Towards the 21st Century Constitutionalism?

“There is no material quality which correlates with the formal rights, and there is constant tension between what the formal constitution requires and what the material constitution actually is”

Dr. Jeffrey Meyers’ research is concerned with the difference between the formal legal order of the Canadian constitution and what some have termed the material constitution, comprised of the everyday reality individuals face in terms of their particular life conditions. The material constitution speaks to the ability to access not only the necessities of survival, but also the basic resources required for genuine equality of opportunity and human thriving. Here is where a basic tension emerges.

“The Charter as a formal matter guarantees equal rights to all Canadians, but it is a material fact that some Canadians live without running water while others live in mansions. There is no material quality which correlates with the formal rights, and there is constant tension between what the formal constitution requires and what the material constitution actually is,” Dr. Meyers explains.

The distinction between these two constitutions derives from the thought of American philosopher Michael Hardt and Italian philosopher and constitutional theorist Antonio Negri. Dr. Meyers’ project brings to an analysis of the changing nature of Canadian constitutional law and practice conceptual tools and insights derived from these and other thinkers within the European critical left tradition. His work has both a legal historical and theoretical dimension, and builds on three case studies initially developed in his doctoral research: the 1997 APEC Affair and reference power and the emergence of ‘Aboriginal Law’ as a subset of constitutional law.

Each of these case studies illustrates a tension between the material constitution of contemporary life and its formal representation in the Charter. For many, Dr. Meyers emphasizes, poverty, illness and violence are the material reality and the high sounding words of the Charter are just that – words. Today more so than ever, he argues, when we speak of access to justice in Canada, this is precisely the gap to which we are pointing.

Dr. Meyers’ historical research begins with the near past in the 1997 APEC affair at UBC campus. The aftermath of this incident, at which police pepper sprayed and arrested numerous student protesters, resulted in a very high-profile political scandal that implicated Prime Minister Jean Chrétien’s office with improperly directing police to remove legal protesters from the line of site of visiting foreign dignitaries. The material reality of protest policing and the formal reality of the rule of law diverged.

“Two public inquires followed on the incident, one of which dissolved early on as a result of allegations that the government had been leaning on the process,” Dr. Meyers explains. “The government seemed more interested in preserving the sensibilities of delegates – some of whom were heads of states and governments with abysmal human rights records and few democratic credentials – than protecting the rights of students to exercise free speech.”

Dr. Meyers’ research also considers the uniquely Canadian operation of the reference power at s. 53 of the Supreme Court Act (1985). Persuant to the Act, Parliament may take a speculative question of law and request an opinion from the Supreme Court of Canada. In most other jurisdictions, emphasizes Dr. Meyers, this is not possible. For instance, he notes that the US Supreme Court will not hear a case unless it is a live controversy involving actual litigants and an actual dispute. By way of contrast, Dr. Meyers points on the Canadian side to the example of the Supreme Court of Canada’s decision in the Reference Re Secession of Quebec [1998], which came in the aftermath of the 1995 Quebec sovereignty referendum. Facing an existential political crisis in a possible dissolution, Dr. Meyers explains, Parliament sought a legal solution. In the Canadian context, then, the fact that political issues can be referred directly for legal decisions, which although not binding are still very influential, has undermined any claim that politics represents an autonomous sphere, distinct from law. Once again the distinction between the formal constitution, which holds law and politics apart, and the material constitution, in which there is actually a close nexus between the two, is laid bare.

In the final case study, Dr. Meyers notes that while aboriginal law has emerged and developed as a distinct species of constitutional law in Canada, the gap between formal recognition of First Nations peoples in the Charter and the material difference between the rates of incarceration, life-expectancy and access to resources of First Nations compared to non-aboriginal Canadians is striking.

“The Constitution recognizes the inherent dignity of First Nations by protecting them in Sections 25 and Sections 35, forms of recognition that have symbolic meaning and resonance. However, there is a sense that we are too complacent in thinking that we only need formal fixes, overlooking the fact that the material realities are often different (such as the rates of diabetes, suicide, or the availability and quality of medical care between Aboriginal and non-Aboriginal Canadians). There is a huge gap despite the formal guarantees of equality, once again illustrating the difference between the formal constitution and the material constitution of reality”, Dr. Meyers adds.

The aim of Dr. Meyers’ research, which he hopes to publish soon as a book, is to encourage critical students, lawyers, judges and law professors to think beyond the formal constitution. “I want them to reimagine what a democratic politics could look like outside of the rubrics which we became so used to – and what better time than to do that now when the old model is starting to creak under pressures of a changing world,” Dr. Meyers explains.

Dr. Jeffrey Meyers

Dr. Jeffrey Meyers is a Lecturer at the Allard School of Law. He graduated from UBC with a B.A. in English and Political Science in 1999, going on to complete his BCL/LLB degrees from McGill University in 2004. In 2007, he earned an LLM from the LSE, and completed his PhD there in 2012. Dr. Meyers is a member the Bar of the State of New York and the Southern and Eastern Districts of New York (Federal Courts). Dr. Meyers is also a member of the Law Society of British Columbia. Dr. Meyers’ research is at the intersection of law and adjacent disciplines such as philosophy, political, social and literary theory. His work seeks to unpack and problematize some of the basic conceptual binaries which are taken for granted in western legal thought including familiar distinctions between 'private' and 'public', 'law' and 'politics' and 'self' and 'other'.

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