The Supreme Court has held that the Fourteenth Amendment makes the Establishment Clause applicable "with full force to the States." This Essay dubs this a "one-size-fits-all" approach and suggests that it may be desirable in the Establishment Clause context to "size" constitutional limitations to the level of government-federal, state, or local—that is acting. That is to say, it may be the case that states or localities should be permitted to regulate in ways that the federal government cannot, and vice versa. "Sizing" draws on underutilized flexibility that is inherent in our government's federal structure. The struggle concerning religion and the state that is reflected in Establishment Clause disputes is a profoundly cultural conflict—at stake, in the view of advocates on both sides, is the very character of citizens and of society—and the cultural dimension of this struggle is an integral part of the normative justification for sizing the Establishment Clause.
Mark D. Rosen,
Establishment, Expressivism, and Federalism,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol78/iss2/8