tradition. The question for modern judges is whether the practice is the kind of coercive, tax-funded church of the old world the clause was written to prevent.
2. Coercion is the heart of the matter. The historical establishments were defined by compulsion: mandatory tax, mandatory attendance, mandatory tests. Take those away and the grievance falls apart. That fits the Court's reasoning in Town of Greece, where it upheld opening prayers.
3. History is the right yardstick. When courts replace the text and tradition with a free-floating test about what a reasonable observer might feel, the results are a mess. When they ask what the practice was in 1791 and after, they ask a question with an answer.
4. Federalism leaves room. On questions the Constitution does not settle, the states may decide. A state may fund a student's scholarship to a religious school or decline to, and the vote should be at the statehouse. Espinoza v. Montana and the Blaine Amendments Against Religious Schools shows how the opposite impulse, state bans on aid to religious schools, grew out of the nineteenth-century anti-Catholic politics in Bible riots, Know-Nothings and the amendment named for James G. Blaine.
5. Voluntary religion is stronger religion. The Baptists were right, and so was Beecher in the end. A church that can not lean on the tax collector must give its people a reason to come.

Is that the whole story? Of course not. There are fair disputes about displays, about schools, about how far the Fourteenth Amendment carried the clause. But those disputes should begin with the truth about 1791, not with a metaphor.

The metaphor and the text

One more word about Jefferson's wall. It is a fine phrase, and it appears in a letter, not in the Constitution. The Supreme Court quoted the letter in Reynolds v. United States in 1879 and leaned on it again in 1947, and a figure of speech became a rule. Judges lean on slogans because slogans save work, but the Constitution is a written text, and the text says what Congress shall not do. When a metaphor and a text disagree, the text wins.

There is also a deeper point. The Founders did not fear religion in public life. They feared compulsion. Madison's remonstrance against the Virginia assessment, the bill that would have taxed Virginians to support teachers of the Christian religion, was an argument for the liberty of the conscience, not for the silence of the believer. The conscience clause Madison wrote for the Bill of Rights and lost describes his own attempt, in 1789, to write a limit on the states into the Bill of Rights. The Senate struck it. The Founders knew the question and answered it by leaving the states free, and, within a few decades, the states answered it themselves.

The case in brief

1. The First Amendment of 1791 restrains Congress, by its own words: "Congress shall make no law respecting an establishment of religion."
2. Several states kept established churches long afterward, Connecticut until 1818 and Massachusetts until 1833, and the federal government had no power to stop them. Barron v. Baltimore (1833) confirmed that the Bill of Rights did not bind the states.
3. The establishments ended by state conventions, legislatures and voters, which is how a federal republic is supposed to settle such things.
4. The Fourteenth Amendment of 1868 raises a real question about incorporation, and conservatives disagree about the answer, but all of them should insist that the clause be read by text and history and not by a metaphor.
5. The lasting lesson of the Founding is that coercion in religion is the evil, and that voluntary faith is the strongest kind.

What you can do: read the First Amendment and Article VI of the Constitution at the Constitution page, then look up your own state constitution's religion clause on your legislature's website and see when it was last amended.