William W. Fisher III 64 ers) of the Fourteenth Amendment would have responded to problems that have confronted courts in the late twentieth century - such as whether public schools should be desegregated,^^* whether the Bill of Rights should be applied against the states,*^- or whether Congress should be permitted to proscribe private discrimination in places of public accommodation.*^^ Instead, we should first ascertain the issue with which the framers of the amendment were themselves centrally concerned and then try to determine what their views on that issue were.*^'^ Applyingthis method, he contends that the issue that preoccupied the framers was “whether the national or the state governments possessed primary authority to determine and secure the status and rights of American citizens.Their response to that question was that, because “national citizenship was primary and state citizenship derivative, ... Congress possessed primary authority to secure the civil rights of United States citizens.”'^^ A similarly contextualist approach has recently been employed by William Treanor in identifying the original understanding of the “takings” provision of the Fifth Amendment. On reflection, however, this strategy seems problematic, even self-defeating, as an adjunct to originalist constitutional interpretation. The central premise of the contextualist style of intellectual history is that the meaning of a text depends on its context. As Lawrence Lessig has pointed out, thoroughgoing acceptance of that principle is incompatible with a strong from of originalism. Because the “context of writing” (the “range of facts, or values, or assumptions, or structures, or patterns of thought” that gave significance to the words employed by the draftsmen of a constitutional provision) is often sharply different fromthe “context of reading” (the analogous circumstances surrounding the efforts of contemporary judges to interpret those words), it is senseless to attempt mechanically to apply to contemporary problems the intentions of 137 138 See, e.g., Kelly, “The Fourteenth Amendment Reconsidered; The Segregation Question,” Michigan Law Review54 (1956): 1049. See, e.g., Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights?,” Stanford Law Review 2 (1949): 5; William Crosskey, “Charles Fairman, ‘Legislative History’ and the Constitutional Limitations on State Authority,” Univ. of Chicago Law Review 22 (1954): 1. See, e.g., Avins, “Fourteenth Amendment Limitations on Banning Racial Discrimination: The Original Understanding,” Arizona Law Review 8 (1967): 236. Robert J. Karczorowski, “Revolutionary Constitutionalismin the Era of the Civil 3X'ar and Reconstruction,” N.Y.U. LawReview61 (1986): 863. Ibid., 866-67. Ibid., 867. William Michael Treanor, “The Original Understanding of the Takings Clause and the Political Process,” Columbia Law Review 95 (1995): 782. For a general defense of the contextualist method when determining the original meanings of constitutional texts, see Martin Flaherty, “History ‘Lite’ in Modern American Constitutionalism,” Columbia Law Review 95 (1995): 523, 554. 132 137 Lawrence Lessig, “Fidelity in Translation,” Texas Law Review 71 (1993); 1165. 138
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