Legal, llistory and inthli.ectual history 63 lihood is small that an intellectual/legal historian of any of the four varieties would identify and celebrate as an enduring cultural tradition Americans’ commitment to the “‘hegemony of the individual’ over nature, government, and the community.”*-^ (7) Assist contemporaryjudges in construing constitutional texts. During the past fifteen years, an important group of scholars and judges, disturbed by the dramatic innovations in constitutional law engineered by the Supreme Court under Chief Justices Warren and Burger, has called for a return to an older method of constitutional interpretation, in which answers to difficult questions are derived fromascertainment of the “original intent” of the draftsmen (or ratifiers) of the constitutional provision in question.Assuming, for the sake of argument, that some form of “originalism” is both practicable and desirable as a way of applying the Constitution to contemporary problems, can any of the new forms of legal history assist in the enterprise? None of the various efforts to date by historians to ascertain the original understandings of constitutional provisions has employed, explicitly or implicitly, the methodologies of Structuralism, Textualism, or New Historicismand for good reason. The insistence, shared by all three of those styles of historical inquiry, upon the slipperiness of language and the impossibility of loeating the intent of the author of a text plainly makes themill suited for an originalist project. The same is not true, however, of Contextualism. The contextualist method - Quentin Skinner’s version of it, in particular - asserts that, by attending carefully to the discourse out of which a text grows (the vocabularies available to its author, the concepts and assumptions he took for granted, and the issues he considered contested), one can (and should) ascertain the author’s intent. If one can determine the original meaning of The Prince or The Second Treatise using this approach, why not the Contract Clause? A few of the many efforts to ascertain the original understanding of const!- tutional provisions have adopted precisely this tactic. For example, Robert Kaezorowski has argued that it is unhelpful to ask how the drafters (or ratifiIbid., 140. See, e.g., Edwin Meese III, “Construing the Constitution,” University of California at Davis Lav Reviev 19 (1985): 23-26; Antonin Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review57 (1989): 849; Blanehard v. Bergeron, 489 U.S. 87, 97-100 (1989) (Sealia, J., eoneurring); Robert Bork, The Tempting of America: The Political Seduction of the Law (New York: Eree Press, 1990). Eor a careful study of the revival of originalism, see Morton J. Horwitz, “The Supreme Court, 1992 Term, Foreword: The Constitution of Change: Legal Fundamentality without Fundamentalism,” Harvard Law Review 107 (1993): 30. Skepticismon this score is expressed in Paul Brest, “The Misconceived Quest for the Original Understanding,” Boston University Law Review 60 (1980): 204; Ronald Dworkin, “The Forumof Principle,” New }'orlc University Law Review56 (1981): 469; and Mark Tushnet, “Following the Rules Laid LOown: A Critique of Interpretivismand Neutral Principles,” Harvard Law Review 96 (1983): 781. For a general survey of the competing arguments, see Daniel A. Farber, “The OriginalismDebate: A Guide for the Perplexed,” Ohio State LawJournal 49 (1989): 1085. 1,^0
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