Waluchow’s Theory of Constitutional Interpretation from a Rhetorical-Argumentative Point of View

This chapter argues that the theory of judicial interpretation standing behind Wil Waluchow’s philosophy of judicial review can best be understood with the tools of rhetorical argumentation theory. Waluchow directs supreme court judges to use a common law approach when they decide constitutional cases, but he is aware that constitutional precedent will not always be sufficient to determine the required decision in a case. If this happens, judges should turn to their Community’s Constitutional Morality (CCM) and decide according to it. CCM is determined by analyzing the moral commitments a community has made through its legal and political actions and formulating them into a coherent whole. I argue that the construction of CCM follows the same process as the construction of idealized audiences which are utilized in rhetorical branches of argumentation theory to evaluate reasoning. I then go on to develop the rhetorical theory of judicial reasoning that, I believe, should stand behind Waluchow’s approach to judicial review.