Legal history and intellectual history the draftsmen.Lessig’s response to this insight is to propose a method (which he describes as “translation”) for “neutralizing” the effect of changingcontext. The merits of that strategy need not detain us. For our purposes, the main point is the Contextualism, like the other three styles of modern intellectual history, in the end undermines rather than advances the originalist venture.'"^' (8) Play. Fromthis standpoint, history - like all interpretive enterprises - is a source of amusement and sensual pleasure. It can and should resemble (as Roland Barthes says of literary criticism) erotic play.^"*- It can, in other words, stimulate and amuse both writer and reader. One might think that the extent to which a piece of history advances this end would depend more upon the personality and skills of the historian than on the methodology she employs. Agreat historian should be able to entertain, tease, or seduce her readers or herself using any language or style. But that prediction is undercut by a survey of the field; at least within the world of legal history, there are very few examples of Structuralist or Contextualist essays that make you sit up and smile.Onreflection, that is not surprising. Playful historians are more likely to be drawn to - or to have been shaped by — the postmodern aesthetic shared by the Textualist and New Historicist approaches. Those are the methodologies most attuned to irony, most sensitive to the subtle interaction of arguments, most prone to punning and unexpected juxtaposition - in short, most playful. The more ponderous and dour styles characteristic of Contextualism and Structuralism, by contrast, would hamper the ability of their adherents to participate in the analytic dance. The compatibility of Textualism and play - as well as the risks associated with history in this style - are suggested by an analogy recently drawn by Dominick LaCapra between deconstructionist interpretation and jazz. Ibid., 1178. '•*0 Ibid. For an effort to apply this method, see Treanor, supra n. 137, 856-80. A way less conventional than originalismin which legal history might be harnessed by scholars and judges centrally concerned with current interpretations of constitutional texts has recently bv sketched bv Cass Sunstein. In Sunstein’s view', the job of a constitutional historian is “to make the best constructive sense out of historical events associated with the Constitution” — specifically, bv creating a narrative that “placejs] a (stylized) past and present into a trajectory leading to a desired future.” Sunstein, supra n. 88, 602, 605. The posture toward the past that Sunstein commends - a mixture of respect for events as they happened and a forthright effort to interpret and arrange those events in a pattern that points toward doctrinal reform that he (for independent reasons) deems desirable — seems to resemble the deliberately compromised stance advocated by textualist historians. That parallelismsuggests that Sunstein (and other legal historians who share his aspiration) could derive inspiration and support from LaCapra, Harlan and their compatriots. But, then again, maybe not. The presentist elements of textualist intellectual histories tend to be harshly critical in tone, concerned primarily with highlighting injustice. Sunstein, by contrast, aspires to see the past in the best possible light. In short, the similarity of their projects may be only superficial. See Roland Barthes, The Pleasure of the Text (NewYork: Hill &Wang, 1975). One of the few may be Duncan Kennedy’s watch-my-dust Structuralist analysis of Blackstone’s Commentaries, supra n. 39. 65 140
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