American Paradox

This has got to be one of the most deliberate attempts by a law student to establish his or her nerd leadership.

I admit that normally I would never take an online quiz to determine, "What canon of statutory construction are you?" But then again, I am in "Legislation" this term, and I find statutory construction sexy...

Another friend of mine, commenting on why working in the DC "insider" culture wouldn't be that great:

"Just because you get into the room doesn't mean you would enjoy jerking anybody off."

Priceless.

This missive from my friend, chatting during one of his classes...

Anonymous (3:51:13 PM): This one guy KEEPS talking, keeps raising his hand. Really pretentious tone. And he looks like Michael Douglas in "Falling Down," so I'd be afraid to demonstrate even limited contempt for his chatter.

Ahh, the perils of legal education, which selects for the most pretentious people from undergraduate education, gives them the entitlement "law student" and lets them speak in class. We would all value our fellow man much more if there were a strict lecture-only policy. But alas, my contempt for my fellows in the intelligentsia grows daily... I can see why those who are intelligent but out of the elite mainstream despise the elite "mainstream" (the "intelligentsia" of professors, journalists, scientists/researchers, and political groups who hold liberal-socialist views within roughly the same sphere as each other). It would be hellish to be completely out of their circle and have to deal with their incessant talking amongst themselves on a daily basis in just such a manner as described above.

My heart goes out to disaffected conservative and libertarian writers and researchers. I am not one of your own, but I understand how the mainstream elite press must sound to you. Neither am I sympathetic to the iwitticisms digested and regurgitated in self-congratulatory mainstream elite opinion. And yes, I did just invent the word "iwitticisms."

i-wit-ti-cism, n.
A boring, repetitious, or worthless remark. See synonyms at Trite, Hackneyed, et cetera.

There, I said it. I hate pompous and annoying persons of all political persuasions, but particularly those with political, economic, or social power.

Scalia
I'm a big fan of Justice Scalia; that is, I like Scalia the writer, Scalia the idealist, Scalia the purist. As a judge, however, he is far from the ideal set forth in his book A Matter of Interpretation or his various articles on judging. Scalia employs certain theories and doctrines as he sees fit, and always comes to a decision that would make sense politically for a social and economic conservative (as well as religious conservative). Every now and then he does something vaguely "liberal" when it won't actually hurt the cause of social conservatism and when he wants to grandstand.

So William Saletan at Slate has a nice article on Scalia's fair-weather treatment of fundamental constitutional principles. Basically, Saletan's article is hard to read for the first part of it, but the second part makes a lot of sense and is something I have noticed in the past as well. Scalia is a fair-weather federalist: there is great importance of giving states the freedom to try out legislation in the realm of public safety, criminal law, and so forth. This allows the states to act as public laboratories to evaluate the effectiveness of things like legalizing prostitution (Nevada), assisted suicide for terminally ill patients (Oregon), or medical marijuana (California). Scalia likes to parrot this line a lot when the stakes are abortion -- obviously he doesn't like that we have a national rule for all 51 jurisdictions that precludes many restrictions on abortion. But when it comes to legalized marijuana or assisted suicide? Scalia backpedals and suddenly, the "states as laboratories" thing isn't so important:

The fact that many in Oregon believe that the boundaries of 'legitimate medicine' should be extended to include assisted suicide does not change the fact that the overwhelming weight of authority (including the 47 States that condemn physician-assisted suicide) confirms that they have not yet been so extended.

I also would like to note that Scalia, who is obviously above politics and concerning only with reasoned elaboration of "what the law is," decided to quote from a Friend of the Court Brief in the assisted suicide case Gonzales v. Oregon that was filed by the Pro-Life Legal Defense Fund. Hmmm, nothing political there. Anyway, read the article, or better yet, read any set of Scalia opinions on abortion and assisted suicide/marijuana and tell me why federalism concerns should be selectively invoked to satisfy political desires on the part of religious conservatives.

Old People in Cars
Everyone "knows" that young drivers are very dangerous in their cars, and insurance rates reflect this, right? But many people don't understand the great danger posed by old people (armed with cars). Yes, the same demographic that is spending the federal budget into the ground with entitlements, decrying the supposed "decline" of public morality, and voting in large numbers to send young people to die in foreign wars. Yep, the same generation that is celebrated for its experience and perseverance during the cold war. Bullshit. You know what I want to point out? Old people cause a ton of car accidents, and the victims are probably younger people, who still have long lives ahead of them and don't need to be cut down by some nearly-blind person who stubbornly refuses to pay property and income taxes for public transit or refuses to hire a driver/use a family member for transportation.

The stats on this page reflect this pretty well for me (look just past midway down the page for the rate of fatal vehicular accident involvement): While young people between 16-24 are the most dangerous, pound-for-pound, the often overlooked class of people above 70 are also deadly. Especially the most dangerous class of all: people over 85 who continue to drive on public roads, the highest pound-for-pound causer of traffic fatalities in the United States.

Today I suffered from the deficiencies of our supposed "intelligent designer." As I was eating two very hot and very delicious bagels (one of which was actually a sandwich with pastrami), I bit my cheek not once but twice. Now this happens to me (and others, I presume) from time to time. My question is: Why would an all-powerful, massively intelligent "designer" design my mouth so that I would bite my cheek when I make a common biting motion with my jaw?

The answer, of course, is not that evolution is true and that mouths are imperfect. THe answer is that our intelligent designer is really dumb. In his drunkenness on Day Seven (see, e.g., Genesis) he obviously fucked up when he created the human mouth. For this I shake my fist at the sky.

And you cannot have the idea that 'he' modified our mouths after expulsion from Eden as a punishment. "From this day forth, thou shalt bite thy cheek with every seventy-fourth chew, and this shall be your punishment for your sin!" No, indeed, this would be akin to suggesting that the Designer actively intervenes to change, morph, or "evolve" human beings at his whim. I don't think that is the path the creationists want to go down!

Apparently, we all need to go to Portland to enjoy some good brewpubs!

I like good brewpubs. Town Hall in Minneapolis is my favorite because it the best brewpub in my hometown. I have not yet found an excellent replacement in the DC-area, but I will try this summer.

There was a recent article in the Boston Globe about how judges most often drift liberal over time, which is to say "liberal" in the modern sense (high amounts of state regulation of the economic sphere, and an embrace of social and multicultural liberalism in the social sphere). I also was linked on some page to this old interview with Richard A. Posner, where he has this quote which is very interesting (given that Posner has widely been considered a conservative-libertarian economics-meets-law guy):

The second point is that the experience of being a judge is bound to moderate one's views. When you are dealing with large doctrinal policy issues in a rather abstract way, it's very easy to allow your general outlook on things to carry you to foreordained conclusions. But when you are actually forced to consider both sides of the case, often you realize there is more to be said on the other side of the case than you might have thought. So a lot of statutes that I would have ridiculed as preposterous interventionism in the economy, when looked at up close in the context of the specific case, make more sense. I have learned there is more to be said for some of these interventionist laws than I had initially thought.

No doubt many of those who call themselves "libertarians" have not lived in a world without significant labor, health and safety regulations, and so cannot (or will not) understand the purpose behind their enactment. Remember that it was less than a century ago that libertarians were fighting tooth-and-nail to prevent the enactment of a statute in the U.S. banning child labor (under age 14). These were kids, working forty-plus hours in coal mines and factories, and libertarians said, basically, "freedom of contract... they knew what they were getting into." Sometimes I read history, non-partisan, purely factual history, and I blanch.

Alright, there are two debates that surface in the comments when I write about Originalism.

The Varieties of Originalist Experience
One is that I'm not really rejecting originalism, though I am rejecting a version of it that some people hold, a version I will call "ad hoc" originalism, which holds basically that you choose the original meaning of a text only when that makes the most sense and supports the rule of law, but that otherwise you follow text, precedent, or history as the case may take you.

I am over-simplifying here, which is uncharitable. The "ad hoc" version of originalism says that when you construe the meaning of a text or clause of a text, you consider the following sources as evidence of what it could mean:

• Text
• Precedent
• Original Public Meaning
• History

None of these is innately privileged (lexically) above the others, though some are considered to be of higher value in some cases. By this, we mean "value" in terms of the source being evidence for what the "true" or "best" meaning of the law is in that case. For example, sometimes precedent must be followed to preserve the "rule of law" values of predictability and stability in the law, which is (supposedly) why the U.S. Supreme Court in Planned Parenthood v. Casey preserved the fundamental holding of Roe v. Wade, against some very good textual reasons for overruling it. In any case, these possible "sources" of meaning are balanced against each other, and the most reasonable meaning is extracted that would serve the rule of law values of predictability and stability. Notice that this is predisposed to a certain conservatism (preserving the status quo), and it allows a genuine political conservative judge to pick-and-choose among the sources and find exactly the meaning that will preserve the status quo in as many cases as possible (except of course, where all the factors point towards a non-conservative meaning, in which case the judge can decide the case is non-justiciable for any number of reasons!). The major problem I have with this ad hoc originalism is that (1) it is not predictable as a method except inasmuch as it very often leads to preserving the status quo ante, and (2) it is inherently built to allow political decisions to be shielded under the guise of a "methodology" when in fact they (the political pre-decisions) are determinate. By allowing any of several sources to be privileged in different cases, an "originalist" in this mold can claim they are "following the rules laid down" and not doing politics, when in fact they have selected a particular source of evidence for purely political reasons. My evidence for this? A remarkable number of studies by political scientists over the past thirty years suggests that justices of the U.S. Supreme Court are relatively predictable over the long-term based sheerly on their perceived politics, and most of them are or purport to be ad hoc originalists in this mode. Whether or not you think the more "liberal" justices fall into this category is colored by the fact that they certainly reason this way for 99% of their written opinions.

It is probably true that most modern Republicans, as well as Judge (soon to be Justice?) Alito and Justice Scalia espouse a variety of this "ad hoc" theory of originalism. And without espousing it, most justices and judges actually do follow some variation on this general approach, the vast majority of the time. I do not believe this is a coherent theory, in terms of predictability. At best this makes it easier for an outside observer to predict the result a judge will come to based on the judge's politics and not on the judge's method, the latter of which is the only "legitimate" source of judicial decisions in a constitutional democracy such as ours.

Why is it easier to predict based on politics? For the vast majority of cases, ad hoc originalism, formalist originalism, and "living constitutionism" come to the same or substantially similar results. But the vast majority of cases is not what the U.S. Supreme Court hears! The U.S. Supreme Court hears only the most marginal, most tricky, most indecipherable cases, ones upon which lower courts have already disagreed. These cases demand that you have a theory that will explain and predict what the result should be, much like a science. If you don't have such a theory, then what the justices are doing is little more than politics, and they constitute an illegal super-legislature. Note that I do not think every "valid" method must be determinate in all cases, but I think that it should make it difficult to predict a judge's decisions based on politics, and that it should explain how all decisions can be made non-politically by attempting to constrain the discretion of unelected judges in these marginal cases.

There is a more "formalist" version of originalism that I consider superior from time to time. Many other thinkers have layed out such a theory, so I cannot claim credit for it. That version is basically what I wrote up in my second post on originalism: You look at the text and only the text first, and if the text is clear and unambiguous, then you use that meaning, period (textualism). Secondly, you look to the original public meaning of the statement as revealed through history or legal thought at the time of ratification to spell out the meaning as best as you can (originalism). In this "formal" definition, originalism takes back seat to textualism, and I think that is the most appropriate method because it protects the rule of law (predictability) from what we identified in ad hoc originalism - the tendency to choose your source of law based on whether it conforms to your politics. This remedies the perversion of a judge who says, "I know what the clause says, and I know it is unambiguous to a lay reader, but what the clause really means is X..." I think it is manifestly unfair to be able to alter the meanings of unambiguous clauses by reference to anything that was not ratified by the voters -- and all originalist evidence is not part of the constitution, and was therefore never voted and enacted by popular will. Therefore, I privilege textualism above originalism for that initial inquiry. To the extent we need that linguistic context to spell out the meaning of what was enacted, in the second order originalist evidence may be brought to bear on the clause.

The benefits of this formal system of adjudication is that at every step of the interpretation, you know what you can and cannot do. For example, until you have determined that it is unclear from the text (and only the text) whether the Eleventh Amendment precludes a suit between a citizen of Virginia and the government of Virginia, you cannot pursue some legislative or legal history to decide the matter.

Political Rhetoric and "Originalism"
My second major problem is with the popular use of the term "originalism." When used by talking heads on CNN or FOX NEWS, "originalism" doesn't correspond to a non-political, articulated version of either formalist originalism or ad hoc originalism. Even accepting for a moment that one could be an ad hoc originalist and not allow politics to sway one's beliefs when ruling on an indeterminate legal matter, it still doesn't correspond to the way "originalism" is bandied about on television and before the public.

What "originalism" means to the public is "conservative results," period. I could enumerate many examples, but the fundamental problem I have with calling a judge an "originalist" in the public sphere is that it means I am calling him or her a political conservative, and not describing the judge's method at all. That is because for a judge to be reliably called an "originalist" in the public sphere, they have to reject formalist originalism, which would sometimes lead to what would be called "liberal" results. They also have to have rejected a non-politicized version of ad hoc originalism as well, which could also lead to unacceptably "liberal" results. Now note that when I say this, I do not mean to say that some results are liberal and some conservative -- only that the public views it that way. The public will attribute a "liberal" label to a judicial opinion even if it is painstakingly formally originalist in its methodology. Imagine the public reaction if, for example, Justice O'Connor's dissenting opinion (joined by J. Thomas and the late C.J. Rehnquist) in Gonzales v. Raich had carried the day last June? The opinion was well-grounded in a modified (ad hoc) version of originalism that respected precedent, but it would have resulted in allowing states to decriminalize small amounts of marijuana for cancer patients to grow, purchase, and use to alleviate their pain. The public would have unequivocally responded by labeling this a "liberal" result, despite the originalism that went into it. Even using Justice Thomas's radically formalist originalist methodology from his concurrence in United States v. Lopez (1995) would have allowed California to decriminalize medicinal marijuana.

But I digress. My point is that the religious right would not get behind someone who, while reliably originalist, was also reliably "liberal" in terms of results. They would stop using the word as a positive descriptor and make of it a pejorative. That observation explains why I cannot imagine the public use of "originalism" to be anything other than a sheep's clothing trick, protecting the identity of hardcore , result-oriented conservative jurists.

German wheat beer is great. I tried Schneider Weisse Hefe-Weizen (Original) from Private Weissbierbrauerei G. Schneider & Sohn (Munich) for the first time this evening, and it was good. So good, so complicated -- like a wine. It was not overly hopped like an India Pale Ale, though I understand that some people like that kind of thing (I do not). It was not weak like an American Lager, lacking in real flavor. Instead, it has layers of taste that unfold as you drink it. I highly recommend.

'Jewish Academic says that Holocaust Denier Should Go Free'

So this British historian is sitting in an Austrian jail, possibly for a ten-year sentence, for giving speeches wherein he denied the existence of the Holocaust. What's interesting to me is not this case, which is just a sad reminder of the existence of Holocaust deniers and their ilk, but rather the draconian punishments of several European countries for what are, in essence, thought crimes.

Currently, at least nine European countries including Austria and Germany punish the thought/speech crime of denying the Holocaust. In Austria, it can net you a ten year sentence in jail. Why?

I am not suggesting that these fanatics are correct to deny the tragedy of World War II and Adolf Hitler's Third Reich. I am just saying that if you believe in free speech at all, you have to allow them to speak, unless they are willfully inciting incipient violence with their speeches, at a rally where people are wielding pitchforks or rifles. But that is not the case with an elderly professor questioning the accepted wisdom of nearly every intelligent person in the Western world. He might be stupid, he might be utterly wrong, and he might have immoral intentions, but those alone, apart from some criminal act, does not warrant imprisonment.

I returned to Charlottesville, Virginia last night, my home. It is weird to call it that, since I consider myself a born and bred Minnesotan, living away from "home." But I may as well call myself an east-coast Virginian now, given my plan to remain here indefinitely, subject to whim. Charlottesville has had great weather the last few days, and I'm enjoying the contrast from Minneapolis, Boston, and Montpelier (my last three haunts in the past few weeks over the holidays). Currently weather.com reports that it feels like 22 degrees in Minneapolis, 27 in Montpelier, VT, 36 in Boston, and 53 in Charlottesville, as of 3:50 PM EST. Oh yeah, the sun is out here, too, and there is no snow on the ground. Not that I dislike snow, but a reprieve is appreciated, especially since I am going skiing in Colorado in March. I'll get plenty of snow out west...

Munich Beer
German beer rules, and wheat beer is awesome. So I have been considering ordering some real weizenbier glasses from Straub's, which has a fine selection of authentic glassware for beer consumption.

All this browsing of glassware for drinking fine german beer is demanding of me a return to Europe, particularly East Germany and Scandinavia, although I also have a desire to see Ireland, Scotland, Wales, and Greater England (outside London) on a separate trip. I think a Norway-Sweden-Denmark-Berlin-Munich trip could be great, however, maybe for a fortnight after I take (and pass!) my BAR EXAM in late July 2007.

A-Ha
What a great band, to make such a catchy and annoying song ("Take on me") that keeps getting stuck in my head. Such inane lyrics, but I don't care. A-Ha, I salute thee!

So here I am in Boston, my newest favorite American city. No really - it's fantastic here. I ate sushi and thai food, drank California Pinot Noir on the 52nd Floor of the Prudential Tower overlooking the lovely Boston night skyline while listening to a jazz trio, and walked along a lovely downtown road with wine shops, a guitar shop, and the obligatory ten starbucks-to-a-block (and drank at none of them).

Seriously, the town is as cool as it was billed to me, and I've been here less than twenty-four hours. It's in the running to replace my other favorite city I know nothing about: Chicago. We'll see, I need to light up ChiTown sometime soon to add to my repertoire.

Boston: cold but not like Minneapolis, old and historic, fast but not New York, and well-dressed. Seriously, I have never seen such well-dressed commoners. Sure, in New York and Los Angeles people are well-dressed, but not the college students, not the Twenty-Somethings. Here they all have lovely black and tan designer coats with matching scarves, neatly-kept hair and less of a "city demeanor" than I expected.

Hopefully my trip to Cambridge will rouse me from these initially exuberant and fawning impressions.

In Minnesota, you are always cold even when it's not cold. You always feel a bit uncomfortable and shifty even though relatively speaking there is no reason for it. Paradoxically, I generally find it to be a comfortable state of Scandinavian descent, lakes, plains, and a kind of stoic but kind demeanor. That's a lot to impute to a region of the country best-known for mosquitoes, cold weather, and Prince. But I'm willing to step off that ledge.

What do I mean by saying that you're always cold even when it's not cold? I'm speaking literally, in part. I have been cold the entire two weeks I have been here, just like I remembered only worse. But I'm cold in spite of the fact that relatively speaking this is a very warm early January, with daytime temperatures around 35 degrees. So really, I'm speaking literally of how cold I've been despite evidence to the contrary that indicates that I shouldn't feel so cold.

But I'm speaking metaphorically too. This place feels a little isolated, a little cut off from circulation, a bit too chill sometimes. People go to work, run errands, go home, sleep, and begin the cycle anew. But it's so much more discrete, and rule-like here. It's so patterned. You don't stop and wonder about the purpose of doing what you're doing, and you don't sidestep your routine on a whim. You just hack through each day as though it were a bunch of weeds needing cutting in the springtime. But it's winter, and the sense of accomplishment I get from shoveling isn't enough to overcome the fact that when I walk out the door, I see lots of houses but no people outside them.

The suburbs, modern society, and the anxieties of American life do that. People are busy -- always! Must always keep busy. If you're not at work, sleeping your six hour shift at night, eating a quick meal, or buying some necessities, then you better be exercising, networking, monitoring the stock market, and watching the latest TV shows. You have to keep "improving" in the narrow economic sense of increasing your value, and you are directed to do this by autonomous memes that you can neither monitor nor feel, working inside your brain like clockwork.

These memes direct you unconsciously to desire things for their status enhancement value, for their instrumental value in getting you "ahead" -- whatever that means. Modern economic life (and all life is now economic) directs you to economize and maximize, but never "wastes time" on such trifles as determining a purpose. Why argue about ends, about purposes, when you can maximize, economize, and shuffle along to your grave in the best possible way? The memes don't answer when you call out in the lonely suburban void, the chill night of crisp air and shoveled driveways: "To what end?"

When I started this particular blog, I thought I would be posting about crappy pop music I hear in my car, the idiosyncratic forms of stupidity one encounters at a Top Ten Law School, and why I like shooting shotguns but could never vote Republican. But no, in my wannabe-erudite and contentious fashion, I end up posting about political theory and constitutional law. So be it!

Originalism and Textualism: Problems
My last post outlined a fictitious conversation between an Originalist and an interlocutor trying to understand it. I wrote it in as charitable a fashion I could, giving the benefit of the doubt to the Originalist and not pushing on some things I could have. In part, this is because Originalism seems to me a strong theory of interpreting Fundamental Law in a constitutional democracy, and I think everyone ought to take it seriously even if some reject it ultimately.

But Originalism, in any form that a judge would actually employ, must contain Textualism, a much more narrow theory of interpretation. Textualism starts with the premise that where a legal clause is sufficiently clear in its meaning and application, you simply follow what it says and stop arguing about what the person who wrote it "really" meant by it. This is not to say that marks on a paper are magical or always have a fixed meaning - far from it! But marks on a piece of paper, in the cultural context within which they are made, usually indicate a linguistic meaning that to a vast number of people in that cultural context. That meaning is usually clear to most people.

Problems with this approach arise when the textual clause in issue is vague, or did not address the application of the clause that is being challenged. To make this more concrete, consider a common civil rights complaint. An arrested individual sues the local police officers who arrested her, contending that they did not provide her with "due process of law" under the Fifth and Fourteenth Amendments of the Constitution (put aside the procedural issues such a suit raises, for a moment). The arrested individual says that the warrant was based on a vague description of her person which was incorrect and led to her wrongful arrest whereas another individual should have been arrested in her stead. The police contend that the warrant and the description it was based upon were of such a degree a particularity such that they were acting reasonably in arresting her. The court would obviously look at a lot of facts for such a case, but in the end the relevant facts and how they affect the court's decision must be guided by a construction or interpretation of the words "due process of law." What do those words entail in this case?

We could go back and forth and apply different constructions of what "due process" entails, but the point is that Textualism in its most basic form has to go deeper for it to help us out in this example. This is where Originalism comes in. Originalism tells us that where the plain meaning of the text is uncertain, vague, or vague in a particular application, we should consult what it meant to an ordinary person when it was enacted as law. That's Original Meaning.

For the Due Process Clause we mentioned above in our example, we look to the historic meaning of the concept "due process of law." That term actually has a specific and historical English common law definition that we need not lay out here. Suffice to say that the Fifth Amendment, as written in 1791, meant that traditional English meaning and no other.

Step Back
Step back a moment: why does Originalism need Textualism, and when is all this going to become relevant to a criticism of Originalism? Originalism needs Textualism because without it no one would take it seriously. In fact, I think the basic premises of textualism are accepted by most constitutional theorists -- what they disagree upon is how to interpret vague or unclear language and the application of that language. Originalism answers that problem by insisting that clauses of the Constitution be given the historical and common understanding of their import, period. Things are not so cut-and-dry, but that's the basic premise.

Why is all this a problem? I'm not sure it is. But what is a problem is that conservative jurists call themselves "Originalists" even when they are not. It is a problem to even be 95% "originalist" and 5% "living constitution" or "Dworkin's moral values" for your theorizing. Why? Because then it becomes clear that you are picking and choosing your system of interpretation based on political/moral preferences, to reach certain moral results. If you are declaring yourself to be a staunch "originalist," the only reason that declaration has value in a judicial confirmation hearing is because it supposedly signals that you will follow some objective legal methodology in interpretation, with no care for the results of that method.

But most so-called "originalists" abandon some of their premises from time to time, or use well-worn tricks to get around results in cases that, although flowing from pure Originalism, actually end up with a socially liberal policy result. This is why I highlighted my example with the Eleventh Amendment. One liberal cause that conservatives typically oppose (though with muffled language) is the ability for minorities to sue civil rights violators in federal court for their malfeasance. One barrier to these lawsuits is the Eleventh Amendment, which bars suits against states and state offices. A long line of U.S. Supreme Court precedents (Edelman v. Jordan, Will v. Michigan Dept., etc.) has established that lawsuits againsts states and state offices for damages are simply barred in federal court. And good luck trying to sue the government of Virginia in a Virginia state court! Immunity at the state level is the rule, as well.

But how did this result? Look at the language of the Eleventh Amendment:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

Interesting, so X, a citizen of Virginia, cannot sue the government of New York even though New York state police officers used excessive force on X during an unlawful search and seizure. But why, according to the Eleventh Amendment, can Y, a citizen of Virginia, not sue the government of Virginia for damages resulting from a Virginia state patrol officer's faulty arrest of Y?

It turns out that judges who call themselves "originalists" almost uniformly believe that the Eleventh Amendment bars any suit against a state by any citizen, no matter if it is his own state, in federal courts. These conservative judges (and they are conservatives, almost uniformly), believe that what the Eleventh Amendment was "really" trying to do was bridge the concept of "sovereign immunity" for states into the Constitution. Note that nowhere in the text of the Amendment do we see the words "sovereign immunity" or any reference to such a concept. Even if these so-called "originalists" were correct that the intent of the drafters of the Eleventh Amendment was to import "sovereign immunity" into the Constitution for the states, who cares? Drafter's intent doesn't matter to Originalists anymore - they abandoned it. So they have to prove that the public, at the time of the Eleventh Amendment, would have read the above clause to mean that Y cannot sue Virginia.

Would the public at that time have believed that, upon reading those words? I doubt it. But the key insight in this situation is that we don't need to make that Originalist inquiry in the first place -- the text is sufficiently clear on the matter! If you read the text in isolation, you could solve the issue of Y v. Virginia in a flash -- Y gets to sue Virginia in federal court so long as Y can prove Virginia citizenship. Textualism compels the natural and obvious reading of the clause so long as there is nothing vague about it, and in the Eleventh Amendment's case, in its application to Y v. Virginia, there is nothing vague. Y should get to sue.

But Y doesn't, and that's the tragedy of those conservative jurists who put their naked political preferences above a commitment to Originalism proper, which recognizes the primacy of Textualism whenever the text is clear. I said before that Originalism has been reduced to a rhetoric device for Republican politicians, and I think I am correct. A true Originalist accepts even socially liberal conclusions as long as the correct method is used. But true Originalists do not populate the "short list" of Republican nominees for federal benches.