Useable Tools: Immunity

Of all the conservative innovations to cabin federal power in the name of the founding values of federalism — at least without clear textual basis — the doctrine of sovereign immunity is the most impressive. This the hardest doctrine to understand as a textual matter — except through the lens of translation — and yet it practices its fidelity to meaning with a doctrine that does not yet cross the boundaries of fidelity to role. 

Notice how the majority, especially in Alden, could do better if it simply acknowledged the result as translation rather than originalism, and how the dissent is simply talking past the federalist objectives. 

On dignity, how might the Grand and Petit Jury requirements be parallel? -LL