Waluchow on Reasoning with the Morality of the Community

This chapter discusses Wil Waluchow’s recent work on the legitimacy of judicial review. More specifically, the chapter assesses Waluchow’s claim that judicial review under bills of rights can be a democratically legitimate practice so long as judges base their interpretation of constitutional rights on the “community’s constitutional morality”. Judges, according to Waluchow, must take care to respect the community’s constitutional philosophy instead of imposing their own political views on the community. The chapter recognizes the merits of Waluchow’s views but also indicates some ways in which they should be developed and supplemented. For these purposes, the chapter relies on a distinction (proposed by Joseph Raz and elaborated by John Gardner) between reasoning about the law and reasoning with the law. The chapter proposes an analogous distinction between reasoning about and reasoning with the constitutional morality of the community.