Today was the second day of Originalism and its Critics, which I’m co-teaching with Eric Posner. We read Printz, Jud Campbell’s article on commandeering, and an article by John Manning on the use of the Federalist Papers. Two general thoughts on those readings:
1. On Printz and commandeering, I have already said that I think Campbell’s article is a tour de force. By showing that the context of commandeering is the opposite of what many have assumed, he shows that there is serious doubt that the majority opinion in Printz is correct. To be sure, this isn’t a definitive point; one could still construct an originalist argument under which commandeering is constitutionally suspect, but it will be much more strained.
That leaves the question of whether we should be heartened or troubled to learn that the Supreme Court can make historical mistakes. Obviously we would prefer that the Court not make mistakes, though I am not sure that the optimal error rate is zero.
On balance, I would vote for heartened. It suggests that there is sometimes something actually falsifiable going on, and therefore that originalism is not infinitely malleable. That said, I doubt that contemplation of whether to overrule a precedent happens in a principled way — by originalists or non-originalists. That, I find more troubling.
2. It is also interesting to think about why the Federalist is such a totemic item of legal citation and whether it should be. Of course the standard answer is that it is important not to exaggerate the importance or neutrality of the Federalist and that academics ought to look at all relevant historical materials, and not privilege the Federalist simply because it is convenient. (I should also flag Seth Barrett Tillman’s clever essay pointing out the obvious errors in The Federalist.)
And while I think that standard answer is basically correct, I do have two hypotheses about why the Federalist occupies a privileged place in modern historical and quasi-originalist discourse. First, the Federalist is accessible: the facts that it is easy to buy, easy to carry, and that you could read most of it in a weekend are all superficial. But these things matter in determining what items get cultural significance.
Second, the Federalist is consistent with a simple version of popular sovereignty and original public meaning: written by defenders of the document to persuade people to ratify it during an important ratification convention, it is easy to see it as constituting a set of promises from the framers that led to the Constitution ultimately becoming law. That story is exaggerated, of course, but I do suspect it has contributed to the Federalist’s canonization.
UPDATE: Here is Eric’s less optimistic account.