This article addresses the past record and future prospects of the relationship between constitutional law and social justice. The exploration of this relationship is framed as a question of the role that constitutional law has played in protecting and advancing a substantive, rather than merely majestic (i.e., formal), conception of equality. After providing an overview of the current state of income deprivation and inequality in Canada, and the implications of this for a constitutional conception of equality, a variety of areas of constitutional law are examined. It is argued that, across these areas, constitutional law has regularly been willing to facilitate governmental action aimed at improving substantive equality, but has only rarely provided protection against governmental retrenchment and, especially in relation to Aboriginal rights, has not always acknowledged or accommodated the effect of already existing substantive inequality. Overall, while constitutional law has taken some important steps to protect and advance substantive equality, the steps have been small and so progress has been restrained and cautious. Looking ahead, and focusing on the Charter, it is argued that, if constitutional law is to play a more meaningful role in advancing substantive equality, then it needs to pay heed to the danger of being caught in a jurisprudential trap that threatens to curtail, if not undo, the modest support for substantive equality that has been shown so far.
"The Past and Future of Constitutional Law and Social Justice: Majestic or Substantive Equality?."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.