Uncertainty persists regarding the meaning and application of the constitutional right of substantive equality, due in part to the focus on assessing the very nebulous and open-ended concept of human dignity. After reviewing two recent equality rights cases that illustrate the continued unpredictability of outcomes, the author examines constitutional equality from a more macro-historical perspective. In particular, she highlights how conceptions of constitutional equality are integrally connected to changing understandings of the role of the state. Tracing the shift from formal to substantive equality, she suggests that the current formulation of substantive equality resonates best with the ideological and governance assumptions of the post World War II social welfare state. In the context of neo-liberal shifts in government regulation and emerging new forms of social governance, the author maintains that we need to go beyond the effects-based analysis of substantive equality, which focuses on the instrumental and redistributive role of the state, to examine the process-based and institutional dynamics of the reproduction of social inequality. A constitutional conception of inclusive equality, attentive to both the effects and the processes of inequality, is outlined, including an expanded list of contextual factors for assessing equality rights violations. The author concludes by emphasizing the importance of democratic accountability, transparency and fairness in equality rights adjudication.
"Inclusive Equality and New Forms of Social Governance."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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