The Right Coast

May 20, 2005
Is Harvard Unconstitutional ....?
By Gail Heriot

John Eastman recently drew my attention to the Massachusetts Constitution, which contains the following provision on Harvard University:

Chapter V, Section I, Article I. Whereas our wise and pious ancestors, so early as the year [1636], laid the foundation of Harvard College, in which university many persons of great prominence have, by the blessing of God, been initiated in those arts and sciences which qualified them for the public employments, both in church and State; and whereas 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 the other United States of America, it is declared, that the president and fellows of Harvard College, in their corporate capacity, and their successors in that capacity, their officers and servants, shall have, hold, use, exercise, and enjoy all the powers, authorities, rights, liberties, privileges, immunities, and franchises which they now have, or are entitled to have, hold, use, exercise, and enjoy; and
the same are hereby ratifiedand confirmed unto them, the said president and fellows of Harvard College, and to their successors, and to their officers and servants, respectively, forever.

The document justifies giving Harvard special privileges and immunities (although it isn't clear exactly what those privileges and immunitie are) on the ground that the encouragement of arts and sciences "tends to the honor of God" and "the advantage of the Christian religion."

This raises an amusing question. If the Commonwealth of Massachusetts chose to ratify and confirm Harvard's status in order to confer honor on God and advantage on the Christian religion, shouldn't that make the grant (or the re-grant) of Harvard's charter "unconstitutional" under some popular interpretations of the Establishment Clause? I suppose Harvard could argue that the Massachusetts Constitution was adopted on 1780 and hence the grant was already complete by the time the First Amendment to the United States
Constitution was adopted. But I doubt anyone would argue that if the Commonwealth had granted any official status to the Unitarian Church that it would be "grandfathered" in simply because the grant had occurred before 1788. Maybe the ACLU can be persuaded to look into this.....