Will Baude and Eric Posner continue their account of their originalism course. I like this thought from Will Baude on Printz v. United States:
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.
Printz, I do think, is a doubtful opinion, and as an original matter the rule it announces likely would have been thought unnecessary in pre-Seventeenth Amendment days.
Posted at 9:30 PM