Legal history and intellectual history 43 of the typical negro; the most persuasive justification for the institution of slavery; and whether Christianity or the Code of Honor provides the best moral guide for a white man.-'’^ The popularity of the contextualist method among legal historians is likely, if anything, to increase in the immediate future. Many historians’ plans for future projects draw on the contextualist approach. And two recent manifestos seeking to shape the direction of work in the field implicitly commend contextualist inquiry. C Textualism’s impact upon legal history has thus far been less substantial, but its currency and influence appear to be increasing. Only one American writer - Gary Peller - has explicitly invoked the textualist approach when examining the development of legal doctrine or thought. In an essay unabashedly titled, “The Metaphysics of American Law,” Peller begins by outlining a postmodern hermeneutic theory that closely tracks the arguments of the textualist intellectual historians.It is fundamentally misleading, Peller insists, to conceive of legal discourse — or indeed any form of discourse - “as a neutral medium which merely reflects social events”; the words and concepts we employ, in law or ordinary conversation, limit what See WilliamFisher, “Ideology and Imagery in the Law ot Slavery,” Chicago-Kent Law Review68 (1993): 1051, revised and expanded version forthcoming in Paul Finkelman, ed.. The Law of Slavery (1997). A similar methodology underlies WilliamFisher, “Ideology, Religion, and the Constitutional Protection of Private Property: 1760-1860,” Emory LawJournal 39 (1990): 65. See Richard Ross, “The Legal Past of Early NewEngland: Notes for the Study of Law, Legal Culture, and Intellectual History,” William and Mary Quarterly, 3d ser., vol. 50 (1993): 40 (calling for an “intellectual history” of law m the colonial period that would explore “how broad-scale changes in intellectual moods and foundational concepts” - such as “changing ideas of human nature, the rise of concepts of privacy and gentility, the slow unrayeling of prejudices against innovation, and the vicissitudes of crucial metaphors, such as the notion of blanace in the natural, intellectual, and political world” — “affected the legal system and colonists’ understandings of the law”); Nathaniel Berman, “Modernism, Nationalism,” supra n. 54, 354 (seeking to “transformthe current practice of international legal history” through an exemplary contextualist inquiry). A recent essay by Saul Cornell might be counted as an exception to this generalization. See “Moving Beyond the Canon of Traditional Constitutional History: Antifederalists, the Bill of Rights, and the Promise of Post-Modern Historiography,” Law & History Review 12 (1994): 1. But Cornell’s methodology is less innoyative than his title suggests. Some aspects of Textualismspecifically, impatience with the search for authorial intent and sensitivity to the ways that “nodes of contradiction” within canonical texts provided “the cultural space for resistance and contestation,” ibid., 22 - do inform his account of the Antifederalists. But other aspects of Textualismmost importantly, an appreciation of the semantic ambiguity of texts and the tense relationship between presentism and fidelity to the past - are notably absent. On balance, the essay is best seen as another manifestation of the increasingly dominant contextualist methodology reviewed in the previous section. Peller, supra n. 47.
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