Faculty Journal Articles and Book Chapters
Interpretive Issues in Seminole and Alden
For students of constitutional interpretation, Seminole Tribe of Florida v. Florida and Alden v. Maine, two of the Court's most important recent Eleventh Amendment opinions, are gold mines. Each is a monumental opinion with lengthy and spirited debate between the majority and the dissents. Every significant method of constitutional interpretation (including textualism, original understanding, structure, precedent, doctrine, practice, and rhetoric) is employed by both the majorities and the dissents. Both the majorities and the dissents are able to advance solid and respectable arguments in favor of their positions. Arguably, these two cases could be used as texts for the study of virtually all of constitutional interpretation. Rather than attempting that however, I would like to focus on and analyze several discrete interpretive issues presented in these cases. I will concentrate primarily on Seminole, but I will also discuss Alden, especially where similar interpretive issues or arguments are raised.