James J. Sample (Hofstra University, Maurice A. Deane School of Law) has posted Textual Rights, Living Immunities on SSRN. Here is the abstract:
Is the Supreme Court, especially, but not exclusively, in the Chief Justice Rehnquist through 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? Conversely, does the Court selectively apply these methods asymmetrically? Framed more provocatively, is the Court developing jurisprudence marked by limited originalist and textualist rights, but also malleable living immunities? Whether there is a definitive answer to that question is uncertain, but even assuming, arguendo, that such an answer exists, the aspiration is beyond the scope of this Article. Indeed, the goals of this Article are much more modest: to ask the question and to scratch its surface.