Toward the Unity of Constitutional Value—Or, How to Capture a Pluralistic Hedgehog

L’honorable M^me Deschamps, vice-doyen Gold, Mesdames et Messieurs, chers collègues, chères collègues, chers étudiants, chères étudiantes. I wish to thank you all for taking the time this evening to come and listen to this lecture. Je voudrais exprimer mes sincères remerciements à M^me Deschamps pour ses généreux mots d’introduction. C’est pour moi un honneur d’être présenté par une des plus grandes juristes du Canada, une personne dont le dossier en matière de service public est aussi vaste. This evening I will defend a view of the constitution that is premised upon the ideal of normative unity. Evidence of this view may be found, I think, in the reasons authored by M^me Deschamps when she was a justice of the Supreme Court of Canada—in particular in her insistence upon critical reflection about long-established cases and doctrine in light of underlying or unwritten constitutional principles or values. My students present here this evening are, I hope, mentally listing the names of the relevant cases right now. M^me Deschamps, je vous remercie d’avoir pris le temps d’être ici ce soir. Cela signifie beaucoup pour moi. I wish to thank also Associate Dean Gold for his kind introductory remarks. Although he is unable to be here this evening, I wish also to thank the Dean of the Faculty of Law, Robert Leckey, for the tremendous support that he has shown me since I arrived at McGill last summer. Finally, I am thankful for the presence this evening of my parents, Wynn and Mary Margaret Walters, and my spouse, Gillian Ready. We are gathered this evening within the traditional territory of the Kanien’kehá:ka people, a place that has long been a meeting point for other nations too, including the Anishinaabe and especially the Algonquin peoples. Indeed, this reality is one aspect of the themes of unity and pluralism that I want to address this evening. I return to this point in a few moments. I am delivering the second inaugural F.R. Scott lecture. I want to start by going back to the first one, given by my predecessor, Rod Macdonald, on February 16, 1996. On that occasion, the Scott Professor reminded those present of the many ways in which Frank Scott had been, as Rod put it, “a “great Canadian”. That Frank Scott could win the Governor General’s Award twice, once for his work in constitutional law and once for his work as a poet, is evidence of his unique capacities and contributions to public life. Rod said that it was an “honour” to deliver his lecture but also a “daunting task”, for Frank Scott was “an intellectual giant; [and] I do little more than walk in his shadow.” Of course, at this time Rod Macdonald was already one of Canada’s distinguished intellectuals himself. I will not list his accomplishments now—that would take more time than we have. But I do wish to register for the record my own view that Rod was beloved at McGill and throughout the legal academy in Canada and beyond because of his generous and original spirit, because of his ability to infuse within his students and colleagues a sense of wonder and optimism about law’s potential for good, and because of his steadfast refusal to accept orthodoxy as authority. If Rod Macdonald was walking in the shadow of Frank Scott, what am I doing? If it possible to walk in the shadow of a giant who walks in the shadow of a giant, then that is what I am doing. Rod may have been appointed to the Scott Chair because of his achievements, but I …