The Shifting Canon of Constitutional Equality

Equality as an ideal, a principle, a value, and a right permeates the canons of contemporary constitutionalism. The recognition of individuals as persons of equal worth and liberty (moral equality) is the working premise of a liberal constitutional democracy. At the same time, the constitutional mandate to advance or promote the conditions of a particular disadvantaged social group (or individuals belonging to it) violates the principle of equal treatment. The constitutional canon on equality has long been shaped by such inherent tensions. The new global wave of autocratization brought restrictions on the rights of women and sexual and religious minorities, highlighting the continuing relevance of debates that are often older than written constitutions. The chapter traces the shifting canon of constitutional equality across three scenarios that provide comparative insights into the canon and the counter-canon of equality and non-discrimination jurisprudence. The cases focus on the constitutional justification of the doctrine of ‘separate but equal’, disability rights, and gender citizenship, also introducing the challenge of intersectionality and affirmative action.