Constitutional Adjudication as a Craft-Bound Excellence

moral values and should be "interpreted in a normative way, so as to provide the best theory of the values of the [American constitutional] tradition."' ' t 6 He thus directs judges to read the Constitution according to the "best moral and political theory,"'' 8 7 which he sees as a combination of John Locke and John Rawls.1 88 The list could go on, as the variety of externalist theories is rich and diffuse. Yet even this brief survey suffices to show that while the many externalist characterizations of constitutional vision and method vary markedly, they share certain foundational assumptions. These assumptions mark from the outset the sharp contrast between the practices of externalist jurisprudence and adjudication. First, as I have stressed throughout this essay, the most fundamental difference between externalism and judicial practice is one of orientation: externality or internality. Legal scholars who evaluate judicial decisions on the basis of criteria external to the practice of adjudication engage in a cognitive enterprise fundamentally different than that of deliberating over and rendering decisions in the restrictive context of concrete disputes arising within judicial practice. Second, externalist theory is essentially result-oriented, whereas adjudication is practice-oriented. Externality emphasizes, theoretically and critically, the outcomes reached in adjudication; while viewed critically from the standpoint of internality, those very same judicial decisions are justified not on the basis of their results, but insofar as they satisfy the conditions of adjudicative excellence-impartiality, reasoned explanation, articulative boundaries, coherence, and workability. Third, externalist writers rely heavily on abstract generalities. They posit, for use in adjudication, normative standards of justice, rights, or political morality which take the form of abstract general rules or principles known a priori. Courts, to the contrary, often expressly reject such abstract essentialist definitions in favor of meanings worked out in practice. Fourth, externalist jurists work from within a rationalist paradigm where particular constitutional provisions are said to have determinate meaning accessible by deductive reasoning from the predetermined abstract general rules and principles. 89 This rationalist model stands at odds with judicial practice, where legal meaning is 186. Richards, Toleration and the Constitution, 30. 187. Ibid. 188. See Richards, Foundations of American Constitutionalism; Richards, Toleration and the Constitution; Richards, "Human Rights as the Unwritten Constitution: The Problem of Change and Stability in Constitutional Interpretation," University of Dayton Law Review 4 (1979): 295-303. 189. In this respect, externalism resembles nineteenth-century Legal Formalism. See H.L.A. Hart, "Jhering's Heaven of Concepts and Modem Analytical Jurisprudence," in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 265, 269 (describing the formalist model of adjudication in terms of logical deduction from fixed general rules); Hart, The Concept of Law (Oxford: Oxford University Press, 1961), 124-27 (same). See generally, Douglas Lind, "Free Legal Decision and the Interpretive Re-Turn in Modem Legal Theory," American Journal of Jurisprudence 38 (1993): 159-88. [Vol. 6: 353 26 Yale Journal of Law & the Humanities, Vol. 6 [1994], Iss. 2, Art. 9 http://digitalcommons.law.yale.edu/yjlh/vol6/iss2/9