The Constitution uses the word “Establishment” exactly twice. The second time is familiar to CLR Forum readers: “Congress shall make no law respecting an establishment of religion…” Do you know what the first reference is? (No peeking!…the answer, a thought, and a question after the jump)
If you knew that it was in Article VII — the provision of the Constitution exactly prior to the First Amendment (though obviously adopted just a few years before it) — you know your Constitution! “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”
Here’s the thought: if one were inclined toward a structuralist reading of the Constitution, and one believed that the word Establishment should be construed as having a single meaning in both provisions, then it seems to me that one might think that “Establishment” ought very probably to mean something like “having the binding force of law on everyone,” or “officially binding and enforceable on everyone,” or at least, “having official and enforceable legal effect.” I take it that everybody would agree that this is the meaning of Establishment in Article VII. The key is that the Constitution would be enforceable by state coercion.
It seems to me that this meaning is pretty far from the meaning we give to the Establishment Clause today. When the Supreme Court talks about establishments of religion today, it is infrequently talking about laws which are enforceable by government coercion. There has been a “coercion test” which has attracted some of the Court, though there have been disagreements about whether psychological coercion ought to count. But so far as I know the coercion test and doctrine has not made use of structuralist arguments. Of course, the First Amendment contains the word “respecting” before “an establishment of religion,” so any structuralist argument would have to deal with the meaning of that word. I don’t necessarily think that would be problematic for the structuralist reading, though. Following the meaning in Article VII, “respecting an establishment of religion” seems like it means, “involving or dealing with a law about religion which can be coercively enforced on everybody.”
The question is — does anyone know if a structuralist argument of this kind (or of a different sort) has ever been made by anybody writing about the Establishment Clause?