Deconstructing and Reconstructing Constitutional Rights: Jacques Derrida’s General Strategy of Deconstruction and the Constitutional Rights of Canada’s Indigenous Peoples

For roughly three decades, Jacques Derrida’s general strategy of deconstruction was a trendy interpretive methodology in the American legal academy. The now-faded U.S.-based movement demonstrated how that strategy undermined the ability of any interpretive method to definitively ground legal meaning. Attempts to resolve that crisis proved self-defeating because they fell back on the same interpretive foundations that the strategy destabilized. Following those failures, deconstruction fell out of fashion within the American legal academy. In Canada, the movement never even achieved fleeting popularity. The problem is that there remain key unanswered questions: how can one speak of a stable, predictable, and acceptable legal order and recognize and combat injustice after the deconstruction of law?This dissertation will answer those questions through a more faithful reading of Derrida’s work. In doing so, this thesis advances three broad reasons for reviving, expounding, correcting, and improving the American approach. First, Derrida’s work shows how the crisis is worse than supposed, going beyond the liberal ideology and rights examined by his American adherents, to the very structure of meaning, language, law, and rights. Second, the deconstruction shows how relatively stable norms of interpretation enable comparatively determinate legal meaning. Third, deconstruction has an inbuilt impetus to pursue infinite justice, which can guide constitutional interpretation. That drive pushes interpreters to reconstruct deconstructed rights in ways that shape new, more just relationships in every given case. An intersectional-deconstructive perspective, which recognizes and resists the paradoxical matrices of oppression in concrete circumstances, helps apply that goal in practice. This thesis shows how that approach can be used to pursue more just interpretations of the constitutional rights of Canada’s Indigenous peoples. In all, the general strategy of deconstruction has enduring critical, descriptive, and constructive value. For those reasons, deconstruction has continued relevance for the interpretation of Canadian constitutional rights. More broadly, the strategy is still important to the interpretation of constitutions, rights, and laws. At a fundamental level, deconstruction remains germane to the study of meaning and interpretation. Accordingly, the general strategy is more powerful, wide-sweeping, and accurate than the sympathetic U.S.-based legal scholarship supposed.

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