Xavier Scott

The ‘living tree’ metaphor has become a central way of understanding constitutional interpretation in Canada. It also serves as the foundation of Wil Waluchow’s important work on a ‘common law’ conception of constitutionalism. Yet despite the clear normative appeal of the metaphor, for a progressive and adaptive constitutional order, we believe it has some significant moral, political, and legal presumptions and limits. We argue that such limits and presumptions become apparent when examining Canada’s commitment to reconciliation between settler institutions and Indigenous peoples, which reveal the metaphor to be more of an obstacle than an aid to reconciliation. We suggest we are likely better off suspending use of the metaphor (and its associated constitutional constraints) and must instead look for alternative constitutional perspectives. In particular, Indigenous conceptions of nation-to-nation partnerships and Two Row Wampum diplomacy provide valuable sources for rethinking settler-Indigenous relations in Canada.

This article examines the British colonial theft of Indigenous sovereignty and the particular obstacles that it presents to establishing just social relations between the colonizer and the colonized in settler states. In the first half, I argue that the particular nature of the crime of sovereign theft makes apologies and reparations unsuitable policy tools for reconciliation because Settler societies owe their very existence to the abrogation of Indigenous sovereignties. Instead, Settler states ought to return sovereignty to the land’s Indigenous peoples. In the second half of this paper, I take up some of the practical questions of how this might be done and anticipate a number of objections. Giving up sovereignty would not mean dispossessing the millions of colonists who currently reside in these countries of their homes and property – but it does mean rethinking the constitutional makeup of a country and how that serves to benefit the different peoples who make their homes there.

This dissertation examines the evolving relationship between religion and the state in political philosophy. I begin with an examination of what religion is. I argue that religion is not primarily a belief system about metaphysics but rather a social system, which is better understood in terms of politics than science. In the second chapter, I look at the origins of secular political philosophy in early-modern Europe and contrast it with medieval political theory. I note that this transition does not mark a separation of church and state, but in fact accomplishes the expropriation of religious functions by the state. Therefore, I argue that the modern, secular state should not be mistaken for a neutral arbiter between competing religious perspectives. The modern state is itself a very interested party in how religion is expressed, understood, and in which religions are supported by the state. In my third chapter, I look at the rise of secular ideologies in the context of what Charles Taylor calls the modern moral order. I note that secular ideologies have attempted to reform society on the basis of ideals that avoid taking a stand on questions of religion. I question whether societies are capable of functioning on the basis of principle alone and note the tendency of liberal and communist states to adopt different forms of nationalism. I show that where universalist ideologies were once on the rise and spreading across the globe, they are increasingly met with the particularisms of culture and religion. Finally, I return to the topic of religion in contemporary political life. I examine four features of religion that have come under attack. Each of these problematic features of religion, I argue, also preform salutary functions in society. I show that this is particularly the case in societies where secular institutions are failing to provide institutional support or a sense of belonging to their members. By recognizing the complexity of religions interaction with the secular state, we can develop more nuanced approaches that are able to avoid the extremes of xenophobia and cultural relativism.