Chapter 5: The Role of the Person in Modern Constitutional Law: How State-inflicted Harms Become Personal

This chapter examines the role of the person in modern constitutional law. Through a reading of two Canadian Supreme Court decisions – RWDSU v. Dolphin Delivery and R. v. Malmo-Levine – it suggests that while the person is the subject of modern constitutional law’s protective gaze, it can also sometimes function as a scapegoat, taking the fall for harms engineered in part by the state (harms, in other words, that really ought to attract constitutional scrutiny given constitutional law’s orienting preoccupation with ‘state action’). Rather than dismissing these gestures as a result of defective legal reasoning in the cases examined, the chapter suggests that the selective erasure or forgetting of state action is in fact essential to the production of the suffering subject – the constitutional person – that modern constitutional law is supposed to protect, precisely, from the state. In effect, then, the chapter claims that modern constitutional law produces the person by ignoring or at least downplaying the role of the state in certain contexts and, hence, by reneging intermittently on its primary task: the application of legal scrutiny to coercive state action.