Settling on Words: Sovereignties, Borders, and Transformative Constitutionalism in Canada

Abstract

This article analyzes Canada’s Constitution as a contested “borderland,” a site where competing claims to sovereignty, identity, and moral legitimacy intersect and often clash. While the Charter of Rights and Freedoms promises inclusivity and equality, I argue it remains fundamentally embedded within a settler-colonial order that persistently marginalizes Indigenous peoples. Treaties, when understood as dynamic and relational borders, challenge the Crown’s assertion of absolute authority and underscore the need for constitutional transformation grounded in justice and what Dwayne Donald calls “ethical relationality,” drawn from the Cree concept of wâhkôhtowin. At the same time, immigrant communities access the Charter as a gateway to rights, even as they enter a legal system built upon the dispossession of Indigenous nations – raising moral questions about legal obligation and inclusion. Drawing on Joseph Raz’s “service conception” of authority, this article offers a philosophical audit of Canada’s constitutional legitimacy. Through a structured application of Raz’s three theses – normal justification, dependence, and pre-emptive force – I show how current legal directives frequently fail to align with the moral reasons of Indigenous and minority communities. Engaging with Indigenous legal theorists such as John Borrows and Dwayne Donald, I advocate for transformative constitutionalism, culminating in a renewed constitutional compact rooted in Willie Ermine’s notion of ethical space. Such a framework, I argue, offers the conceptual and normative tools to reimagine sovereignty and legal authority in genuinely pluralistic terms.

DOI: 10.14712/23363231.2025.7