Abstract
One of the late Justice Scalia’s most lasting imprints on American jurisprudence is his relentless advocacy for the interpretive methodologies of “textualism” in statutory interpretation and “originalism” in constitutional interpretation. Although textualism and originalism are technically distinct methodologies, numerous scholars, in recent decades, have analyzed the many similarities between the two. Despite these similarities, jurists utilizing these interpretative methods do not always do so uniformly. In regards to Eleventh Amendment jurisprudence, the United States Supreme Court appears to be abandoning this systematic expectation. This warrants the question: Is the Supreme Court, especially in the Chief Justice Rehnquist and Chief Justice Roberts eras, applying the interpretive methods of textualism and originalism consistently in cases involving, on the one hand, the delineation of rights and remedies, and on the other, the development of defenses and immunities?
This Article poses the question of whether textualism and originalism are being asymmetrically applied depending on whether rights or immunities are at issue. If the application of these methodologies is dependent upon the situation, as this Article suggests, what are the larger consequences and implications of that asymmetry? The recent untimely passing of originalism’s chief progenitor, Justice Antonin Scalia, and the likely specter of three or more new Supreme Court appointees in the next few years, makes these questions critically important both in terms of confirmation hearings, and for determining the legacy of the Roberts Court.
Recommended Citation
James Sample,
Textual Rights, Living Immunities,
41
S. Ill. U. L.J.
29
(2016).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol41/iss1/2