Abstract

A multi-faceted debate over constitutional interpretation dominates contemporary legal philosophy. Legal scholars dispute whether courts should draw constitutional meaning from the literal text, framer intent, or normative conceptions of rights and justice. Yet even those who profess to adopt literalism or intentionalism work primarily from abstract conceptions of political morality. The interpretive debate, in sum, is less interpretive than political, as jurists purport to inform courts how to reach "right" outcome in adjudication by deducing constitutional meaning from abstract conceptions of political morality. Against this trend, which I call "externality", I recommend "internality", where adjudication stands alongside art, music, architecture, and historical writing as a craft-bound excellence with objective conditions of mastery tied to the internal demands of its practice. Influenced by the later philosophy of Wittgenstein, I argue that legal judgment is so tightly interwoven with judicial practice that we cannot disentangle the results of adjudication from its practice. As a result, I claim there is no authoritative access to constitutional meaning except as the product of adjudication, and no means to evaluate that product except by internal investigation of judicial practice. This internalist point of view shows externalism to be irrelevant and harmful to the practice of constitutional adjudication. It is irrelevant in that the externalist search for constitutional meaning outside the practice of adjudication conflicts with the craft-bound nature of judging with and ignores the conditions of adjudicative excellence which regulate judicial practice. And it is harmful to the principled, coherent development of constitutional doctrine in that externalist theorists often advocate wholesale overruling of precedent in order to rectify "wrong" judicial outcomes, as measured against their external criteria. Against this pernicious aspect of externality I argue that a wrong outcome is neither a necessary nor a sufficient condition for overruling precedent. Overruling is a remedial principle serving adjudicative, not constitutional coherence. That is, whether a particular constitutional decision is justified depends only on whether it satisfies the conditions of adjudicative excellence, not whether its result coheres with some notion of constitutional meaning external to judicial practice