DEMOCRATIC BOUNDARY PROBLEMS

DEMOCRATIC BOUNDARY

PROBLEMS

1Introduction

Democratic theorists have long assumed an alignment between democratic

and territorial boundaries. This assumption has dictated the demarcation of

the boundaries of the demos, which define who has a right to participate in

democratic decision-making. For example, the right to vote has traditionally

been reserved for the resident citizens of the nation-state. The assumption has

also led to an uncritical acceptance of the boundaries of electoral

constituencies (or electoral districts), which determine the subsets of the

enfranchised population that are eligible to elect a certain number of

representatives for the legislature. These boundaries have historically been

drawn along geographic lines, structuring electoral participation around

geographic districts within the nation-state.

However, the traditional nexus between democratic and territorial

boundaries has recently come under scrutiny, due to globalisation, increased

immigration and digitalisation. First, global challenges, such as climate change

and growing economic inequalities, have highlighted the limitations of

confining democratic politics to the territory of the nation-state. This has

sparked a surge of interest in global and transnational forms of democracy. In

particular, it has prompted a debate on whether decisions regarding climate

change and global wealth inequalities should continue to be mediated through

national governments or whether there should rather be more direct

involvement of virtually everyone around the world in the decision-making

chapter 1

process. Second, an increase in immigration has disrupted the traditional link

between residency and voting rights within the nation-state. This has raised

the question whether expatriates should maintain the right to vote in their

home country and whether resident non-citizens should obtain a right to vote

in their host country. It has also led to a debate on the democratic legitimacy

of immigration and border laws, in which it has been argued that all

prospective immigrants should be included in the decision-making on those

laws. Third, technological advancements have created the possibility of a

“digital democracy”, wherein active participation is no longer bound by

geographic proximity. Technological advancements have also paved the way

for democratic innovations that utilise sortition methods to select participants

from different geographical areas, thereby making engagement in collective

deliberation and participation independent of one’s area of residency.

Examples include lottocratic assemblies and random electoral constituencies.

This PhD dissertation contributes to the literature in political philosophy

that addresses the question whether democratic politics should be conducted

within the confines of a specific geographical area. It consists of two parts,

each consisting of two chapters. The first part explores the relationship

between the boundaries of the demos and the territorial boundaries of the

nation-state, and the second part examines whether electoral constituency

boundaries should be geographically-defined.

1.1 the boundaries of the demos

The first democratic boundary problem addressed in this dissertation concerns

the constitution of the demos or “people” who are entitled to govern

themselves democratically. This problem has practical implications for the

direction that democratic decisions take. For example, if prospective

immigrants were included in decision-making on immigration laws, democratic

states would likely not control their borders by building walls and fences. And

if a democratic decision on the secession of Northern Ireland from the United

Kingdom solely involved Northern Irish citizens, it would be much more likely

Introduction

to pass than if it also included citizens from other regions of the United

Kingdom.

The problem of constituting the demos also presents a dilemma regarding

the legitimacy of democratic governance. The dilemma follows from a purely

procedural understanding of democratic legitimacy. According to this

understanding, the demos can only be legitimately constituted through a

democratic decision and this decision must be taken by a demos that is itself

not disputed (Maltais et al. 2019: 445). The dilemma then unfolds as follows:

Since the demos cannot constitute itself, the democratic decision on its

constitution must be handed over to another democratic body but that

subsequent body can only be legitimately constituted through a democratic

decision which is again made by another democratic body and so forth, setting

in motion an unending sequence of decisions on the constitution of various

demoi. As Kevin Olson (2007: 331) observes, the dilemma is regressive in

nature: ‘There is an infinite regression of procedures presupposing procedures,

each necessary to form the procedure following it.’ As a consequence, it is

impossible to democratically decide who legitimately make up the demos.

Without a solution to this dilemma, democratic theorists have to ‘leave it

to every populus to define [it]self’, as Joseph Schumpeter (1943: 219-220) has

conspicuously suggested. But that is far from desirable. It would effectively

justify historical injustices, such as the disenfranchisement of women in the

18th century, as being consistent with democracy because the dominant group

decided so. Under this logic, any future decision by a majority to

disenfranchise women cannot be discharged as undemocratic. Similarly, the

political exclusion of Black voters in the American South cannot be called

undemocratic. As Robert Dahl (1989: 122) has pointed out, this line of thinking

implies that the ‘demos can be a tiny group that exercises brutal despotism

over a vast subject population.’ It blurs the lines between democracy and

autocracy, rendering the distinction conceptually, morally, and empirically

meaningless. Below, I explore various approaches to the dilemma. The

approach that I take in this dissertation makes use of principles of democratic

inclusion to solve the dilemma and to draw the boundaries of the demos.

chapter 1

Additionally, I provide an overview of the ongoing debate concerning these

principles. After outlining the current state of the political philosophy literature

on the legitimate constitution of the demos, I conclude by discussing the

contribution that the two chapters in the first part of this dissertation make to

that literature.

1.1.1 Circumventing or Asserting the Dilemma

Some democratic theorists consider it impossible to solve the dilemma

concerning the legitimate constitution of the demos on the basis of democratic

standards (e.g., Dahl 1970: 45; Honig 2007: 1; Whelan 1983: 13). They claim

that democratic theorists have to accept that territorial and, relatedly,

democratic boundaries are determined by a history of morally arbitrary forces

(Näsström 2003: 819). As Carmen Pavel (2018: 319) elegantly put it, they are

‘but arbitrary lines in the sand, whose contours have been changed by the

shifting winds of historical accident, the arbitrary whim of powerful nations,

and wars of conquest and colonialism.’ If the dilemma cannot be solved, two

approaches to the dilemma remain: circumventing or asserting it.

The dilemma can be circumvented by arguing that the boundaries of the

demos should not be submitted to the demands of legitimacy. Following this

approach, we simply have to accept the boundaries that we have, as any

changestothoseboundarieswouldbeequallyarbitrary,andweshouldproceed with

questions of legitimacy and justice within existing boundaries. This approach

assumes a separation between the forces of history and the subjects of

legitimacy, such that questions of legitimacy begin where history ends. It has

been endorsed by several prominent theorists. For example, Michael

Walzer (1983: 39) cautions against redrawing boundaries because ‘to tear

down the walls of the state is not (...) to create a world without walls, but

rather to create a thousand petty fortresses.’ Similarly, John Rawls (1999: 39, n.

48, 86, cf. 26) simply assumes societies to be ‘closed and self-contained’,

because fixing on the arbitrary nature of their boundaries would be to ‘fix on

the wrong thing’ given that, ‘in the absence of a world state, there must be

Introduction

boundaries of some kind.’ And Jeremy Waldron (1999: 299-300, emph. added)

argues that, in the case of a contested decision on (dis)enfranchisement, ‘we

are left in a legitimacy-free zone in which the best that we can hope for is that

a legitimate democratic system emerges somehow or other (...) [as] it is not

open to us to use any communal criterion of legitimacy at all.’

However, by drawing a line between history and legitimacy, proponents of

this approach fail to recognise that debates over the constitution of the demos

are ongoing. Indeed, the delineation of democratic boundaries is among the

most contested practical problems in contemporary democracies (Bauböck

2018: 5). Those theorists who want to circumvent the dilemma of constituting

the demos seem to suggest that contemporary contestations over democratic

boundaries are ultimately historical events that await a resolution, but such

debates will continue to arise in many different circumstances, not just in the

context of globalisation, increased immigration or digitalisation. The

assumption that there is an end to the contestation over the constitution of

the people thus risks throwing us into ‘a perpetual state of exception’

(Näsström 2007:

645).

The second approach to the purportedly unsolvable dilemma regarding the

legitimate constitution of the demos does not circumvent but, rather, asserts

the dilemma. It involves acknowledging that the legitimacy of democratic

boundaries will always be contested. Following this approach, the idea that

there is a separation between history and legitimacy is itself part of the

contestation over the boundaries of the people: It is not a neutral observation

but comes about only because those theorists stay committed to a procedural

understanding of legitimacy (Näsström 2007: 646).

Asserting the dilemma is, however, also not a wholly satisfactory approach.

Sofia Näsström (2007: 626) suggests that asserting the dilemma has

progressive potential: It functions as a ‘generative device that helps to foster

ever new claims for legitimacy.’ But there is no reason to think that a perpetual

state of contestation leads to progression rather than regression. In fact,

ongoing contestation over democratic boundaries is likely to erode democracy

chapter 1

itself, as a relatively stable membership and some sense of solidarity among

members of the demos may well be indispensable for making coherent and

reasonably acceptable democratic decisions over time (Miller 2020b: 2, 7).

1.1.2 Solving the Dilemma

The criticisms on the two approaches as well as ‘the absurdities’ that may

result from the absence of a solution to the dilemma, such as the democratic

justification of women’s disenfranchisement, suggest that there is a

democratic imperative to solving the dilemma regarding the legitimate

constitution of the demos (cf. Dahl 1989: 121). Let me outline the two types of

solutions to the dilemma that have been proposed in the literature, which I

will call the straight and the sceptical solution, following Saul Kripke (1982: 66-

67). Let me also explain why I follow the sceptical solution in this dissertation.

The straight solution accepts the assumptions underlying the dilemma but

shows that, on closer examination, the paradoxical result does not follow. Such

a solution would accept the purely procedural understanding of democratic

legitimacy, according to which the demos can only be legitimately constituted

by a democratic decision, but could suggest that the initial decision on the

demos is irrelevant as consecutive decisions will eventually lead to the right or

correct composition of the demos. In this vein, Jürgen Habermas (2001: 774)

argues that we ‘can break out of the circle of a polity’s groundless discursive

self-constitution only if this process – which is not immune to contingent

interruptions and historical regressions – can be understood in the long run as

a self-correcting learning process.’

This straight solution ultimately relies on an empirical and a normative

claim about the internal dynamics of democratic decision-making procedures:

Itreliesonanempiricalclaimabouthowconsecutivedemocraticdecisionswill

naturally (re)constitute the demos, and a normative claim that this is precisely

the right way to (re)constitute the demos. For example, proponents of the

straight solution could suggest that democratic decisions on the boundaries of

the demos have a natural tendency to expand those boundaries. However, to

Introduction

assert that this process results in a legitimate constitution of the demos,

proponents must also offer some independent reasons for why a maximally

extensive franchise is ultimately the right way to (re)constitute the demos. The

straight solution thus cannot save us from any substantive considerations as to

how the boundaries of the demos should be drawn (Goodin 2007: 44-46).

Many democratic theorists have therefore turned to the sceptical solution, and

this is also what I will do in this dissertation.

In contrast to the straight solution, the sceptical solution concedes that the

dilemma is not straightforwardly solvable as the paradoxical result actually

follows from the assumptions. Instead, the sceptic questions the very

assumptions on which the dilemma is based. One of these assumptions is that

the demos can only be legitimately constituted in a purely procedural way. The

sceptical response to the dilemma is to reject this assumption and to argue for

replacing this purely procedural account of democratic legitimacy by a (partly)

substantive account of legitimacy. This argument is based on the observation

that there are certain procedure-independent criteria of democratic

legitimacy. These criteria can also be referred to as democratic values.11 One

could think, for example, of political equality and autonomy. Such values play a

crucial role in the justification of democratic procedures. In particular, as

Charles Beitz (1989: 17-19) points out, democratic values constrain the reasons

for favouring ‘one rather than another conception of fair terms of democratic

participation’, which, in turn, forms the ‘basis for the design or reform of

democratic institutions.’12 The democratic legitimacy of a decision depends on

whether the procedure is considered permissible in terms of the democratic

values that justify the procedure in the first place (Maltais et al. 2019: 449-

450). The legitimacy of a democratic decision would therefore be undermined

if the boundaries of the decision-making demos come in conflict with the

democratic values that provide us reason to use the procedure. The sceptic

therefore concludes that democratic values determine whether certain

exclusions from or inclusions in the demos are permissible. The sceptical

solution to the dilemma then consists in showing that the legitimate

constitution of the demos does not depend on whether a democratic decision

chapter 1

is made on its composition but rather on whether its composition is

compatible with

at all, cannot be defended in a certain way.’ Similarly, the sceptical response to the democratic

dilemma shows that the constitution of the demos cannot and need not require a purely

procedural justification.

11I use the term democratic values for those values that are used to justify democratic

procedures. But, as Goodin (2007: 50) points out, it ‘is ultimately probably a purely

terminological question of little consequence’ whether to label the relevant normative

considerations “democratic”.

12It should be noted that the valuescan figurein an instrumental or an intrinsic justification

of democracy. In the former case, democratic government is justified because it is the best

means to further these values. In the latter case, democracy is justified because it is

constituted by these values. This distinction is, however, complex and contested, see, e.g.,

Wall (2007) for a critique on intrinsic justifications of democracy. In this dissertation, I will

evaluate how democratic boundaries should be drawn both for instrumental and intrinsic

reasons, but I will not further delve into the instrumental/intrinsic distinction.

democratic values.

The sceptical solution describes democracy as a normative ideal. It is

important to highlight that I consider democracy to be a partial rather than a

comprehensive normative ideal. This means that democracy does not

incorporate all possible values. The democratic values provide pro tanto but

not all-thing-considered reasons to draw democratic boundaries in a certain

way. These reasons must be balanced against and can be overridden by the

reasons provided by other values. In other words, the democratic values tell us

what composition of the demos would be democratically legitimate, but

democratic legitimacy is only one dimension of political legitimacy. For

example, we may think that the democratic exclusion of resident non-citizens

(also referred to as denizens) is in tension with certain democratic values and

thus compromises democratic legitimacy. But there may be other important

non-democratic values, such as political stability, that support the exclusion of

denizens. There is then a trade-off between democratic and non-democratic

values. Whether political legitimacy requires the democratic inclusion of

denizens depends on how one balances the reasons following from these

different values (cf.

Erman 2022: 245; Owen 2012: 148; Saunders 2011: 64-65).

Introduction

The question arises whether, on the sceptical account, the making of a

democratic decision can still contribute to the legitimacy of the constitution of

the demos (Beckman 2019: 413). Suppose that a democratic decision is made

to disenfranchise women by an initial demos, which is itself uncontested. Can

the subsequent demos, which excludes women, make legitimate democratic

decisions? The sceptic would argue that it cannot, because the composition of

the subsequent demos does not satisfy the necessary substantive criteria.

These criteria would remain necessary despite the fact that the demos was

constituted by a democratic procedure. In fact, the democratic decision on the

demos can be considered to have lacked legitimacy, even though it satisfied

procedural standards, because its outcome violated necessary substantive

standards. I cannot work out the complex relationship between the

substantive and procedural sources of legitimacy here, but I want to highlight

that the sceptical solution leaves open the possibility that a democratic

procedure ought to constitute the demos when its boundaries fall within a

range of permissible inclusions and exclusions (Maltais et al. 2019: 449-450).

In this dissertation, I follow the sceptical solution to the dilemma of

constituting the political demos, not necessarily the pre-political demos.

Whereas the former refers to the people of a constituted polity, the latter

refers to the people who determine whether to constitute a polity with a

common system of laws and institutions. David Owen (2012: 145-147)

proposes a two-stage resolution to the democratic boundary problem, where

different substantive democratic criteria determine the legitimate boundaries

of the pre-political and the political demoi. This two-stage process is not

necessary to specify the legitimate composition of the political demos but to

determine whether to constitute a polity with a political demos in the first

place. However, other theorists claim that democratic theory remains agonistic

about the legitimate constitution of the pre-political demos (e.g., Pavel 2018:

332). The territorial boundaries of the polity or state are then arbitrary, in the

sense that they are contingent on a history of arbitrary forces.

In the two chapters in this part, I explicitly rely on the existence of

territorial state borders, which describe the jurisdiction where certain laws are

chapter 1

made. Despite the potentially arbitrary nature of those territorial borders, they

can still ground normative conclusions about inclusion in the political demos.

After all, democratic values specify who should be included in the political

demos given a certain jurisdiction that this demos governs. The contingency of

the state borders thus does not undermine my normative conclusions on

democratic inclusion. It only implies that if state borders would change, the

laws would likely apply to different people and therefore the legitimate

composition of the political demos would likely change (cf. Beckman 2023:

118-119).

Moreover, in Chapter 2, I show that the demarcation of the boundaries of

the demos ultimately relies on a theory of territorial rights. Even if their

boundaries are historically contingent, pre-political peoples may have certain

normative entitlements over the territory that they occupy. I argue that those

prior normative entitlements affect who should be included in the

decisionmaking over exit and entry to that territory. Sofia Näsström (2011a:

129) rightly points out that the reference to historical peoples as a pre-political

source of legitimacy is not neutral, just as the appeal to humanity as a whole

by cosmopolitans is open to disagreement. She distinguishes a positive

interpretation of peoplehood, which refers to a historical peoples, from a

natural interpretation of peoplehood, which refers to humanity as a whole.

While the sceptical solution solves the procedural problem of constituting the

demos, it cannot solve the disagreement between territorial rights theorists

and cosmopolitans on whether to use a positive or natural interpretation of

peoplehood as a source of legitimacy. The chapter shows that this

disagreement ultimately affects how democratic boundaries are drawn.

1.1.3 Principles of Democratic Inclusion

The sceptical solution uses democratic values to determine what principles of

democratic inclusion to use as the basis for defining the boundaries of the

political demos. In the contemporary debate, the two most prominent

Introduction

principles of democratic inclusion are the all-affected and all-subjected

principles:

All-Affected Principle: All and only those whose interests are relevantly

affected by a decision should be included in the decision-making.

All-Subjected Principle: All and only those who are relevantly subjected to a

state’s decisions should be included in the making of those decisions.

The two principles determine who should be democratically included but

do not necessitate their equal democratic inclusion. Some interpretations of

the principles permit, or even require, democratic inclusion to the degree to

which a person is affected by or subjected to the decisions. For example, Harry

Brighouse and Marc Fleurbaey (2010) argue that political power should be

distributed in proportion to the stakes (or degree of affectedness) of

individuals in the decision under consideration, and Robert Goodin and Gustaf

Arrhenius (2024: 13-19) discuss interpretations of the all-subjected principle

that distribute political power in proportion to gradations of

subjectedness.This observation forms the starting point of the argument in

Chapter 3, which shows that the partial inclusion of certain resident non-

citizens in domestic law-making is compatible with requirements of

democracy.

The all-subjected principle is generally more restrictive in scope than the

all-affected principle because, on most interpretations of relevant

affectedness, being subjected implies being affected but not vice versa (Goodin

2016: 366; Miller 2009: 214). In the case of the all-affected principle, whether

interests are deemed ‘relevantly’ affected depends on which interests are

affected and how likely it is that they are affected. For example, in order to be

‘relevantly’ affected, do interests have to be ‘interlinked’ (Goodin 2007: 61-62)

or concern ‘autonomously chosen life-plans’ (Angell 2020) and do they have to

be actually, probably or possibly affected (Goodin 2007: 61-62; Owen 2012:

131-133)? In the case of the all-subjected principle, whether a person is

deemed ‘relevantly’ subjected depends on the range of decisions to which she

is subjected and the type of subjection. Some theorists have argued that a

chapter 1

person must only be subjected to a specific decision (Goodin 2016: 384), must

be subjected to a significant proportion of a state’s decisions (Miller 2009: 222)

or must systematically and over time be subjected to a state’s decisions (Erman

2014: 538-541; Pavel 2018: 330-331). Furthermore, two types of subjection

can be distinguished: de facto and de jure subjection (Abizadeh 2021b: 604;

Valentini 2014: 792). A person is de facto subjected to a state’s decisions when

she is subject to the coercive powers of the state that enforce the decisions. By

contrast, a person is de jure subjected to a state’s decisions when she is subject

to the state’s legal duties or legal powers. In this dissertation, I will focus on de

facto subjection and will be concerned with a body of laws, such as domestic

and border laws, that has a broad enough range to subject to coercion on any

of the interpretations of subjection.

The two principles of democratic inclusion do not need to be competitors.

They can provide complementary solutions to the problem of drawing

democratic boundaries, because they can regulate different decision-making

functions (Bauböck 2018: 6; Erman 2022: 241; Magaña 2024: 9-10). Like many

democratic theorists, I think that being subjected gives rise to a claim to having

a say in decision-making, whereas being affected does not. Rather, affected

interests give rise to a claim to having one’s voice heard or having one’s

interests represented in the deliberation processes preceding decision-making.

As Claudio LópezGuerra (2005: 223) observes, ‘[j]ustice may require (..)

[taking] into account the interests of those who are likely affected. But being

entitled to just treatment by other groups whenever our interests are at stake

is quite different from being entitled to participate in the decision-making

processes of those groups.’ As such, the all-affected principle regulates a right

to justification of decisions and not a right to participation in decision-

making.19 I therefore focus on the all-subjected principle in this dissertation.

The two principles of democratic inclusion regulate different

decisionmaking functions because they accommodate different democratic

values. The all-affected principle can be considered to express the value of

procedural fairness, as it ensures the public protection and promotion of

relevant interests

Introduction

(Erman 2022: 249, 252-253). As such, the principle does not reflect the demo-

can also be considered in disjunction or conjunction. In the disjunctive interpretation, being

either de facto or de jure subjected is sufficient to ground a right to political inclusion. In the

conjunctive interpretation, a person has to be both de facto and de jure subjected to ground a

right to political inclusion (Abizadeh 2021b: 604; Goodin 2016: 372, n.19). Furthermore, see

Goodin and Arrhenius (2024) for a critical reconstruction of the different interpretations of the

all-subjected principle.

19For this interpretation of the all-affected principle, see also, among others, Abizadeh

(2012: 878) Bauböck (2018: 24); Beckman (2009: 45-46); Owen (2012: 137-139); Miller

(2020b:

4); Saunders (2012: 292-293).

cratic ideal of self-government. By contrast, the all-subjected principle can be

grounded in values that are a constitutive of democracy, such as freedom as

personal autonomy (Abizadeh 2008) and freedom from domination (Beckman

and Rosenberg 2018). The principle follows from one of these freedom

requirements because subjection to a state’s laws compromises a person’s

freedom (as personal autonomy or as non-domination) and democratic

inclusion is either instrumentally necessary to protect the freedom of the

subjected person or intrinsically necessary for a justification of legal subjection

that is consistent with the subjected person’s freedom (cf. Abizadeh 2008: 42).

In this dissertation, I will consider the all-subjected principle in relation to both

freedom as autonomy and freedom from domination.

The two principles of democratic inclusion can only be derived from

democratic values, not from the conception or practice of democracy. They

cannot follow from the conception of democracy, as definitions do not settle

any normative questions. If the charge of an “undemocratic” composition of a

demos is meant to provide a reason for reform then it must be based on

normative standards which tell us how democratic societies ought to be

organized, rather than on definitional stipulations. They also do not seem to

follow from the practice of democracy, as they do not actually align with

contemporary practices. For example, while most existing democracies

disenfranchise felons convicted of at least some crimes, teenagers below some

age threshold and foreigners, prominent principles of democratic inclusion

chapter 1

require these groups of people to be democratically included (Saunders 2011:

68-71).

David Miller (2020b: 2) proposes a multi-dimensional approach to the

principles of democratic inclusion. In this approach, the principles are

understood as proposals to align the constituency, scope and domain of a

decision-making procedure. These three dimensions of inclusion concern the

following distinct questions:

Constituency: Inclusion of whom? Who is entitled to participate in the

decision-making?

Scope: Inclusion in what? Which issues are on the decision agenda?

Domain: Inclusion for whom? Where and to whom do decisions apply?

This multi-dimensional conceptualisation is helpful to structure the debate. Let

me close the discussion on these principles by addressing a key question with

respect to each dimension and clarifying how the two chapters slot into the

debates on these questions.24

First, a prominent question in the debate is whether human agency and

certain cognitive capacities are a requirement for inclusion in the

decisionmaking constituency. Some theorists have argued that minors, the

mentally impaired, non-human animals and future generations can also be

affected or subjected in the relevant way and should therefore also have a

right to vote or have their interests represented in the political process, even if

they lack the necessary capacities to experience the benefits of democratic

inclusion (e.g., Donaldson and Kymlicka 2011: 153-154; Ekeli 2009; Van Parijs

1998).25 Others have responded that these arguments are based on a too

broad interpretation of the all-affected and all-subjected principles. For

example, Ben Saunders

used to derive new perspectives on how democratic boundaries should be drawn, even if the

practice of boundary drawing is contested.

24Note that Bauböck (2018: 22) uses the terms scope and domain to refer to what Miller

(2020b) describe as, respectively, the constituency and scope. Bauböck does not discuss the

decision-making domain, i.e., he does not discuss ‘inclusion for whom’.

Introduction

25See also Beckman (2007 2009: 146-166) and Green and Klein (1980), who consider the

differences between the mentally impaired and others insufficient to justify

disenfranchisement but do not deny that a requirement of human agency plays a role in a

claim to democratic inclusion. Furthermore, Beckman (2009: 90- 119) accepts that the

disenfranchisement of children can be legitimate but only if it can be defended by appeal to

the interests of children themselves. These arguments can be seen as a response to Dahl

(1989: 127), who has argued that children should be disenfranchised because ‘they are not yet

fully qualified’ to vote.

(2012) claims that the all-affected principle only applies to bearers of interests

with agency and Claudio López-Guerra (2012) formulates the condition of

franchise capacity, which entails that only those should be included who have

‘the minimum necessary cognitive and moral powers to experience the

benefits of having the franchise or the harms of disenfranchisement.’ Similarly,

Ludvig Beckman and Jonas Hultin Rosenberg (2022) argue that an entity can

only be de jure subjected to the laws of a state when it has the cognitive

capacity to comply with laws or the ability to recognise legal authority. It must

thus have agency, understood as a legal status. This is something that, for

example, future generations and artificial intelligence lack. In this dissertation, I

leave this debate aside and focus on how the geographic location of human

agents affects their claim to democratic inclusion.

Second, the two principles may apply to a different decision-making scope.

A distinction can be made between decision-making on laws and on policies.

Laws ‘mandate, proscribe or permit certain relationship between people and

institutions’ that are typically coercively enforced, whereas policies set out

‘certain procedural or substantive goals of what should be achieved in the near

or remote future’ that are not coercively enforced (Erman 2022: 247). The all-

subjected principle applies specifically to law-making: It concerns the inclusion

of those who are subject to the coercive enforcement of laws or to the legal

authority or legal powers of a state. By contrast, the all-affected principle can

apply both to law and policy-making (Erman 2022: 247-250; cf. Bauböck 2018:

27-28). In this dissertation, I focus on the application of the all-subjected

principle to law-making.

Third, when the decision-making scope is settled, the principles of

democratic inclusion require an alignment between the decision-making

constituency (who should be included) and the decision-making domain (who

chapter 1

is affected or subjected). To create such an alignment, most democratic

theorists argue for altering the constituency, i.e., including more or fewer

people in the decision-making. However, alignment may also be achieved by

altering the domain, i.e., widening or narrowing the geographical range over

which the decisions apply (Miller 2020b: 3). In particular, in the case of

subjection to a state’s laws, one can ask whether it is justifiable that the state

can subject a certain group of people to its laws. For example, states often

exercise extra-territorial legal power in order to control cross-border criminal

activity. Instead of concluding that a global demos is required on extra-

territorial law-making, one can question the democratic justifiability of such a

wide extension of the decision-making domain by states. David Miller (2016: 5)

suggests that if the extra-territorial exercise of legal powers ‘is not essential for

reasons of self-defence (such as warding off an imminent terrorist attack) (...)

[then] [s]tates should simply stop making laws with such a wide extension and

rely instead on making reciprocal arrangements with other states to control

cross-border criminal activity.’

In this dissertation, I focus specifically on domestic and border (or

immigration) laws. The latter govern the movement of individuals into and out

of a state’s territory, but do not determine who can become a citizen. It is

inherent in the nature of these laws that they have an extra-territorial

extension. I will question how expansive the domain of border laws is and how

expansive the constituency of border laws must accordingly be. By contrast, in

the case of domestic laws, I do not specify which laws I consider but simply

assume that there is a range of laws for which the decision-making domain is

and should be restricted to the territory of the state.

1.1.4 Outline of the Two Chapters

In Chapter 2, I explore whether prospective immigrants should be included in

the decision-making on a state’s border laws. The democratic inclusion of

prospective immigrants in a state’s regime of border laws would radically

expand democratic boundaries beyond the territorial boundaries of the nation-

Introduction

state. I use a de facto understanding of the all-subjected principle that is

grounded in the value of freedom as personal autonomy. That is, I assume that

prospective immigrants must be included in the decision-making on a state’s

regime of border laws when they are subjected to the coercive enforcement of

those laws, in the sense that the coercive enforcement of those laws

compromises their freedom as personal autonomy. To draw the boundaries of

the demos on a state’s regime of border laws, I therefore examine whether

and, if so, when the state’s coercive enforcement of its regime of border laws

compromises the freedom as personal autonomy of prospective immigrants.

My analysis shows that the demarcation of the boundaries of the demos

for any regime of border laws ultimately depends on a theory of territorial

rights. I argue that the freedom as personal autonomy of prospective

immigrants is compromised only if the state’s coercive enforcement of its

regime of border laws alters the moral relationship between the state and the

prospective immigrants, thereby making prospective immigrants dependent on

the will of the state. Whether the moral relationship is altered depends on the

existence and enforceability of a prior moral duty of prospective immigrants to

stay out of the state’s territory. In particular, the moral relationship between

the state and a prospective immigrant is altered if (a) the prospective

immigrant does not have such a prior duty towards the state, (b) the state

does not have the standing to enforce such a prior duty, or (c) the state

threatens to enforce such a duty with disproportional consequences. A duty of

prospective immigrants towards the state to stay out of its territory correlates

to a claim right on the part of the state to close its borders. Hence, I conclude

that an answer to the question of whether the state’s coercive enforcement of

its regime of border laws compromises the personal autonomy of prospective

immigrants, and thus triggers a claim to democratic inclusion, fundamentally

rests on the rights of the state over its territory and the correlative duties of

prospective immigrants towards the state.

Building on three prominent theories of territorial rights – neo-Lockean,

self-determinationandnationalisttheories–Isubsequentlyshowthatrefugees do

not have a moral duty to stay out of a state’s territory, whereas other

chapter 1

prospective immigrants have such a duty. This implies that contemporary

border regimes have to be changed in order to make the border laws

democratically legitimate: The coercive enforcement of border laws always

compromises the freedom as personal autonomy of refugees and therefore

refugees must be democratically included. By contrast, the coercive

enforcement of border laws only compromises the freedom of personal

autonomy of other prospective immigrants if it involves disproportional threats

and therefore other prospective immigrants only have a claim to democratic

inclusion if the border laws threaten with disproportional consequences.

In Chapter 3, Daniel Häuser and I explore whether the territorial presence

of denizens (resident non-citizens) necessarily grounds a claim to equal

democratic inclusion in a state’s domestic laws. Our exploration starts from the

observation that some interpretations of the all-subjected principle permit, or

even require, democratic inclusion to the degree to which a person is

subjected to the decisions. We examine whether requirements of equal

freedom, underlying the all-subjected principle, permit partial democratic

inclusion in domestic laws. In particular, we consider freedom from domination

and the social basis of self-respect, which is a pre-condition for freedom.

Denizens are clearly subjected to a state’s domestic laws, as they are

territorially present. However, they enjoy a distinct social position, as they are

often citizens somewhere else and therefore enjoy external citizenship rights

and protections. These are the rights and protections that their home state

provides them as its citizens, such as the right to return home, the right to vote

in the home state and diplomatic protections. Some denizens profit more from

their external citizenship than others. This depends on whether their home

country is a stable democracy that is economically and politically influential at

the international stage.

We argue that the degree to which denizens enjoy external citizenship

determines whether, and to what extent, they can legitimately be partially

democratically included. External citizenship can effectively protect denizens’

freedom from domination and ensure their social basis of self-respect. This is

particularly the case for denizens who enjoy favourable external citizenship

Introduction

conditions, as they come from powerful and stable democracies, but not for

denizens who are forced to leave their country of origin as refugees, are

deprived of their original citizenship, or cannot effectively exercise political

power in their authoritarian home state. We thus show that the equal freedom

of denizens under favourable external citizenship conditions can be protected

and sustained without democratic inclusion to the same degree as citizens and

other denizens in domestic law-making. This implies that territorial presence is

not sufficient for a claim to full democratic inclusion in domestic law-making.

1.2 the boundaries of electoral constituencies

The second democratic boundary problem addressed in this dissertation

concerns electoral constituency boundaries. Electoral constituencies (also

referred to as electoral districts) are subgroups of the demos that are charged

with electing some or all of the legislators. By determining which voters belong

together for the purpose of electing a certain number of representatives,

electoral constituencies define ‘the initial terms of authorization and thus the

nature of inclusion in representative relationships’ (Urbinati and Warren 2008:

396). They provide a frame within which certain issues, interests and group

identities are more likely to be represented and thus included in the political

process than others. Questions of democratic inclusion are therefore not

settled with the legitimate constitution of the demos. The delineation of

electoral constituency boundaries is equally important for the legitimacy of

democratic governance.

The boundaries of electoral constituencies are typically drawn along

geographic lines, such that each constituency covers a geographically compact

and geographically accessible area. The boundaries tend to adhere to the

territorial boundaries of local administrative units and tend to respect ‘natural

boundaries’, such as mountain ranges, rivers or islands (Handley 2008: 274-

275). According to a comparative survey by Lisa Handley (2008), at least 84

countries around the world, of which 52 distinctly democratic countries, define

their electoral constituencies in expressly geographical terms.33 Many

chapter 1

contemporary democracies thus make the eligibility to vote for a particular

representative dependent on residency in a particular, contiguous geographic

area on the state’s territory.34

These geographicconstituency boundaries playa pivotalrolein democratic

inclusions and exclusions. Geographic constituency boundaries disadvantage

political parties of which the voters are concentrated in cities (Rodden 2019).

They are also often manipulated to strengthen the legislative influence of the

ruling political party – a practice known as partisan gerrymandering.35 The

voting power of the opposition is then diluted by concentrating opposition

voters into a few constituencies (packing) or dispersing them across multiple

constituencies (cracking). This practice is particularly prominent in elections in

the United States, but it is also employed in other countries. For example, by

redrawing the boundaries of the geographic electoral constituencies in

Hungarian parliamentary elections, Victor Orbán solidified the power of his

Fidesz party and advanced the transformation of Hungary into an “electoral

autocracy” (Scheppele 2022: 52-53). Moreover, geographic constituency

bound-

of representation is then exclusion, not participation.

33The survey shows that 60 of the 87 surveyed countries use geographic electoral

constituency boundaries that are regularly redrawn and that another 24 of the surveyed

countries employ geographic electoral constituency boundaries that are permanently fixed

(Handley 2008: 266, Appendix B). See also Carlsen Häggrot (2023b: 721, n.2). Furthermore, 52

of the 84 countries with geographic constituencies are distinctly democratic in the sense that

they have a Freedom House political rights score of 2 or less in 2008, see Carlsen Häggrot

(2023a: 303, n.2) and Freedom House (2008: 885-886).

34Note, however, that many electoral democracies also enfranchise their expatriate

citizens, even though they reside abroad. See Carlsen Häggrot (2023b) for an insightful

discussion on how geographic constituencies and expatriate voting can be combined.

35See Beitz (2018) for an insightful paper on why partisan gerrymandering is unfair.

aries dilute the voting power of geographically dispersed minorities. In the

United States, legal battles are regularly fought over constituency maps that

would disadvantage Black Americans and other racial or ethnic groups.And in

Belgium, geographic constituencies are criticised for deepening the linguistic

and territorial divide between the French-speaking South and the Flemish-

Introduction

speaking North (Deschouwer and Van Parijs 2019). This comes at the cost of

the political representation of other salient social divisions.

As a citizen from a small country – the Netherlands – my initial response to

the challenges posed by geographic electoral constituencies was: Why do we

not get rid of these constituency boundaries altogether? Dutch voters are not

divided over several electoral constituencies but instead form one large

constituency. This has, however, not always been the case: Until 1917, the

roughly million (male) voters were divided over no less than 100 electoral

constituencies for Dutch Parliamentary elections. With the growing number of

political parties in the Dutch parliament and the – as we speak – painfully long

coalition negotiations, some politicians have started questioning whether we

should go back to a system with multiple electoral constituencies. Such a

system can reduce fractionalisation in the parliament and has certain other

democratic benefits, such as that it can sustain practices of voter mobilisation

and create a direct relationship of authorisation and accountability between

voters and their representatives.

In this dissertation, I analyse systems with multiple electoral constituencies

in which the size and magnitude of each constituency is relatively low. The

constituency size refers to the number of voters in a constituency and the

constituency magnitude refers to the number of legislative seats that are

electable within a particular constituency. Keeping the number of voters per

legislative seat fixed, an electoral constituency will have a smaller size with a

lower constituency magnitude. The constituency magnitude can be considered

to be low when it lies somewhere between one and six, as cognitive

psychology shows that voters are considerably less able to make a clear

preference ordering once the number of options rises above six (Carey and Hix

2011: 385). As I will argue in Chapter 4, a system with multiple constituencies

with a low constituency magnitude promotes several democratic practices that

relate to the creation of a close connection between voters and their

representatives.

However, if a country wants to maintain or re-introduce such a system with

multiple constituencies, should these constituency boundaries then be defined

chapter 1

geographically? There are many non-geographic ways to draw electoral

constituency boundaries. For example, electoral constituencies can also be

defined by age, ethnicity, race or socio-economic class. Digitalisation facilitates

a close connection between voters and their representatives, even if they do

not come from the same geographical area of residency. As a consequence,

non-geographic criteria can nowadays serve as a viable alternative for

delineating electoral constituency boundaries. Below, I first describe how

electoral constituency design affects the nature of inclusion in representative

relationships and, subsequently, I propose an alternative electoral constituency

design that I defend in this dissertation.

1.2.1 Electoral Representation

Electoral constituencies are institutionalised legal groupings of voters. They are

conceptually prior to voting: We can design an electoral constituency without

selecting representatives, but we cannot elect representatives without having

designed an electoral constituency. Electoral constituencies determine which

groups of voters are eligible to vote for which representatives. That is, they

determine which groups of voters can authorise and hold to account which

representatives through their vote. I define authorisation as the granting of

authority to a representative to take a seat in the legislature at the outset of

their term and holding-to-account as the re-election or removal from office of

an elected representative at the end of their term (Pitkin 1967: 56; cf. James

2011: 905).

This electoral machinery of authorisation and accountability ensures a

systemic responsiveness of representatives to their constituents. It incentivises

representatives to substantively act in the interests of their constituents, either

as a delegate, who simply follows the expressed preferences of the

constituents, or as a trustee, who follows their own best judgement of what is

in the best interest of their constituents (Pitkin 1967: 145, 155). From the

perspective of representatives, their electoral constituency is the audience to

which they make promises and whom they try to please by anticipating their

future preferences in order to be re-elected. When an electoral constituency is

Introduction

geographicallydefined, the constituents’ common interests will involve local

interests as well as certain other non-local political interests that are

geographically concentrated, such as those related to religion, language or

ethnicity. The geographic definition of electoral constituencies then directs

representatives towards local and geographically-concentrated interests.

These interests do not necessarily exist prior to the process of

representation. The recent ‘constructivist’ turn in the theory of political

representation highlights that political interests are endogenous rather than

exogenous to the process of representation. Political representation is not

simply about responding to constituents’ interests but also about anticipating

and creating them (Disch 2021; Disch et al. 2020). In particular, representatives

mobilise voters by politicising certain social identities, such as class, ethnicity,

race or religion, that shape political interests. In Chapter 4, I show that the

geographic definition of electoral constituencies influences which identities are

politicised. Given a set of potentially mobilisable social identities,

representatives are incentivised to politicise those identities that are

concentrated in a geographic area and thus have a large enough size vis-à-vis

the geographic constituency boundaries to make them win a seat in the

constituency.

By shaping the interaction between representatives and their constituency,

the design of electoral constituencies can ensure the dyadic representation of

certain substantive interests, but not necessarily the collective representation

of those interests by the entire legislative body: When certain interests are

represented by dedicated representatives, this does not necessarily imply that

the decisions made by the entire legislative body also reflect those interests. In

fact, the concentration of a group in a particular constituency may undermine

their substantive collective representation, as other representatives in the

legislature do not have electoral incentives to act in the group’s interests and

therefore may not vote in support of policies that benefit the group. This

raises, for example, the question whether the concentration of Black

Americans in certain geographic constituencies undermines or promotes their

chapter 1

substantive representation in policy outcomes (cf. Cameron et al. 1996; Epstein

and O’Halloran 1999; Lublin 1999).

Besides shaping substantive representation, electoral constituency design

may also have an effect on the descriptive representation of groups in the

legislature. Descriptive representation refers to the descriptive resemblance

between representatives and voters (Pitkin 1967: 60). For example, a black

legislator is descriptively representative of black voters. Descriptive

representation has symbolic benefits: It can enhance the de facto legitimacy of

the political system, increase levels of trust in the government, create greater

engagement in politics and change the historically embedded understanding

that members of certain groups are unfit to rule (Hayek 1960; Lawless

2004;Mansbridge 1999: 648-651). Descriptive representation is also

sometimes considered to have substantive benefits: It can ensure the

representation of a distinct social perspective that descriptively similar people

may have due to their distinct social experiences (Mansbridge 1999: 641;

Williams 1998: 6; Young 2002: 98, 136). Electoral constituency design can play

a crucial role in enhancing the descriptive representation of a minority group

in the legislature. While there are instances in which a majority black

constituency elects white representatives, the concentration of black voters in

a constituency is widely recognised as a strategic instrument to ultimately

increase the presence of black people in the legislature (Thernstrom 2009: 13-

14; Williams 1998: 205-206; cf. James 2011: 899).

Electoral constituency design can thus contribute to enhancing the

substantive dyadic representation and the descriptive representation of

minority groups. The question arises whether electoral constituencies should

be designed in order to do so. The answer to this question depends on

whether one holds a suppressive or expressive theory of political

representation. In line with Rousseau’s republicanism, suppressive theories

aim to create political processes in which the common good prevails over

partial goods. Their supporters portray intergroup differences as detrimental

to the common good and, therefore, propose institutions that can prevent the

influence of intergroup differences on political outcomes. By contrast,

Introduction

expressive theories of political representation value the presence of group-

structured differences in the legislature. Their supporters aim to ensure the

inclusion of all relevant interests in legislative deliberation, in the pursuit of

enhancing a deliberative understanding of the common good and safeguarding

minority rights (Williams 1998: 240-241).

These two theories of political representation have led to different design

proposals. Proponents of a suppressive theory of political representation have

argued for heterogeneous electoral constituencies, that are as diverse as the

electorate as a whole. They expect such a system to lead to a unanimity of

interests and perspectives among representatives, as all representatives speak

for constituencies that have a similar composition (Ciepley 2013; Rehfeld 2005:

231-234; cf. Williams 2008). By contrast, proponents of an expressive theory of

political representation have argued for more homogeneous group-conscious

electoral constituencies, in which a particular under-represented minority

forms at least a majority (James 2011). However, in the two chapters in this

part, I show that an expressive theory of political representation actually calls

for an electoral constituency design that combines heterogeneous and

groupconscious constituencies. In contrast to what proponents of

heterogeneous constituencies believe, I show in Chapter 4 that such a design

can contribute to the representation of more rather than less group divisions

in the legislature. And in Chapter 5, I argue that group-conscious

constituencies should not be as widely used as their proponents suggest,

because they only benefit a very specific set of minorities.

1.2.2 Heterogeneous Electoral Constituencies

Heterogeneous constituencies mirror the electorate as a whole. I use the term

to refer to completely heterogeneous constituencies. In such constituencies, all

socially salient identities and all positions are represented on every issue, and

they are represented in the same proportion as in the entire electorate. The

heterogeneity of a constituency is a matter of degree and is always relative to

the electorate as a whole. Electoral constituencies are less heterogeneous (or

chapter 1

more homogeneous) when some social identities or issue-positions are not

reflected in the same proportion as in the entire electorate. Their diversity

then depends on the issue. As Bejamin Bishin (2009: 121, 136) exemplifies,

Floridas 20th district is less diverse (or even homogeneous) on the issues of

Cuban trade and assault weapons as it has only one group that feels strongly

about those issues, whereas it is more diverse (and possibly even mirrors the

electorate as a whole) on issues of abortion and extending hate-crimes

protections as it has multiple groups holding competing views on those issues.

Geographic constituencies are not completely heterogeneous. This is

because political interests tend to revolve partly around local interests and

residency patterns are to a certain extent indicators of non-local political

interests. The larger geographic constituencies are, the more heterogeneous

they tend to be. Assuming that electoral constituencies have to be

geographically-defined, James Madison regarded increasing the constituency

size as the best or only way to increase the diversity within constituencies. As

he thought that more diversity within constituencies could help prevent

factionalism, he proffered in Federalist 10:

Extend the sphere and you take in a greater variety of parties and

interests; you make it less probable that a majority of the whole will

have a common motive to invade the rights of other citizens; or if

such a common motive exists, it will be more difficult for all who feel

it to discover their own strength, and to act in unison with each

other (Madison 1787: 52).

Asingle‘electorate-

wide’constituency,whichencompassestheentireelectorate, is by definition

completely heterogeneous. Whether it is geographicallydefined depends on

whether the boundaries of the demos are geographicallydefined. This

constituency design is used in the Netherlands but also, for example, in Israel.

Some theorists have advocated for adding such a constituency to the existing

smaller-sized geographic constituencies in elections for the European

Parliament and the Belgian Federal Parliament (Crego 2021;

Deschouwer and Van Parijs 2019).

Introduction

However, when we do not assume a geographic definition, it is also

possible to create multiple heterogeneous electoral constituencies. New

technologies enable us to use random selection in an efficient and effective

way. While randomisation is usually employed in empirical research to create a

representative sample of a population, it can also provide an innovative way to

select the participants in democratic institutions, such as in deliberative

minipublics. Andrew Rehfeld (2005) pioneered the concept of random

constituencies, wherein voters are randomly assigned to a constituency. The

boundaries of these constituencies are not geographically-defined, but are

created purely for political purposes, and their composition is completely

heterogeneous.

In Chapter 4, I advocate for a system with multiple completely

heterogeneous electoral constituencies (short: heterogeneous constituencies)

instead of geographic constituencies. I focus on heterogeneous random

constituencies, as these are likely the only heterogeneous constituencies that

do not cover the entire electorate. If there would be a finite number of factors

that determine an individual’s political interests, it would also be possible to

create multiple heterogeneous constituencies by pooling completely

homogeneous constituencies or by enumerating all possible combinations and

stipulating that the total number of citizens for each combination is equally

divided among the multiple constituencies (Bogaards 2003; Stone 2008). While

the list of factors influencing political interests may be finite, it is presumably

too contested and too long to serve as a basis for designing electoral

constituencies – one can think of geographical area, religion, race, gender,

sexual orientation, age, socio-economic status and so on.

Membership in electoral constituencies can also be analysed along two

other dimensions than heterogeneity. A second dimension concerns the

stability of membership in the constituency. A constituency is stable when it

has no change in its membership between elections. Stability sustains the

development of significant and effective ties between constituents and their

representatives. It enables voters to form communicative networks with fellow

constituents and to hold the same representatives to account as they selected

chapter 1

in the previous elections. The continuity of constituency membership between

elections is necessary to create electoral incentivises for representatives to act

in the interests of their constituents. After all, when constituency membership

is prone to change, representatives may find themselves making promises to

one set of voters at election time, only to pivot and cater to a different set of

voters for re-election in the future. There will then be no incentive to actually

keep to the promises made at election time. While the fact that one member

changes constituency will not affect the representatives’ responsiveness when

constituencies have thousands of members, it is clear that the greater the

stability in constituency membership the better. After all, it is impossible to

pinpoint how much change is possible without affecting responsiveness and

greater stability gives more voters the opportunity to steer governmental

decisions in their preferred direction. Electoral constituency design can never

ensure complete stability because people pass away, come of age, become

citizens or lose their voting rights, but it can come as close as possible to

creating stability by making membership permanent or life-long (Rehfeld 2005:

109, 186-192). Given the democratic advantages of stability, I assume that

voters are randomly and permanently assigned to an electoral constituency

when they become eligible to vote.

A last dimension of constituency design concerns the voluntariness of

membership in the constituency. Voluntariness describes the extent to which

voters have a choice to enter or exit a particular constituency. In a completely

voluntary system, voters can determine themselves how to define their

constituency and thus with whom to form a group for the purposes of electing

political representatives. In a completely involuntary system, citizens are

assigned to a constituency without an option of entry or exit (Rehfeld 2005:

41-42). Geographic constituencies are voluntary to the extent that voters can

choose to live in a particular district and are not restricted in their choice by

the social and material costs of moving. Voters in geographic constituencies

can make use of so-called foot voting, which can provide a form of exit-based

empowerment (Warren 2011). Foot voting is also associated with other

benefits, such as contributing to equality in voting weights. Even if seats are

Introduction

assigned to geographic constituencies in proportion to the number of voters in

the constituency, there will always be some differences in each constituency’s

ratio of the number of voters per seat. For instance, while one U.S. Senator

represents 38 million voters from California, another U.S. Senator represents

only 580,000 voters from Wyoming. As a consequence, a voter in Wyoming has

effectively 56 times more voting weight than a voter in California (Ciepley

2013: 155). Foot voting enables voters to move to another constituency in

which they have more voting weight. Random (and permanent) electoral

constituencies form a completely involuntary system and thus do not have the

benefits of foot voting. However, in contrast to geographic constituencies,

random constituencies can ensure that all votes have equal weight without

foot voting. The size of random constituencies can easily be adjusted to ensure

that the number of voters electing a representative to a legislative seat

remains consistent across all seats.

1.2.3 Group-Conscious Electoral Constituencies

Group-conscious constituencies consist largely or solely of voters that belong

to a particular minority group. The minority is sufficiently numerous in those

constituencies to authorise and hold to account their own representatives. The

term ‘group-conscious constituencies’ is often used to refer to majority-

minority constituencies, in which a minority forms at least a majority of

constituents. I also use the term to refer to communal constituencies, which

consist solely of members from a particular minority.

Group-conscious constituencies can be combined with both a geographic

and a random definition of electoral constituencies. For example, in the U.S.,

the geographic constituency boundaries are drawn such that certain racial or

ethnic minorities form a majority in at least some constituencies. Furthermore,

in New Zealand, the dedicated Mãori constituencies supplement the general

electoral constituencies. Both the Mãori and the general constituencies are

geographically-defined and cover the entire state territory (Handley 2022: 376-

377, 383-384). In a similar vein, majority-minority random constituencies could

chapter 1

be created with stratified random selection to ensure that a majority of the

membership positions is attributed to a particular minority group and

communal random constituencies could be created in addition to general

constituencies by randomly assigning members of the minority to one of those

dedicated constituencies.

Group-conscious constituencies are often introduced in systems with

single-seat geographic constituencies in order to address the dilution of

minority votes in those systems. Two forms of vote dilution can be

distinguished. The first concerns vote-seat disproportionality. When a single

representative is elected per geographic constituency, there will be a lot of

wasted votes, which go to candidates that are not elected to the seat. As a

consequence, the number of legislative seats won by a group or political party

may not be proportional to their obtained share of the vote (cf. Guinier 1992;

1994: 119-156; Reeve and Ware 1992: 120-121). The second form of vote

dilution concerns vote-seat asymmetry. Geographic constituencies make it

easier for geographically-concentrated groups to obtain a seat in the

legislature. As a consequence, the number of seats that geographically-

concentrated groups can win given a certain share of the vote is higher than

the number of seats that geographically-dispersed groups can win given the

same share of the vote (cf. Beitz 2018: 332-333).

However, in Chapter 4, I argue that replacing single-seat geographic

constituencies by multi-seat heterogeneous constituencies provides a solution

to both of these forms of vote dilution. This solution tackles the problems by

addressing their original cause. A higher constituency magnitude can reduce

the number of wasted votes and, thereby, the vote-seat disproportionality.

And a heterogeneous constituency design can prevent a bias against groups

that straddle constituency boundaries as it ensures that all groups are equally

dispersed across constituencies. Group-conscious constituencies are thus not

required to address the problem of vote dilution in electoral systems.

The reason why group-conscious constituencies have to be introduced is

not related to a form of vote dilution inherent in an electoral system. Rather, I

argue in Chapter 5 that group-conscious constituencies are needed to

Introduction

ameliorate the political inequalities that result from the distinct social position

of certain marginalised groups. Some groups experience deep cultural and

socio-economic injustices which, in turn, create barriers to their political

participation. These groups are, as a consequence, marginalised in the political

process. In the chapter, I argue that only a particular type of marginalised

groups – marginalised autonomous groups – should get group-conscious

constituencies in order to ensure their political equality and that these groups

benefit the most from communal electoral constituencies. Taking the two

Chapters together, I thus advocate for an electoral constituency design which

consists of a combination of general and communal constituencies to which

voters are randomly and permanently assigned, where the communal

constituencies are only created for marginalised autonomous groups if present

in the society.

1.2.4 Outline of the Two Chapters

In Chapter 4, I propose to replace single-seat geographic constituencies by

multi-seat heterogeneous constituencies, which are formed by randomly and

permanently assigning voters to a constituency. This proposal aims to address

two key issues: It seeks to resolve the democratic shortcomings inherent in

geographically-defined electoral systems and it seeks to offer an institutional

solution to the problem of legislative gridlock, which poses a threat to

democracies world-wide.

First, I argue that geographic constituencies undermine democratic

equality. In a system with geographic constituencies, geographically-dispersed

groups have less prospects for electoral success than

geographicallyconcentrated groups of the same size. This bias towards

geographicallyconcentrated groups creates an inequality in voting power:

Members of those groups have comparatively more a posteriori voting power. I

argue that this bias cannot be justified by the purported advantages of

geographic constituencies, as heterogeneous constituencies have the same

democratic benefits without creating a disparity in voting power. In a system

with heterogeneous constituencies, all groups are equally distributed over the

chapter 1

constituencies. This ensures that the prospects for electoral success of all

groups, as well as the a posteriori voting power of their members, depend

solely on the sizes of the groups, not on their geographic settlement patterns.

Second, I show that geographic constituencies exacerbate the democratic

threat of legislative gridlock whereas heterogeneous constituencies contribute

to preventing it. Legislative gridlock challenges the normative legitimacy of a

system by obstructing the democratic capacity of the people to rule. The

threat of legislative gridlock is particularly imminent when reinforcing

cleavages are politicised that divide the political parties into two deeply

opposed camps. By prioritising geographically-concentrated groups,

geographic constituencies

stimulatetherepresentationofgroupidentitiesthatreinforcegeographicsocial

divisions. By contrast, when cross-cutting cleavages are politicised, there is

partial overlap between political parties, which can moderate political conflict

and foster an environment conducive of political compromises. I show that

heterogeneous constituencies, especially in combination with multiple seats,

enable representatives to politicise all salient (cross-cutting) social identities

that exist in society. A system with heterogeneous constituencies thus does

not only enhance democratic equality but, thereby, also offers an institutional

response to the democratic problem of legislative gridlock.

In Chapter 5, I examine which groups, if any, have a claim to

groupconscious electoral constituencies. The creation of group-conscious

constituencies is often justified by the need to combat marginalisation in the

political process. However, a broad range of groups can be considered

marginalised. As Will Kymlicka (1995: 145) observes, the term seems to

encompass ‘everyone but relatively well-off, relatively young, able-bodied,

heterosexual, white males.’ If the basis for claiming group-conscious

constituencies is marginalisation, there would be an unbounded proliferation

of demands, rendering the design of a justifiable electoral constituency system

practically unattainable.

However, I show that only a very small set of marginalised groups have a

claim to group-conscious constituencies. I make a distinction between two

Introduction

types of marginalised groups: marginalised autonomous and marginalised

ascriptive groups. The difference between these groups lies in their solidaric

commitment. Marginalised ascriptive groups are united in their commitment

to social empowerment, whereas marginalised autonomous groups are united

in their commitment to cultural self-determination. I argue that the

groupreinforcing logic of group-conscious constituencies is in tension with the

former commitment, whereas it is compatible with the latter commitment,

even if the group seeks cultural self-determination through self-government

rights rather than political inclusion. Therefore, if marginalisation justifies a

claim to group representation then group-conscious constituencies should be

attributed to all and only all marginalised autonomous groups.

My argument has important implications for the U.S. practice of

raceconscious districting. This practice is often used to combat the

marginalisation of black voters. These voters must form sufficiently large and

geographically compact groups with cohesive voting patterns in order to have

a claim to race-conscious constituencies. However, these criteria do not ensure

that the groups are marginalised autonomous groups. Black voters may cast a

politically cohesive vote, even if they do not share a “Black culture” and are

not united in a commitment to preserving, protecting and promoting that

culture. As a consequence, race-conscious constituencies may be attributed to

groups of marginalised blacks for which it is a counter-productive remedy.

1.3 methodology

This dissertation provides a normative analysis of democratic boundary

problems. The most common method of normative analysis in political

philosophy is that of developing a reflective equilibrium. This is a systemic

process of reasoning in which we form considered moral judgements that are

aligned with our broader moral principles and convictions. The process starts

by taking our initial moral judgements as provisional fixed points and exploring

what broader moral principles can accommodate these judgements. In this

process, we may discover tensions or inconsistencies between our initial

chapter 1

judgements and our moral principles. Through a process of revision and

refinement, we then make adjustments to both our judgements and principles

until they coalesce into a coherent and mutually supporting framework. The

resulting normative theory is referred to as a reflective equilibrium: ‘It is an

equilibrium because at last our principles and judgments coincide; and it is

reflective since we know to what principles our judgments conform and the

premises of their derivation’ (Rawls 1997: 18). It need not be a stable

equilibrium, as new conditions or counter-examples may lead us to re-examine

and revise our considered judgements in the future. Albeit temporary, it is the

coherence between our judgements and principles that lends justification to

those judgements (Rawls 1971: 17-19).

For example, in Chapter 3, Daniel Häuser and I analyse whether the

prominent moral judgement that denizens ought to be equally included in

domestic law-making can be accommodated by the moral principle of equal

freedom. As our analysis shows inconsistencies between the judgement and

the principle, we refine the moral judgement such that it aligns with our moral

principle of equal freedom and conclude that equal freedom is compatible

with the partial democratic inclusion of some (but not all) denizens. This

conclusionformsareflectiveequilibrium.Itmay,however,onlybeatemporary

equilibriumasothernormativeprinciplesmayleadustore-examineandrevise our

considered judgement about the partial democratic inclusion of denizens in

the future.

In addition to employing the method of reflective equilibrium-formation,

my research can be characterised by an institutionalist and problem-driven

approach to doing political philosophy. My approach is institutionalist in the

sense that I examine the legitimacy of actual institutions in contemporary

democracies. I consider these institutions as foundational elements for my

analysis, rather than subjecting their existence to normative scrutiny. For

instance, I presume that the world is divided into states with distinct territorial

jurisdictions and examine what is required to make the law-making by those

states democratically legitimate. The acceptance of certain aspects of the

world as pre-theoretically given does not entail an endorsement of the status

Introduction

quo. Rather, by taking the institutional context into account, institutional

normative theories can provide guidance for efforts to make today’s world

more just (Blake 2001: 261-264). I employ – what Amartya Sen (2009: 5-8) calls

– realisation-focussed institutionalism. This form of institutionalism confines

the analysis to feasible institutional changes, while eschewing a transcendental

search for institutions that can satisfy the ideals of perfection. Realisation-

focussed institutionalism is particularly well-equipped to address

contemporary challenges, making it a perfect match for a problem-driven

approach to doing political philosophy.

A problem-driven approach focusses on identifying and addressing specific

real-world problems. It can be distinguished from tradition-driven and

methods-driven approaches. Whereas a tradition-driven approach views

political philosophy as a conversation within an established intellectual

tradition or school of thought, a methods-driven approach focusses on refining

and applying particular methods, such as rational choice theory or discourse

analysis, to the analysis of political phenomena. By contrast, a problem-driven

approach is inherently pragmatic and solution-oriented. When analysing the

democratic legitimacy of political institutions, it explores ‘what kinds of

problems a political system must address, such that it functions democratically,

and (...) how a variety of practices – voting, deliberating, representing etc. –

might be organised to address these functions’ (Warren 2017: 41-42). The

formulation of these questions is particularly evident in Chapter 4, in which I

examine how electoral constituencies must be designed in order to address

the democratic problem of legislative gridlock, which threatens the democratic

capacity of the people to rule themselves.

Evaluating solutions to problems often involves making comparisons. For

example, in Chapter 4, I make a comparison between geographic and

heterogeneous constituencies, and in Chapter 5, I compare and contrast

groupconscious constituencies and quota requirements, which form

alternative institutions for group representation. Besides comparing a real

institution with a hypothetical alternative institution – heterogeneous

constituencies – my comparisons also involve hypothetical scenarios. For

chapter 1

example, in Chapter 2, I examine whether border threats subject to coercion

by describing hypothetical scenarios for which nearly everyone shares a clear

intuition on whether they constitute an instance of subjection to coercion and

then drawing a parallel between the hypothetical scenarios and the

controversial case at hand. Hypothetical scenarios can be constructed in such a

way that they are equal on all other respects except for the morally relevant

factor. This can help us clarify what influences our moral intuitions. By

contrast, real-world cases are unable to isolate the morally relevant factors as

they tend to have too many details (Elster 2011: 442; cf. Kamm 2007: 427-428).

ArethecomparisonsthatImakefair?SeanInghamandDavidWiens(2024)

distinguish three types of comparative fallacies that a theorist could commit.

The first fallacy involves making an obscure comparison in which one or more

of the alternatives under consideration is underspecified. I avoid this fallacy by

clearly defining the hypothetical institutions and scenarios that I consider. The

second fallacy concerns making an irrelevant comparison in which contextual

factors are assumed that differ in important respects from those to which the

theorist applies her normative conclusions. This fallacy occurs, for example,

when two institutional arrangements are compared in ideal circumstances in

order to provide practical guidance in non-ideal circumstances. I avoid this

fallacy by focussing on non-ideal circumstances. The third fallacy involves

making a mismatched comparison in which the relevant contextual factors are

not held fixed. The risk of committing this fallacy played a role in Chapter 4, in

which I compare the effects of geographic and heterogeneous constituency

designs without keeping the constituency magnitude fixed. To avoid this

fallacy, I clearly delineate in my analysis the effects that I anticipate stemming

from the geographic-definition or heterogeneous design of constituencies, and

those arising from varying constituency magnitudes. This allows me to

advocate for replacing single-seat geographic constituencies with multi-seat

heterogeneous constituencies without falling into the trap of the mismatched

comparative fallacy.

It should be highlighted that my comparisons serve a normative purpose.

The dissertation explores how democratic boundaries ought to be drawn,

Introduction

rather than how democratic boundaries are drawn. Empirical facts play a role

in the analysis insofar as they provide the premises for the normative

argument: They specify the real-world circumstances and effects of normative

choices. But those empirical facts cannot tell us whether democratic

boundaries ought to be drawn differently and thus they cannot provide us

reason for reform.

My normative analysis provides weighty reasons for democratic reform. It

offers grounds for extending the demos on any regime of border laws to

refugees (Chapter 2), considering the partial democratic inclusion of denizens

(Chapter 3), replacing geographic constituencies by random constituencies

(Chapter 4), and creating group-conscious constituencies to combat the

cultural assimilation of certain marginalised groups (Chapter 5). Although this

may sound as a blueprint for democratic reform, I do not claim to have

resolved the disputes over one of the most contested topics in contemporary

political discourse. The contribution of my normative analysis lies in elucidating

the values, principles and arguments involved in any decision concerning

democratic boundary placement.

I The Boundaries of the

Demos

2 Border Coercion and Territorial Rights

Summary Democracy and territorial rights appear to be in tension. Whereas

theories of territorial rights typically justify a state’s unilateral right to control

its borders, the democratic legitimacy of border laws is often considered to

require the democratic inclusion of foreigners. However, the aim of this

chapter is to show that democracy includes and presupposes territorial rights.

Focussing on the coercion-based all-subjected principle – a widely endorsed

principle of democratic inclusion – I identify the conditions under which

subjection to a state’s border laws can be deemed coercive, in the sense that it

compromises the subjected person’s freedom as personal autonomy, and thus

triggers a claim to democratic inclusion. This leads to a distinction between

coercive threats and warning threats, and a moral notion of coercion. Given

this notion of coercion, a prospective immigrant’s claim to democratic inclusion

depends on the rights of a state to close its borders, the correlative duties of

prospective immigrants not to enter the territory and the proportionality of the

measures with which a state protects its rights. The demarcation of the

boundaries of the demos thus ultimately relies on a theory of territorial rights.

Building on prominent theories of territorial rights, I argue that refugees have a

claim to democratic inclusion, whereas other prospective immigrants only have

a claim to democratic inclusion when the border laws threaten with

disproportional consequences. The practical upshot is that changes are

required to make contemporary regimes of border control democratically

legitimate, but not the changes that cosmopolitans propose.

2.1 introduction

Most democratic states claim a right to unilaterally control and close their

borders to foreigners. But this unilateral right over territory is often considered

chapter 2

to be in fundamental tension with requirements of democratic inclusion.

According to some theorists, democracy requires the establishment of

cosmopolitan institutions that give articulation to a “global demos” on any

regime of border control, thereby enabling virtually everyone around the world

to participate in the making of border laws (Abizadeh 2008). The aim of this

chapter is to revise the view that democracy and territorial rights are in

tension. I will argue that requirements of democratic inclusion ultimately

presuppose a theory of territorial rights. This means that we should attend to a

theory of territorial rights in order to determine to whom a regime of border

control must be democratically justified.

My claim that democracy and territorial rights do not come into conflict

follows, in particular, when democratic boundaries are drawn on the basis of

the all-subjected principle – a widely endorsed principle of democratic

inclusion. According to the coercion-based interpretation of this principle, all

whoaresubjecttocoercionbyastate’slawsshouldbeincludedinthemakingof those

laws. This interpretation of the all-subjected principle is often justified by

reference to freedom as personal autonomy: Political participation in the

making of a state’s laws is necessary to combat or prevent the infringement of

autonomy that results from subjection to coercion by those laws (Abizadeh

2008: 42; Lovett and Zuehl 2022; Stilz 2019: 107-109; Wilson 2021). Whether a

person should be included in the making of a state’s laws then ultimately

depends on whether the laws compromise personal autonomy.

The coercion-based all-subjected principle yields different outcomes under

alternative accounts of coercion. Building on Joseph Raz (1986) and Alan

Wertheimer (1997), I develop a moral account of coercion. On this account, a

state’s laws subject to coercion and thus infringe a person’s autonomy only if

they alter the moral relationship between the state and the person, thereby

making the person dependent on the will of the state. I show that the moral

relationship between the state and a person is not altered if the state merely

enforces a prior right. This is the case if (a) the person has a prior duty, (b) the

state has a standing to enforce that duty, and (c) the state threatens to enforce

that duty with proportional consequences. The coerciveness of subjection to a

Border Coercion and Territorial Rights

state’s laws is, consequently, a function of pre-existent rights and duties. The

use of a moral account of coercion in the coercion-based all-subjected principle

thus leads to an understanding of democracy that is inclusive of territorial

rights.

Applying the moral coercion-based principle to border laws shows that a

prospective immigrant’s claim to democratic inclusion in a state’s border laws

depends on the enforceable rights of the state to close its borders, the

correlative duties of the prospective immigrant towards the state not to enter

the territory, and the proportionality of the measures with which the state

protects its rights. Building on several prominent theories of territorial rights, I

argue that refugees have a claim to democratic inclusion, whereas other

prospective immigrants only have a claim to democratic inclusion when the

borderlawsthreatenwithdisproportionalconsequences. Thepracticalupshot is

that changes are required to make contemporary regimes of border control

democratically legitimate, but not the changes that cosmopolitans propose.

The chapter is structured as follows: In Section 2.2, I define subjection to

coercion, following Raz (1986), as a form of subjection that necessarily

infringes freedom as personal autonomy, because it always makes the

subjected person dependent on the will of another. Subsequently, I justify the

use of the coercionbased all-subjected principle by explaining the role of

political participation in combatting or preventing the infringement of

autonomy that results from subjection to coercion. In Section 2.3, I examine

the conditions under which border laws can be deemed coercive. In Subsection

2.3.1, I identify a problem in current definitions of border coercion, namely

that they do not forge the link between subjection to coercion and

dependence on the will of another. Inspired by Wertheimer (1997), I argue in

Subsection 2.3.2 that this problem can be solved by making a distinction

between coercive threats and warning threats. The consequent notion of

coercion relies on prior rights and correlative directed duties, making it an

inherently moral notion of coercion. Given the necessary connection to

personal autonomy, the notion of coercion refers to a wrongful act and is

therefore also inherently moralised. In Subsection 2.3.3, I respond to two main

chapter 2

objections against such an inherently moral and moralised notion of coercion.

In Section 2.4, I combine the notion of coercion with theories of territorial

rights in order to identify the scope of subjection to border coercion. The

chapter concludes, in Section 2.5, by discussing the legitimate democratic

boundaries for contemporary border control decisions.

2.2 subjection and autonomy

Border control laws are implemented and imposed via the state’s coercive

powers. According to the prominent coercion-based interpretation of the

allsubjected principle, all who are subject to coercion by a state’s laws should

be given a right to participate in the making of those laws. This principle of

democratic inclusion can be justified by reference to the underlying value

ethnographic and functionalist theories of territorial rights (e.g., Kolers 2009; Rawls 1999),

although I believe that they lead to the same conclusions.

of democracy, which is, in turn, often couched in terms of the protection of

freedom as personal autonomy (Lippert-Rasmussen and Bengtson 2021:

1028-1030).

Personal autonomy describes a person’s capacity to ‘live a life freely

chosen’, meaning that a person can control, to some degree, their own destiny,

fashioning it through successive decisions throughout their lives (Raz 1986:

370, 372). To have this capacity means to be able to actively pursue the

intentions and plans that one has formulated and reflectively endorsed

through one’s own independent reasoning process. So understood, an

autonomous life is possible only if a person

(1) has the appropriate mental capacities to formulate one’s own, reflectively

endorsed, practical judgements,

(2) enjoys an adequate range of options to act on those practical judgements,

and

(3) can formulate those practical judgements independent from the will of

another.

Border Coercion and Territorial Rights

Following Raz (1986: 378), I define subjection to coercion as a form of

subjection that necessarily makes the will of one person dependent on that of

another. This means that subjection to coercion, by definition, always

compromises independence – the third condition of personal autonomy.

Subjection to coercion may, furthermore, sometimes diminish a person’s

options to such a degree that there is an inadequate range of alternative

options left for the person to choose from. It may also sometimes hinder the

development of appropriate mental capacities to formulate practical

judgments. But it always undermines the proper relations between the coercer

and coercee by making the coercee dependent on the will of the coercer.

Political participation in the making of coercive laws can mitigate or remedy

the compromising effects of subjection to coercion on personal autonomy.

On the one hand, political participation can prevent the ills of subjection to

coercion. While the laws cannot fully reflect an individual’s own judgements,

they can implicate the shared will or joint intentions of all participants, thereby

preventing that the laws are solely decided by an alien will (Lovett and Zuehl

2022; Stilz 2019: 107-109). On the other hand, political participation can cure

the ills of subjection to coercion by providing a justification of state coercion

that is consistent with personal autonomy. As our lives will always be shaped

by our social life in some ways, the shared authority over our lives through

political participation in democratic decision-making may be the best we can

get when respecting all citizens’ claims to personal autonomy (Wilson 2021). In

either of these two ways, the right to participate in the making of those laws

can contribute to protecting the autonomy of individuals subjected to

coercively enforced laws (cf. Abizadeh 2008: 42).

Recognising the value of political participation for the protection of

personal autonomy against coercive encroachment leads to the coercion-based

all-subjected principle of democratic inclusion. The principle tends to be more

restrictive in scope than its prominent alternative – the all-affected principle –

according to which all who are affected by the laws of a state should be given a

right to participate in the making of those laws. After all, being subjected

implies being affected but not vice versa (Goodin 2016: 366; Miller 2009:

chapter 2

214).The question is whether the coercion-based all-subjected principle is also

more restrictive in scope, in the sense of not having a global scope, when it

comes to border laws.

2.3 subjection to border coercion

The state can subject those trying to cross its territorial borders to coercive

acts. That is, it can subject potential migrants to a non-communicative form of

power by directly using physical force against them or restricting the physical

space in which they can move (e.g., through imprisonment). The state can also

subject potential migrants to coercive threats. It can communicate the

intention to use physical force if a person were to attempt to cross its borders.

As coercive threats are communicative forms of power exercise, they may

reach beyond the civic and territorial boundaries of the state. But how far do

they reach? To determine the scope of subjection to border coercion, we need

to establish the necessary conditions under which the threats posed by border

laws can be deemed coercive, in the sense that they make the threatened

dependent on the will of the state.

2.3.1 Coercive Threats versus Hypothetical Threats

Subjection to coercion has a broader scope than successful coercion, as a

person who is being successfully coerced is also subject to coercion but not

vice versa (Abizadeh 2008: Appendix). For example, a migrant is subject to

coercion if she defies the state and crosses the state’s borders illegally, while

she is only successfully coerced if the coercion by the state helped prevent her

from crossing the border. Arash Abizadeh (2008: Appendix) proposes that a

threat subjects to coercion only if it is

(1) a conditional communicated intention by the threatener

(2) to use physical force against the threatened,

(3) that credibly

(4) renders a specific course of action less eligible to the threatened.11

Border Coercion and Territorial Rights

Using this definition, border laws subject virtually everyone around the world

to coercion, as border laws communicate to virtually everyone around the

world a credible intention to use physical force when they illegally enter the

territory, rendering the action of illegally entering the territory less eligible.

Border laws differ from most other laws in communicating a threat to virtually

everyone around the world (Abizadeh 2021b: 609). Consider the border law

that threatens anyone who enters the territory with deportation. This border

law can be described as stating:

It holds for everyone that if one enters the territory then one is

deported.

This law claims universal jurisdiction as its scope is not conditional on territorial

presence. A migrant can be a subject of the border law when she is currently at

the border, but also when she is residing at the other side of the globe. This

means that border threats are never hypothetical to anyone.12

By contrast, a threat is hypothetical to a person when she only becomes a

subject to the threat by a choice that she makes but can avoid making (cf.

Miller 2010: 115). Consider the domestic law by a dictatorial state that

threatens to imprison anyone who demonstrates on its territory. This threat

can be more precisely formulated as stating:

11The conditions are based on Nozick (1969) and Raz (1986: 149). They can be put in formal

form (cf. Abizadeh 2008: 58): 𝑃subjects 𝑄to a coercive threat if and only if

(1) 𝑃communicates to 𝑄the intention to cause outcome 𝑋if 𝑄undertakes action 𝐴,

(2) 𝑋involves the use of physical force against 𝑄,

(3) 𝑄believes that 𝑃has the capacity to cause 𝑋and intends to do so if 𝑄does 𝐴, and

(4) 𝑄believes that 𝑋∧ 𝐴is worse for her than (¬𝑋) (¬∧𝐴), such that 𝑋provides 𝑄a reason

not to do 𝐴, and 𝑃’s reason for threatening 𝑋is her belief that 𝑋provides 𝑄a reason not

to do 𝐴.

12Besides having a universal scope and thus being non-hypothetical to everyone, a border

threat is also credible to everyone around the world because if one enters the territory then

the state has the capacity to enforce the threatened consequences. Observe that the

hypothetical nature and the credibility of a threat can come apart. Consider a King of a two-

province entity who is only able to enforce his threat in province A but not in province B.

Suppose that the King threatens to everyone on his territory that if one demonstrates on the

chapter 2

territory then one is executed. The King’s threat is non-hypothetical to everyone on his

territory but it is only credible to those in province A. I am indebted to David Miller for this

example.

It holds for those on the state’s territory that if one demonstrates then

one is imprisoned.

Given the restriction to territory in the scope of the threat, this threat is

hypothetical to those outside the dictatorial state’s territory. The threat may

deter those outside the territory from performing the action that would make

them become a legal subject (i.e., entering the territory), but this is not a

deterrence from the targeted action by the law (i.e., not demonstrating). As a

hypothetical threat does not deter the threatened from taking the targeted

action, it does not make the threatened dependent on the will of the

threatener.

However, while border threats are non-hypothetical to all foreigners – their

scope is global – this does not entail that they also subject everyone around

the world to coercion. The conditions for subjection to coercion proposed by

Abizadeh are too inclusive to capture the normative significance of coercion.

They only ensure that a coercive threat rules out a specific course of action for

the threatened. But when a threat rues out a specific course of action, the

threatened is not necessarily made dependent on the will of the threatener

and, thus, the third condition of personal autonomy is not necessarily

compromised (Miller 2010: 113). Whether a threat compromises a person’s

independence also depends on the type of options that the threat rules out.

David Miller (2010) suggests that a person is made dependent on the will of

the threatener only if the threat leaves her with an inadequate range of

options. A threat would leave the threatened with an inadequate range of

options if the threatened is forced to take a relatively specific course of action.

Coercive threats then involve ‘forcing a person to do some relatively specific

thing’ and should be distinguished from preventative threats that involve

‘forcing a person not to do some relatively specific thing while leaving other

options open’ (Miller 2010: 114). Border threats are generally preventative

threats: they try to force migrants not to enter the state’s territory.

Border Coercion and Territorial Rights

However, Miller’s distinction between coercive and preventative threats is

basedonthequestionableassumptionthatthecoercivenessofathreatdepends on

whether the threatened is left with such an adequate range of options that she

can avoid the targeted action. This assumption conflates avoiding

communicative coercion (a coercive threat) with avoiding non-communicative

coercion (a coercive act). Suppose that a would-be immigrant has sufficiently

good alternative options available that she can refrain from entering the state’s

territory. By not entering the state’s territory (targeted action), the would-be

immigrant avoids being imprisoned (coercive act). While she avoids subjection

to a coercive act, there is no reason to think that she also avoids subjection to a

coercive threat by the border law. In fact, as the discussion on hypothetical

threats has shown, the would-be immigrant simply has no action by which she

can prevent becoming subject to a (coercive) border threat. Moreover, if she

refrains from entering the state’s territory because of the threat, then this

change in behaviour suggests that she is subject to a successful coercive threat.

As Abizadeh (2008: 124) clarifies, ‘the whole point of a coercive threat is that it

subjects a person to communicative coercion even if, having succumbed to it,

she avoids the threatened deployment of force.’ A border threat can thus

potentially make the threatened dependent on the will of the threatener, even

if it is preventative and leaves open an adequate range of option. As the

coerciveness of border threats does not depend on whether the migrant is left

with an inadequate range of alternative options, the question remains: What

type of options does a threat need to rule out to subject to coercion by making

a person dependent on the will of the threatener?

2.3.2 Coercive Threats versus Warning Threats

To forge the link between subjection to coercion and an infringement of

personal autonomy, coercive threats should not only be distinguished from

hypothetical threats but also from warning threats. Just like a coercive threat, a

warning threat is a conditional, communicated intention that credibly and non-

hypothetically renders an action less eligible. But, in contrast to a coercive

threat, a warning threat does not change the moral relationship between the

chapter 2

threatener and the threatened. This moral relationship can be characterised by

the prior rights and duties that the threatener and threatened have towards

each other. A warning threat merely warns the threatened about the

threatener’s prior rights in order to ensure compliance by the threatened with

her prior duties. As a warning threat merely reaffirms the existing moral

relationship between the threatener and the threatened, it does not make the

threatened dependent on the will of the threatener.

An exemplary instance of a warningthreatis one in which the threatened is

informed about the intention of the threatener to protect her prior claim

rights. Following Hohfeld (1917), claim rights are always correlated to duties

that are directed towards the claim rights-holder. A threat aimed at protecting

prior claim rights thus serves to ensure compliance by the threatened with the

duties owed to the threatener. As such a threat only forces the threatened to

do what she already has a duty towards the threatener to do, it does not make

the threatened an instrument of the will of the threatener.

Suppose I tell my obnoxious neighbour that I will call the police to forcefully

remove her from my premises if she does not stop persisting in trying to enter

my house. While I communicate a conditional, credible, and nonhypothetical

intention to my neighbour that renders the action of trying to enter my house

less eligible to her, this threat should not be identified as subjecting my

neighbour to a coercive threat. The threat fails to make my neighbour an

instrument of my will as it does not alter our moral relationship. My right to

call the police to protect my private property is already part of our moral

relationship, even if my obnoxious neighbour happens to be unaware of it.

That is, my neighbour already has a duty towards me to respect my property

rights and my threat only warns her of my enforceable right to protect my

private property if she does not fulfil her duty: It is a warning threat.

A warning threat can also aim at ensuring compliance by the threatened

with a duty that is not directed towards the threatener but towards a third

person. The threatener may have the standing to enforce or the standing to

demand enforcement of the duties that the threatened owes to the third

person. If a threat reflects this standing, it does not change the moral

Border Coercion and Territorial Rights

relationship between the threatener and the threatened, and is therefore also

a warning threat.

Suppose that I observe a violent husband abusing his partner and threaten

him to call the police unless he stops right away. My threat merely warns the

husband that I have the standing to demand enforcement of his duties towards

his partner by calling the police and that the police has the standing to enforce

his duties by taking him to the police station. While the violent husband may

not be aware of it, my standing to demand enforcement by the police is

already part of our moral relationship. Similarly, suppose that my obnoxious

neighbour has either an undirected duty or a duty towards the moral

community of citizens not to pollute the uninhabited forest behind our house.

This duty is enforceable by the police and my threat to call the police unless my

neighbour stops polluting the uninhabited forest is warning her of my standing

to demand enforcement by the police of her duties. As my threat does not

change the moral relationship between me and my neighbour, it is a warning

threat.

However, not every threat communicating an intention to enforce or to

demand enforcement of duties is a warning threat. The threatener must also

threaten with proportional consequences. For example, I am licensed to

request the police to forcefully remove my obnoxious neighbour from my

premises, but I am not licensed to kill my obnoxious neighbour when she

persists in trying to enter my house. Similarly, the landowner of a remote island

subjects virtually everyone around the world to a warning threat when she

threatens to repatriate anyone who enters the island or threatens to build a

fence around her island to prevent anyone from entering. But she subjects

virtually everyone around the world to a coercive threat when she threatens to

shoot anyone who enters the island. The effect of such a threat is that a

potential decision by the threatened on whether to enter the island is no

longer informed by the rights of the landowner and the ensuing duties of the

threatened but, rather, by the disproportional consequence that the

landowner threatens to bring about. A threat communicating the intention to

chapter 2

use a disproportional amount of force thus makes the threatened an

instrument of the will of the threatener.

The distinction between coercive threats and warning threats takes the

moral relationships (how the subjects ought to behave towards each other)

between the threatener and the threatened as the baseline state of affairs

against which the coerciveness of a threat should be evaluated. If, by contrast,

the normal relationship (how the subjects are actually behaving towards each

other) would be taken as the baseline state of affairs, certain threats may be

misidentified as non-coercive. Consider Robert Nozick’s (1969) example of a

slave owner who regularly beats his slave. Suppose that the slave owner one

day tells his slave that he will continue the regular beatings if the slave does

not performaspecificaction. Mostpeopleagreethatthethreatbytheslaveowner

makes the slave an instrument of the owner’s will and, therefore, subjects the

slave to a coercive threat. This conclusion is reached when identifying the

moral relationship between the slave owner and the slave as the baseline state

of affairs. After all, the slave does not have a duty towards the slave owner to

perform the specific course of action and the slave owner threatens with

disproportional consequences. However, this conclusion is not reached if the

normal relationship between the slave owner and the slave is taken as the

baseline state of affairs. After all, the slave is regularly beaten in the normal

course of events and, thus, the slave would be subject to a threat that does not

change their normal relationship.

To conclude, the distinction between coercive threats and warning threats

is based on the idea that a threat only makes the threatened dependent on the

will of the threatener if it changes their moral relationship. Whether a threat

changes their moral relationships depends on the enforceability of prior duties

and the proportionality of the threatened enforcement. This leads to a new

necessary condition for coerciveness: It means that a threat subjects to

coercion only if

(5) (a) the threatened does not have a duty to undertake the targeted action,

Border Coercion and Territorial Rights

(b) the threatener neither has a standing to enforce the duty nor a standing

to demand enforcement of the duty, or

This necessary condition ensures that a coercive threat always compromises a

person’s independence – the third condition of personal autonomy. It ensures

that an option is ruled out for the threatened as a consequence of the will of

the threatener.

2.3.3 A Moral and Moralised Notion of Coercion

The notion of coercion that I propose is both moral and moralised. It is a moral

notion, because it relies on a normative theory concerning prior rights and

duties. It is a moralised notion, because it is based on the assumption that

coercion always compromises personal autonomy and is thus an inherently

wrongful act.

A common objection to a moralised notion of coercion is that it would deny

the possibility of justified coercion, despite frequent and sensible discussions

on the justification of coercion (Cohen 1997: 13; Wertheimer 1997:

244).However, this objection loses force when we understand that the

moralised notion of coercion concerns pro tanto wrongs and not all-things-

considered wrongs. The pro tanto wrongness of coercion clarifies not only that

coercion can be all-things-considered justified but also that coercion must be

justified in order to be permissible (Kushner 2019: 460-467). It is important to

note here that the moral considerations figuring in the justification of coercion

are distinct from the moral considerations used to determine whether

someone is coerced. That is, the moral reasons of the threatener to subject the

threatened to coercion do not need to align to the duties of the threatened

that help to determine whether she is subject to coercion (Wertheimer 1997:

256).Consider the possibility of – what Miller (2016: 163) calls – ‘a tragic

conflict of values’ between refugees and a state, in which refugees have a

liberty right to enter a state but the state justifiably does not admit them

chapter 2

because it has carried out its fair share of responsibility and cannot

accommodate further immigrants without serious costs to social justice and

cohesion. The state may have a liberty right to close its borders, which does

not lead to a correlative duty on the part of refugees. In this case, the state’s

border restrictions are pro tanto wrong and, thus, coercive towards refugees.

But weighing the interests of refugees in entering this particular state against

the interests of its citizens in retaining a system of social justice and cohesion

could potentially lead to the conclusion that the border restrictions are all-

things-considered justified and, thus, present a case of justified border

coercion.

The related worry might be raised that the moral notion of coercion has

anti-democratic implications. If all legal threats can be based on rights and

correlative duties that are justified independent of a democratic procedure

and, therefore, do not subject to coercion, is there then still a need for

democracy? Suppose a small aristocratic group establishes a system of criminal

law that accurately protects independently morally justified rights and duties.

The moral notion of coercion seems to imply that any enforcement of those

laws is merely warning citizens about the protection of justified entitlements.

And since warning threats do not compromise citizens’ autonomy, there seems

to be no need to give them participation rights.

To respond to this worry, different types of justifications should be

distinguished. Some moral rights and correlative duties can be pre-

institutionally justified. They involve claims ‘that could logically exist prior to a

legal system or social practice, and whose binding force is moral, not legal or

conventional’ (Stilz 2019: 39). For example, according to neo-Lockean theories,

territorial rights are often pre-institutionally justified and limited forms of

property can also be pre-institutionally justified (cf. Moore 2015: 15-33; Nine

2012: 72-93; Stilz 2019: 36-39). Similarly, the law prohibiting murder could be

pre-institutionally justified, as grounded in a duty to respect the integrity and

autonomy of others. Given a pre-institutionally justified duty, those laws do not

infringe autonomy and I am thus willing to accept that a democratic

justification is not required for such laws.

Border Coercion and Territorial Rights

But the majority of laws creates duties that cannot be pre-institutionally

justified. These duties either remain underspecified or underdetermined in the

absence of social institutions or are themselves the product of social

institutions (Stilz 2019: 39). These laws have to be democratically justified in

order to prevent or mitigate the threat that they are imposed by an alien will.

Indeed, if these laws are democratically justified, there may be a duty towards

one’s fellow citizens to comply with those laws. The existence of such a

directed duty implies that democratically justified laws do not subject to

coercion and, consequently, that democratic inclusion can prevent the ills of

subjection to coercion. In the case of underdetermined rights and duties, the

moral notion of coercion may thus even provide a reason for democracy.

However, some uses of physical force may form an exception to this idea

that laws, based on pre-institutionally or democratically justified duties, are not

coercive. Consider the physical force used to punish a convicted criminal (e.g.,

through imprisonment). Criminal punishment often serves one or more of the

following purposes: It provides retribution, deterrence, expressive

denunciation or supports rehabilitation. If a criminal punishment solely

supports rehabilitation, an offender may have a duty to accept this

punishment, grounded in a duty to reduce one’s own likelihood of recidivism

(Howard 2017). But criminal punishment rarely aims solely at rehabilitation.

The punishment of imprisonment, for example, rather seems to increase the

likelihood of recidivism. Since criminal punishment serves purposes beyond

rehabilitation, it could be argued that even a murderer does not have a moral

duty to accept imprisonment – as is reflected in penal codes that do not

consider escaping a criminal offence. Hence, we can say that the democratically

justified criminal law subjects to a coercive act, in line with my view that there

is space for a democratic justification of coercion within a moral framework.

2.4 territorial rights and border coercion

Given the moral notion of coercion that I defended, a theory of rights and

duties is required to determine whether an exercise of power subjects a person

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to coercion and, thus, restricts their autonomy. In Section 2.3.2, I defended this

moral notion of coercion on the basis of the logical possibility that there are

property rights and that there is a moral duty to respect those rights. Now, if I

were to draw the conclusion that the protection of private property does not

restrict freedom as autonomy, a moral endorsement of property rights and

correlative directed duties would be required (Cohen 1997: 12). Similarly, to

determine whether border control policies restrict the freedom as autonomy

of virtually everyone around the world and, thus, to determine the scope of

subjection to border coercion, we need to attend to a theory of territorial

rights and duties.

Over the past decade, a new body of literature has emerged that aims to

explain and justify rights over territory. Territorial rights can be separated into

three main elements: the right of jurisdiction, the right to the territory’s

resources and meta-jurisdictional rights (Miller 2012: 252-253). These

metajurisdictional rights are often considered to encompass a right to exclude,

which is the right to make and enforce morally binding decisions on territorial

admission. When a state has such a right, prospective immigrants have a

corresponding duty to obey its decisions on territorial admission, even if these

decisions are not morally justified. That is, the right to exclude reflects the

legitimacy toimposeimmigrationrestrictions,whetherornotthoserestrictions are

justified (Miller 2012: 265; Stilz 2019: 89,188; Yong 2017: 463-464).28

of others, but the punishment of imprisonment for crimes by property is far more severe than

the harms done. It would thus be especially odd to think that the thief has a duty to accept a

criminal punishment, such as imprisonment, that violates their own rights. See also Goldman

(1979: 44-45, 59).

28Most theories of territorial rights focus on the right to exclude immigrants from the

territory (Moore 2015: 191). In that case, the state’s right to exclude applies to would-be

immigrants (except refugees) but not to other travellers, like short-term visitors and tourists.

States typically claim the right to exclude from their territory. The question

is whether states actually have such a right to make and enforce morally

binding decisions on territorial admission. In other words, the question is

whether prospective immigrants have a corresponding enforceable duty to

comply with the state’s border laws. Those who answer this question in the

Border Coercion and Territorial Rights

affirmativeoftenappealtooneoftworationales.Accordingtothefirst,theduty of

most prospective immigrants to respect the state’s border laws is grounded in a

pre-institutional ownership of land by the individuals or collective that the

state represents. The second appeals to a natural duty of justice to justify the

political authority of border laws over most prospective immigrants.29 Each of

these rationales typically excludes refugees from the group of prospective

immigrants that have duties to respect a state’s border laws. As these

rationales are subject to debate, my aim is not to advocate for them, but rather

to show their implications for the coerciveness of border laws.30 Let me

therefore give a brief account of each rationale.

First, the duty to respect the state’s border laws could be grounded in the

duty to respect the use-right or ownership of the individuals or collective

occupying the land (Moore 2015; Nine 2012; Stilz 2019) or the nation formed

by the people occupying the land (Miller 2012). These entities can establish a

normatively valuable relationship to the land, by changing the land via labour

(Nine 2012: 73-93), by exercising self-determination on the land for a

significant amount of time (Moore 2015: 34-70; Stilz 2019: 33-85), or by

embedding cultural value in the land with the passage of time (Miller 2012:

265). This normatively valuable relationship gives them strong interests not to

be interfered with their use of the land in ways that could undermine their

shared social, cultural and political practices. Just as with the use of other

material goods such as property, these weighty interests in the use of the land

ground a duty on others not to interfere with those interests. After all, the

normatively valuable

I thank Christine Straehle for pointing this out.

29A third prominent rationale is based on freedom of association (Wellman 2008), which I

do not discuss because I agree with Fine (2010: 353-355) that this rationale fails to establish a

connection between groups and territory, and thus only succeeds if one also presupposes

some form of territorial ownership.

30For an objection to the existence of a duty to comply with border laws, see, for example,

Hidalgo (2019).

relationship to the land can only be enjoyed as long as there is a liberty to

reside permanently on the land and a claim right against others not to interfere

chapter 2

with their use of the land in ways that can undermine their special relationship

to that land (Stilz 2019: 58).

This ownership over a particular piece of land justifies the right to exclude.

The primary possessor of the right to exclude may be the collective of people

occupying the land (Nine 2012; Moore 2015), the nation formed by the people

occupying the land (Miller 2012), or the state as the legitimate representative

of the people occupying the land (Stilz 2019). Even if the state is not the

primary possessor of the right to exclude, it is still assumed to have the

standing to enforce

therighttoexcludeastherepresentativeofthepeopleornationholding this right.

Accordingly, borne out of respect for the ‘self-preservation and autonomy’ of

the people or nation using the land, most prospective immigrants have a duty

to obey the state’s border laws.

However, this right to exclude is conditional. The people occupying the land

can only legitimately use the land within the bounds of the Lockean proviso,

which states that the acquisition or holding of property is only legitimate if

‘enough and as good’ is left for others. It should ensure that the acquisition or

holding of property does not undermine the value of a system of property

rights. In a similar vein, the proviso can be applied to the ownership of the

people occupying the land. The use of land should then not undermine the

ability of another person or collective to establish a valuable relationship to a

particular piece of land. As refugees have nowhere else to go, the Lockean

proviso implies that there is no claim right to the use of the land against

refugees. Accordingly, in contrast to most prospective immigrants, refugees are

not under a duty to comply with border laws (Stilz 2019: 48-49, 63; Nine

2012).

Second, the duty to respect the state’s border laws could be grounded in a

natural duty of justice. This is a general duty of individuals to support and obey

the laws of their state provided that they are sufficiently just (Rawls 1971: 99).

According to Miller (2023: 842-846), the natural duty of justice can generally be

extended to prospective immigrants, so that they have a pro tanto duty to obey

border laws, which can be overridden on grounds of necessity. This idea of

Border Coercion and Territorial Rights

necessity is best introduced through an example on property rights. Consider

Joel Feinberg’s (1978: 102) example of a backpacker who breaks into a

privately owned mountain cabin in order to escape a dangerous snowstorm.

This backpacker has a pro tanto duty to respect the owner’s property rights but

a breach of this duty is justified in these particular circumstances (Miller 2023:

846). It has been argued that refugees can legitimately appeal to necessity,

because entering the territory unauthorised is the only way for them to ensure

their physical security or vital subsistence needs (Mancilla 2020; Miller 2023:

844-46). As a consequence, refugees do not have an all-things-considered duty

towards the state to stay away from the territory, whereas other prospective

immigrants may have such a duty.

Combining the moral notion of coercion with the existence of a duty to

obey border laws leads to the conclusion that a state (itself or as an agent of

the people or the nation) can enforce its immigration restrictions without

infringing the autonomy of virtually everyone around the world. While a state’s

border threats towards refugees are generally autonomy infringing and thus

coercive, a state’s border threats towards most other prospective immigrants

are arguably not autonomy infringing and thus not coercive. The latter is only

the case when the state threatens to enforce its right to exclude those

immigrants with proportional consequences. It is beyond the scope of this

chapter to work out a theory of proportionality. In line with the discussion on

the proportionality of threats in Subsection 2.3.2, I take proportional

consequences generally to be forced repatriation, but not execution or

imprisonment on a remote island. Since many prospective immigrants, except

refugees, can plausibly be considered to have a directed duty to stay away from

the territory if the state wishes so, the state’s proportional threats merely warn

them that failing to fulfil their duty has consequences.

2.5 the democratic boundaries for border control

The aim of this chapter has been to show that the boundaries of the

democratic people cannot be determined without a theory of territorial rights.

chapter 2

I have argued that, in order to protect freedom as personal autonomy, all who

are subject to coercive border laws should be given a right to participate in the

making of those laws. To determine who is subject to coercive border laws, I

identified under which conditions the link is forged between subjection to

coercion and an infringement of personal autonomy. This led to a moral notion

of coercion, a distinction between coercive threats and warning threats, and a

new necessary condition for subjection to coercion. According to this

condition, a person is subject to border coercion only if the person does not

have a duty to stay away from the territory, the state does not have standing to

enforce the duty or the state’s border threats are disproportional to enforce

the duty. Combining this condition with prominent theories of territorial rights

showed that refugees are subject to border coercion, whereas other

immigrants are only subject to border coercion when the laws threaten with

disproportional consequences. What does this mean for the democratic

legitimacy of current regimes of border control?

Many regimes of border control around the world threaten with

disproportional consequences. States do not just expel immigrants from their

territory but also aim to deter other would-be immigrants. The Australian

immigration detention islands are a prime example of this type of border

policy, but it is also reflected in the lack of means invested in providing

immigrants in their basic needs and offering them a speedy immigration

process as soon as they arrive. In the Netherlands, for example, the result is

that immigrants sleep in tents on the streets and hear only after five to six

years that they are not allowed to stay. Although all states may have an

incentive to stick to their strategy of deterrence, this race to the bottom has to

stop in order to have just and democratically legitimate regimes of border

control.

If border control regimes indeed satisfy a criterion of proportionality, there

is only one group of would-be immigrants that has a right to participate in the

making of border laws, namely refugees. This group should either jointly

control border decisions with citizens in cosmopolitan institutions or, more

realistically, should get fair representation in border decisions at the national

Border Coercion and Territorial Rights

level. Democracy thus does not require a global demos on border laws but

allows for the differentiation of political influence in accordance with citizens’

and foreigners’ rights over the territory.

3Denizenship and Democratic Equality

Co-authored by Daniel Häuser

Summary Democracy is assumed to require the equal political inclusion of

denizens, as sustained political inequalities between members of society

seemingly undermine the democratic ideal of equal freedom. This assumption

is prominently expressed by Walzer’s Principle of Political Justice, according to

which democratic institutions must attribute equal political rights to denizens

in order to sustain their equal protection from domination and the recognition

required for free agency. This chapter rejects this influential assumption. We

argue that denizenship constitutes a social position, in which equal freedom

can be enjoyed without political inclusion on equal terms to citizens. Many

denizens are citizens somewhere else, and enjoy status, rights, and protections

in virtue of their external citizenship, which can protect them from domination

and provide them with the recognitional basis of self-respect. The cross-border

relationships between denizens and their home country, as well as between

the host country and the home country, must therefore be considered when

evaluating claims to political inclusion. Accepting the democratic legitimacy of

the partial political inclusion of denizens allows us to focus on the most

pressing political claims, such as those of refugees and stateless persons.

Partial inclusion schemes can also make less restrictive immigration policies

more rational and desirable for citizens.

3.1 introduction

According to the latest United Nations Migration Report, approximately 281

million people live outside their country of origin, often for extended

periods.Host countries pursue different strategies for politically including these

foreign residents, or denizens. Countries such as Denmark and Switzerland

chapter 3

favour a partial inclusion model. They quickly include denizens to some extent

in democratic decision-making, for instance through local voting rights, but

make full political membership virtually inaccessible. Other countries, such as

Canada, favour an all-or-nothing model of inclusion: They do not grant partial

political rights but encourage denizens to go on a path to citizenship. Many

political philosophers share a deep and abiding commitment to ‘citizenmaking’

and believe that only the all-or-nothing model is democratically legitimate

(Kymlicka 2022: 247,238, n.11; Song 2018: 158; Torresi 2009: 24).By contrast,

we argue that the partial political inclusion of denizens can also be compatible

with democratic commitments, and thereby reject the widely shared

assumption that territorial admission must escalate to full political inclusion.

The all-or-nothing model strikingly prohibits states from offering

prospective migrants territorial admission without a path to citizenship, even if

some migrants would gladly accept such offers, and even if such offers

genuinely provide them with additional options. This prohibition creates a

tension between democratic requirements and aspirations of global justice, as

it limits how democratic states may pursue valuable policy goals. This tension

comes out clearly in the ‘numbers-versus-rights trade-off’: Increased labour

migration is routinely advertised for promoting global justice. At the same

time, there is evidence that citizen support for increased labour migration

decreases if immigrants are entitled to full political inclusion (Bauböck and

Ruhs 2022: 535; Blatter et al. 2022: 1215; Van Parijs 2022: 609). Our arguments

dissolve this apparent tension between democracy and global justice, as we

show that it is often up to receiving states to decide whether to include

denizens fully in the democratic process. Our position decouples territorial

admission from full political inclusion and access to citizenship, and thereby

expands the space of democratically legitimate policy options.

Many republican theorists share this commitment to citizen-making and

consider the naturalisation of denizens to be the only way to ensure the equal

political status of all members of society. Most influentially, Michael Walzer

voiced the concern that the (partial) political exclusion of denizens renders

them vulnerable to domination and denies them the recognition that

Denizenship and Democratic Equality

constitutes their social basis of self-respect.5 Denizens are thereby relegated to

a form of second-class citizenship, an inferior social position reminiscent of the

metics of ancient Athens (1983, 60). Recently, several contributions have

questioned this commitment to citizen-making in the case of migrants who

pursue temporary migration projects (Ottonelli and Torresi 2022; Bauböck and

Ruhs 2022). We argue that some denizens pursuing open-ended migration

projects need not be fully politically included either, as their external

citizenship protects them from domination and provides them with a secure

social basis

that states only have the right to exclude from full political membership.

5 Walzer (1983: xii-xiii) emphasises the commitment of democratic societies to ensuring

that their members can live ‘free from domination’ and can engage in mutual ‘recognition of

one another as human beings’. The recognitional dimension of republicanism has recently

been emphasised again, cf. Schuppert (2014) and Garrau and Laborde (2015). While some

republicans have extended their conception of domination by a recognitional component, we

believe that it is analytically clearer to discuss domination and failures of recognition as distinct

threats to the equal freedom of members of society. This recognitional dimension has also

been emphasised by liberals and communitarians, cf. Rawls (1971), Honneth (1996) and Wilson

(2019). The commonalities between liberal, communitarian and republican concerns with

recognition and self-respect are highlighted by Rostbøll (2023: 98-102).

of self-respect. External citizenship denotes the extra-territorial status, rights

and protections provided by the home state (Bauböck 2009). Unlike, Athenian

metics, denizens who enjoy external citizenship in a democratic polity and

occupy a secure and recognised guest status in their host state are not

confined to an inferior status. Indeed, Walzer (1983: 60) already hinted at the

idea that ‘the original citizenship of guests’ could function as a substitute for

their full political inclusion, but we develop this idea systematically.

Some denizens profit more from their external citizenship than others.

Such differences must be taken into account when determining the degree of

political inclusion that denizens need in order to enjoy an equal political status.

Expats from stable and powerful democracies enjoy significant extraterritorial

rights and protections, as well as recognition of their status as moral and

political agents. Many temporary labour have secure rights to re-enter their

country of origin, but come from less politically or economically influential

countries and have fewer opportunities for exercising their political agency at

chapter 3

home. By contrast, stateless persons and many refugees lack external

citizenship altogether. Accordingly, we argue that denizens have differentiated

claims to political inclusion. While a path to citizenship should be secured for

the most vulnerable – refugees and stateless persons – local voting rights or

other partial inclusion schemes may be appropriate for citizens from powerful

and stable democracies. Thus, republican democratic commitments permit

political rights-differentiation between denizens and citizens, and also among

denizens.

We proceed by situating our argument in the debate on democratic

equality in Section 3.2. Subsequently, in Sections 3.3 and 3.4, we discuss

Walzer’s concerns with non-domination and recognition in their most

prominent contemporary explications for the case of denizens who effectively

profit from their external citizenship. We conclude, in Section 3.5, by

considering the political potential of our position in light of its implications for

denizens who profit less from their external citizenship.

3.2 equal freedom, citizenship, and a democratic say

The widespread view that territorial admission must escalate to full political

inclusion derives from two premises: the democratic inclusion thesis, according

to which denizens must be included in the democratic process, and the

democratic equality thesis, according to which all who are included in the

democratic process must receive an equal democratic say. We argue that

(some) denizens may be partially politically included, and thereby deny the

democratic equality thesis. In this section, we situate our argument in the

debate on citizenship and democratic equality.

The democratic inclusion thesis draws support from standard principles of

political inclusion, like the all-affected interests and all-subjected principles. As

denizens are clearly affected by and subjected to the rule of their host state,

these principles imply that denizens should be democratically included

(Beckman2006;Song2009;Lenard2015).Traditionally,republicansemphasise the

connection between democratic participation rights and citizenship, and

Denizenship and Democratic Equality

accordingly hold that those who are democratically included must be ‘set on

the road to citizenship’ (Walzer 1983: 60; Benton 2014: 50). They worry that

the extension of a democratic say to non-citizens would undermine the value

of citizenship. We consider this worry overstated. The value of citizenship does

not solely derive from rights to democratic participation. Citizenship denotes a

legal status that comes with a bundle of rights (as well as duties), which

include, inter alia, rights to a democratic say as well as rights to reside on and

re-enter a states’ territory, welfare benefits at home, or diplomatic protection

abroad (Benton 2014: 65). While citizenship may be a sufficient ground for

political inclusion, sustained territorial presence also provides strong reasons

for inclusion (Song 2018; Carens 2013; Lenard 2015). Territorial models of

enfranchisement ensure that all who are subjected to the state’s rule have a

right to a democratic say, even if they are not citizens. In line with these

territorial models, we believe that denizens have a claim to political inclusion

as denizens.

While standard principles of political inclusion tell us who should be

included in the democratic process, they do not obviously require equal

inclusion. Both principles allow for a range of different interpretations, some of

which permit, or even require, differentiated political rights. They could, for

instance, be interpreted as requiring political inclusion to the degree to which

individuals are affected by or subject to political decisions (Brighouse and

Fleurbaey 2010; Goodin and Arrhenius 2024). The democratic equality thesis,

therefore, requires further justification.

A natural strategy for evaluating the democratic equality thesis is to ask

whether it reflects the underlying value of democracy (Lippert-Rasmussen and

Bengtson 2021: 1028-1030). In the republican tradition, the value of

democracy is typically considered to lie in upholding the (maximum) equal

freedom of all who are subject to the state’s rule. In line with recent republican

thought, we assume that non-domination as well as social relationships of

mutual recognition are necessary conditions for individual freedom (Schuppert

2014). The ideal of equal freedom, in turn, motivates prominent principles of

democratic inclusion, including Walzer’s Principle of Political Justice, according

chapter 3

to which ‘the processes of self-determination through which a democratic

state shapes its internal life, must be open, and equally open, to all those men

and women who live within its territory, work in the local economy, and are

subject to local law’ (Walzer 1983: 60; see also Brighouse and Fleurbaey 2010;

Beckman and Rosenberg 2018). However, substantive egalitarian

commitments, like the commitment to equal freedom, may find expression in a

wide range of institutional arrangements (Beitz 1989: 17; Pevnick 2011: 182).

Like many democratic theorists, we accept that there are good reasons to

uphold the democratic equality thesis for citizens, at least as a default

assumption. The equal freedom of citizens may require that they have an equal

say in the imposition of the far-reaching legal, social, and (arguably) moral

duties and expectations associated with citizenship (Wilson 2019: 18-

26).However, this line of reasoning does not support the equal inclusion of

denizens. Denizens do not have the same duties as citizens towards their host

state. Accordingly, our discussion complements rather than contradicts the

literature on democratic equality for citizens.

What does it mean to say that citizens should have an ‘equal democratic

say’? Traditionally, an equal democratic say means ‘one person one vote’ or,

more broadly, equality in formal democratic decision-making procedures. As

this procedural understanding of democratic equality does not account for

inequalities suffered by structurally disadvantaged groups, many democratic

theorists use the notion of an ‘equal democratic say’ to refer to equality in the

broader democratic process (Ganghof 2021: 54). On this processual

understanding, equality in formal procedures is not sufficient and may not

even be necessary (cf. Beitz 1989; Christiano 2008; Wilson 2019). Appropriate

deviations from procedural equality could involve reserved seats in parliament,

weighted voting power or voting rights in local but not in national elections. As

we cannot attempt to adjudicate this debate here, we use the notion of an

‘equal democratic say’ ecumenically to refer to whatever the sense is in which

citizens should normally be democratically equal.

We argue that the equal freedom of some denizens can be secured

without an equal democratic say in the host state. Our argument resembles a

Denizenship and Democratic Equality

familiar justification for deviations from democratic equality among citizens.

Most democracies concentrate political power in the hands of legislators,

judges, and other officials, who seemingly have a greater say in collective

decisionmaking than ordinary citizens. A prominent justification for such

procedural and processual inequalities is that they promote substantive

equality. Arguably, we need certain privileged social positions to realise equal

freedom. Systems of judicial review, for instance, are inherently unequal but

protect minorities from tyrannical majorities (Rawls 1971: sec. 37).

Denizenship can be understood as a distinct social position, similar to

office-holding in representative democracies. Generally, denizens are citizens

somewhere else and maintain relationships with their home country.

Recognizing them as members, their home country provides them with status,

rights, and protections, including diplomatic protection and the right to return.

Beyond those core rights and protections, the majority of democracies also

provide expatriate voting rights (Bauböck 2009: 478, 487). The position of

denizenship is therefore (normally) characterised by external citizenship.

Denizens also normally have fewer duties towards the host country than

citizenship. For example, denizens are generally not liable to jury duty or

compulsory military service. The position of denizenship, thus, comes with a

distinct set of legal entitlements. In virtue of their social position as citizens of

another polity, denizens do not necessarily require an equal democratic say in

their country of residence to enjoy equal freedom. They may require extensive

social and economic rights, eventually even a right to stay, but not necessarily

full political inclusion or a path to citizenship.

Walzer notably alluded to a similar idea when introducing his Principle of

Political Justice. He pointed out that ‘host countries might undertake to

negotiate formal treaties with the home countries, setting out in authoritative

form a list of “guest rights”, [so that] the original citizenship of guests would

work for them (as it never worked for Athenian metics)’ (Walzer 1983: 60,

emph. added). We take this suggestion up in the following sections and

evaluate denizens’ claim to political inclusion ‘in a normative framework that

involves both countries of residence and origin’ (Bauböck 2009: 477).

chapter 3

Our goal is to show that the territorial admission of migrants need not

always escalate to their full political inclusion or naturalization. Accordingly, we

first discuss the case of denizens who experience particularly favourable

conditions, that is, citizens of well-ordered democracies with responsive

institutions and significant international influence, who currently reside in

well-ordered societies with healthy political ties to their home state, and are

not forced to move by economic deprivation. We argue that their external

citizenship can effectively protect these denizens from domination and ensure

their social basis of self-respect. In the final section, we consider the

implications of our arguments for denizens who experience less favourable

conditions.

3.3 freedom from domination

Denizens are vulnerable to domination by their host state, and republicans

generally consider this vulnerability detrimental to their equal freedom.

Domination is often understood as continuous subjection to another’s

arbitrary power of interference. The subjection is continuous if it arises within

social relationships of dependency and the power is arbitrary if it depends

solely on the will of another. A standard assumption in republican democratic

theory is that citizens need an equal democratic say to ensure their equal

freedom from domination. A democratic say reduces the arbitrariness of the

power by the state, thereby reducing the domination of citizens by their state.

Moreover, it incentivises the state to put reliable safeguards in place against

domination by fellow residents, such as protections against economic

exploitation (Pettit 2012: 24-25). While the state poses a threat of domination,

it can also protect individuals from being trapped in dominating relationships

by protecting individual rights, maintaining public order, or maintaining social

security nets. But this argument for the democratic equality of citizens does

not apply equally to denizens, as some denizens are protected from

domination by their external citizenship. Their external citizenship not only

renders some denizens less dependent than citizens on the relationship with

Denizenship and Democratic Equality

their host state, but also reduces the arbitrariness of the power exercised by

the host state. Accordingly, the partial political inclusion of denizens can be

sufficient to ensure their equal freedom from domination in their host society.

3.3.1 Dependency

According to Philip Pettit’s famous eyeball test, a relationship is dominating if

one party cannot look the other in the eye without reason for fear or

deference (2012: 84). When the dominated party cannot leave such a social

relationship out of their own accord, they are dependent on the social

relationship. As Frank Lovett (2010) has forcefully argued, dependency

amplifies domination wherever it exists. Dependency is a matter of degree and

the level of dependency ‘should be thought of as a sliding scale, varying

according to the net expected costs (i.e., expected costs less any expected

gains) of exiting, or attempting to exit, a social relationship’ (Lovett 2010: 39).

When a person has high exit costs and is, accordingly, highly dependent, they

are more vulnerable to domination. For this reason, ‘citizens of a country they

are prevented from emigrating are more vulnerable to abuses of state power

or imperium than citizens of a society with no restrictions on exit’ (Benton

2014: 53).

Denizens’ external citizenship renders them less dependent than citizens on

the relationship with their host state by providing a right to re-enter the home

state. This right to re-enter the home state in combination with the (human)

right to exit the host state gives most denizens a guaranteed exit option.

Citizens, by contrast, have no such guaranteed exit options (provided they do

not also hold citizenship elsewhere).

The extent to which denizens can make use of this exit option, and thus the

degree to which this option reduces their dependency on the relationship with

the host country, depends on multiple factors, including the political

circumstances in the home country. Whereas returning to the country of

citizenship would be an unreasonable option for denizens who fear

persecution or civil unrest, it is a secure fall-back option for denizens from

chapter 3

stable democracies. Moreover, the net exist costs will likely be higher for long-

term than for short-term denizens due to the social networks, employment

opportunities and special connections that they have built in their host country

and have potentially lost in their home country. The time of residence and the

home country’s political climate must, therefore, be taken into account when

assessing the dependency of a denizen on the host country. However, even

after a considerable time of stay, denizens with an adequate exit option (they

can safely return to their home country and build a new life there) remain less

dependent on the host country than citizens.

3.3.2 Arbitrariness

The host state poses a threat of domination insofar as it can wield its power

arbitrarily. The precise path by which a democratic say reduces domination

depends on how the notion of ‘arbitrariness’ is spelled out. Three explications

of arbitrariness are distinguished in the literature: power can be considered

arbitrary insofar it is unconstrained, uncontrolled, or not forced to track the

interests of those subject to it (Arnold and Harris 2017).

On the first view, power is arbitrary ‘to the extent that its potential exercise

is not externally constrained by effective rules, procedures, or goals that are

common knowledge to all persons or groups concerned’ (Lovett 2010: 96).

These procedures include democratic elections, but also other effective

constraints on power, such as the rule of law and systems of checks and

balances.On this view, any effective constraint reduces arbitrariness, regardless

of who controls the constraint or the substantive direction in which the

constraint forces the power to flow (Arnold and Harris 2017: 58).

By contrast, on a control view of arbitrariness (Pettit 2012), it matters who

exercises the constraint. The arbitrariness of political power is only reduced if it

is effectively controlled by those subjected to it. Political rights then reduce

domination because they provide individuals with an unconditioned and

efficacious control over political power.

Denizenship and Democratic Equality

On an interest view of arbitrariness, the way in which power is exercised

must track the interests of those over whom that power is exercised (Pettit

1997). Political rights, then, do not automatically reduce domination by making

power more controlled. Rather, political rights reduce domination by forcing

the power to flow in a specific substantive direction, as they enable political

rights-holders to articulate their interests and to push for policies that align

with those interests.

On all three accounts of arbitrariness, the rights and protections connected

with external citizenship can reduce the arbitrariness of political power

exercised by the host state over denizens. External citizenship puts constraints

on arbitrary political power, primarily through (informal) diplomatic protection.

States can intervene on behalf of their citizens living abroad, for instance, to

protect them from discriminatory taxation, expropriation, or criminal

punishments. They can do so by repatriating their citizens or by threatening

retaliation. For example, EU nationals were repatriated when the Taliban

returned to power. And in the famous case of Michael Fay, the U.S. intervened

to protect a citizen from corporal punishment in Singapore and succeeded in

reducing this sentence. In practice, the threat of retaliation may often be

enough to protect denizens against discriminatory or inhumane treatment.25

Besides profiting from diplomatic protection, denizens can also profit from

their home country’s lobbying power. Many countries invest in the promotion

of trade and culture abroad, through the funding of lobby agencies,

entrepreneurs, and cultural institutions. These investments can reduce the

arbitrariness of the host state’s political power by ensuring that denizens’

interests are tracked. Powerful or rich countries in particular can pull many

levers to provide economic and political support to their citizens abroad. And

home states will be incentivised to pull these as long as expats maintain

political clout, especially if they retain voting rights at home.26

Finally, external citizenship can also lend denizens control over the laws by

which they are governed. While their external citizenship does not provide

voice-based empowerment in the host country, it does give them exit-based

empowerment (Warren 2011). Denizens can exercise ‘control by their feet’

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over the laws by which they are governed. If the host state desires their

presence, as is the case with many high-skilled workers, they can also leverage

their exit-option into informal political power. In virtue of their external

citizenship, denizens are therefore not just less dependent on their host state

than citizens but are also less vulnerable to arbitrary exercises of power by the

host state than citizens. Accordingly, they do not need an equal democratic say

to ensure their equal freedom from domination.

cessed February 13th 2023).

25A threat of retaliation will be more effective if the country has a strong international

presence, and only works as long as bilateral relations are good and the host country has a

desire to keep good bilateral relations. When war breaks out, the home country can do little to

provide diplomatic protection to their citizens in the host country. The risk of international

relations deteriorating must be priced in, and the political inclusion of denizens may have to be

reconsidered when relations cool down. At the same time, this risk can also be mitigated if

countries cooperate in international institutions, such as NATO.

26Generally, home states will not be able to lobby for the specific interests of individual

denizens,butcanstillexertinfluencetopushhoststatestotracktheinterestsbroadlysharedby their

expatriates. For example, the Turkish government has actively lobbied for the (perceived)

interests of Turkish citizens in Germany, who play a significant role in Turkish national

elections, see Aydın (2014).

3.4 recognition and the social basis of self-respect

Rawls famously considered self-respect to be a precondition of equal freedom,

and therefore described self-respect as the most important primary good. He

argued that democratic institutions provide the ‘foundation of self-respect in a

well-ordered society’ (Rawls 1971: 388), and many democratic theorists

believe that citizens are provided with a secure social basis of self-respect

through their equal democratic say. Any deviations from democratic equality

are seen to express disrespect for disenfranchised groups and to undermine

the positive public recognition of citizens’ equal moral status. We argue that

denizens can enjoy a secure social basis of self-respect without an equal

democratic say in the host country if they receive appropriate recognition in

virtue of their external citizenship. We first argue that the (partial) political

Denizenship and Democratic Equality

exclusion of denizens need not express disrespect for their moral status, and

then argue that denizens can also be positively recognised as moral equals

without receiving an equal democratic say.

3.4.1 Rights-Differentiation without Disrespect

Following Rawls, host states undermine denizens’ social basis of self-respect by

expressing disrespect for one of their two moral powers: their capacity to form

a conception of the good and their sense of justice. Once we take the distinct

social position of denizens into account, we can see that the (partial) political

exclusion of denizens need not express either form of disrespect.

Host states disrespect denizens’ first moral power if they deny the

rationality of their conception of the good (Krishnamurthy 2013: 185). Do host

states deny the rationality of denizens’ conception of the good by offering

them territorial admission without full political inclusion? We are here

considering cases in which host states make genuine (albeit conditional)

admission offers, and thereby strictly provide prospective denizens with

additional options.Genuine offers are generally not disrespectful, as they

empower their recipients to accept or reject them in accordance with their

own conception of the good and do not convey any evaluation of that

conception.

We are here considering admission-offers that enable denizens to live ‘a

life effectively split between two polities’ with ‘a dislocation of social and

political spaces, and consequently of the social bases of self-respect’ (Ottonelli

and Torresi 2022: 43). However, such offers potentially enable denizens to

pursue conceptions of the good that may not be stable or coherent (Straehle

2022). The idea that a good life is incompatible with a ‘divided self’ resonates

with the classic republican emphasis on civic virtue and the underlying

perfectionist Aristotelian conception of human beings as having a political

nature. Accordingly, some republicans may worry that states make

disrespectful offers by giving denizens the option of pursuing an objectively

irrational conception of the good. However, like many contemporary

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republicans, we believe that the state should remain neutral with respect to

comprehensive doctrines of the good. By making genuine offers of territorial

admission without full political inclusion, the state leaves the decision of

whether accepting such offers is rational to migrants themselves, and thereby

remains neutral.

Even if genuine offers are generally not disrespectful, one could object that

the conditional nature of the specific offers under consideration disrespects

some migrants’ first moral power, as states fail to accommodate the life plans

that follow from certain conceptions of the good. This objection utilises the

principle of accommodation – recently defended by Valeria Ottonelli and

Tiziana Torresi (2022: 94-105) – according to which states only remain neutral

between different conceptions of the good if they effectively allow for the

realisation of these conceptions.

Clearly, host states fail to accommodate the life plans of potential migrants

wishing to lead an ‘undivided life’ on the host states’s territory if they offer

admission only on the condition of partial political inclusion. Such offers do not

violate the principle of accommodation though, as that principle is inward-

facing; it only applies to individuals who have already become subject to the

host states’ rule by accepting its admission offer (Ottonelli and Torresi 2022:

97). States are only required to remain neutral towards conceptions of the

good pursued by their subjects, and can permissibly admit migrants on the

condition that they declare their life plans to be compatible with dislocated

social spaces. Over time, some denizens may certainly come to regret settling

in a place where they cannot lead an ‘undivided life’. Whether states are

required to accommodate the revised life plans of these denizens depends on

how we prioritise two central aspects of moral agency: the capacity to revise

one’s conception of the good and the capacity to make decisions for our future

selves. We believe that the latter should take precedence, as states would treat

denizens paternalistically when denying them the capacity to make decisions

for their future selves just because they may later come to regret those

decisions. By holding them to earlier agreements, states take denizens

Denizenship and Democratic Equality

seriously as moral agents with command over their own lives and, thereby,

respect their moral powers.

Host states disrespect denizens’ second moral power – their sense of justice

– if they force them to endure injustice or deny them opportunities to

cooperate on fair terms with other members of society (Rawls 1971: sec. 72).

One argument holds that the social positions of citizenship and denizenship

are distributed unjustly. As Joseph Carens put it, restrictions on access to

citizenship create unjust inherited status differences resembling ‘feudal class

privilege’ (Carens 2013: 226). The most prominent version of this argument

builds on a cosmopolitan reading of the Rawlsian principle of fair equality of

opportunity (Rawls 1971: sec. 14). This argument is controversial in several

respects: First, it is debatable whether Rawls’ reasons for endorsing equality of

opportunity among citizens apply to the acquisition of citizenship itself (Miller

2007: 53). It is also questionable whether these reasons outweigh competing

considerations based, for instance, on collective self-determination (Miller

2007: 68), or the incentive structure of the global political system (Rawls 1999:

38-39). Finally, it is unclear whether a globalised fair equality of opportunity

principle requires abandoning restrictions on citizenship-acquisition. As Darrel

Moellendorf has pointed out, what matters is whether people have access to

social positions that are equal with respect to normatively salient features like

status or power, not whether people can access the same positions

(Moellendorf 2006: 307). It is therefore questionable whether restrictions on

citizenship-acquisition violate equality of opportunity in the case of denizens

who already hold citizenship in sufficiently just and democratic states.

A second argument holds that the social position of denizenship is unjust

because the current state system with its distinct citizenship regimes is

fundamentally unjust to begin with. Clearly, this is a controversial idea that will

neither appeal to proponents of internationalist or demoicratic visions of

global justice – including Rawls (1999) – nor to those cosmopolitans who think

that states still have a role to play in securing global justice.

A third argument holds that denizens are denied opportunities to

cooperate fairly with the citizens of the host state. One version of this

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argument holds that partial inclusion schemes are unfair towards denizens, as

denizens contribute to their host society and should receive equal rights in

return (Lenard 2015: 127). A contrasting version holds that partial inclusion

schemes are unfair towards citizens, as denizens ‘free ride’ on the cooperative

life established by citizens by remaining in a privileged guest position without

sharing the full burdens of citizenship (De Schutter and Ypi 2015). Both

arguments highlight differences in the rights and duties of citizens and

denizens, but neither argument establishes that a denizens’ less extensive

rights are unfair in relation to their more restricted duties. Moreover, both

arguments focus exclusively on host states as sites of social co-operation and

do not consider other co-operative schemes, like those set up through

international agreements on temporary labour migration, from which denizens

may profit and to which they contribute by accepting the rights and duties

associated with their guest status. Finally, neither argument shows that

denizens would be forced to endure an unjust social position, as long as they

are free to exit and give up their denizenship.

3.4.2 Expressions of Recognition

According to a second prominent line of reasoning, democracy positively

contributes to the social basis of self-respect through the public recognition of

individuals’ equal moral status. Specifically, democratic institutions provide

individuals with equal avenues for exercising political agency that are legally

recognised, thereby enabling them to experience political decisions as a form

of self-rule (Schuppert 2014: 121-126). We argue that some denizens can

experience this positive recognition without an equal democratic say in the

host state.

In contrast to Athenian metics, denizens today can routinely exercise

political agency in three domains: As citizens, they can participate in the

democratic processof theirhome state,tothe extentthat they retaina

democraticsaywhile abroad. As denizens, they can participate in the

democratic process of their host state, to the extent that they receive a

Denizenship and Democratic Equality

democratic say there, for instance through local voting rights. And as external

citizens, they can exercise agency by taking up denizenship or returning to their

country of citizenship. These opportunities for agency are not the same as

those enjoyed by citizens, but they can be equally suitable for sustaining the

social basis of self-respect. While denizens have less extensive opportunities

for exercising political agency in the host state, they have compensatory

opportunities to exercise agency in virtue of their external citizenship.

Having agency is not sufficient to secure the social basis of self-respect.

After all, even Athenian metics could exercise agency through political

resistance. Individuals must also experience the legal recognition of their rights

to exercise political agency, which confirms their status as moral equals who

can demand, rather than only request, to be taken seriously as sources of

moral reasons (Honneth 1996: 120; Rostbøll 2023: 98-110). Denizens enjoy

such legal recognition in all three domains of their political agency. Naturally,

home states legally recognise any political rights that denizens retain while

abroad. Host states also legally recognise any rights they grant denizens to

participate in their own democratic process. Moreover, all democracies

recognise denizens’ rights to exit their country of residence and enter their

country of citizenship. Home and host states can therefore jointly provide

denizens with effective legally recognised avenues for exercising their political

agency, just as they can jointly effectively protect them from domination.

One may question whether recognition can be distributed between

different sources in the same way as protections against domination.

Recognition manifests in specific relationships, and the relationship that

matters most in denizens’ daily life is that between denizens and the host state

(and indirectly its citizens). So, one may worry that a lack of recognition

experienced in this relationship cannot be compensated by recognition

experienced elsewhere. This worry seems to underlie Ottonelli and Torresi’s

(2022: 56-58) assertion that only denizens who pursue temporary migration

projects may be excluded from full political participation. However, it overlooks

that host states can recognise denizens as citizens of another self-governing

polity. Democracies generally recognise the rights of citizens of other

chapter 3

democracies to jointly govern themselves, as is codified in international law,

for instance in the principle of self-determination, and confirmed in numerous

international agreements.

Through the medium of international law, host states thereby recognise

denizens’ political agency in their home state. Denizens, in turn, can recognise

the same rights on behalf of the host state and its citizens, by recognising the

authority of the democratic process in the host state. In this way, denizens can

engage in valuable relationships of mutual recognition with their host state

and, by extension, its citizens.

Recognition mediated by international law differs from the recognition of

rights to exercise political agency in domestic law, as it generally does not take

the form of subjective rights but of the foreign citizenry’s collective rights to

self-government. The recognition of collective rights can still express

recognition for individuals’ moral agency though, if it hinges on the existence

of subjective rights to political participation in the home state – as is the case

with recognition mediated by international organisations that sanction

democratic backsliding in their member states, like the European Union or the

Commonwealth. Host states and home states can further strengthen the

recognition of denizens’ moral agency through explicit agreements that govern

the status of denizens and codify their rights and duties. Through such

agreements, host states can directly recognise denizens’ subjective rights to

political participation in their home state and underwrite their commitment to

the moral equality of denizens. This commitment is expressed through a legally

recognised and secured guest status, rather than through full inclusion in the

domestic democratic process.

In a similar vein, Rainer Bauböck and Martin Ruhs (2022: 15) suggest that

binding international agreements can secure the equal status of denizens.

However, they insist that such agreements must be reached through

transnational democratic decision-making procedures, in which denizens can

make their voices heard directly, rather than through intergovernmental

negotiations. But why would the direct representation of denizens in

transnational decision-making procedures constitute a general democratic

Denizenship and Democratic Equality

requirement?Consider the situation of German and Icelandic denizens in the

Netherlands. Both groups occupy a legally recognised guest status, which

comes, inter alia, with local voting rights in the host state, democratic

participation rights in the home state that are enshrined in binding

agreements, exit-rights and reentry-rights, and protections against

deportation. These rights are secured for German denizens (in part) through

supranational agreements at the European level, where German citizens have

direct representation in the European parliament. By contrast, these rights are

secured for Icelandic citizens through

intergovernmentalagreements,includingthe SchengenAgreement, the

European Convention on Human Rights, and the Convention on the

Participation of Foreigners in Public Life at the Local Level. If German denizens

are recognised as political equals in the Netherlands, then Icelandic denizens

seem to enjoy the same status. International agreements can thus provide a

source of genuine recognition of individual denizens, even if they are reached

through intergovernmental negotiations.

In sum, the (partial) political inclusion of denizens in the host state’s

democratic process can be compatible with their recognition as moral equals,

and thus with their social basis of self-respect. In the next Section, we consider

the variations within the group of denizens as to the kind of political inclusion

that is required for enjoying equal freedom.

3.5 the political potential of partial political inclusion

We have questioned the deep commitment in political philosophy to

‘citizenmaking’ and to conjoining territorial admission and full political

inclusion. We have argued that upholding the equal freedom of denizens does

not necessarily require their political inclusion on equal terms with citizens.

States are permitted to implement partial inclusion schemes for denizens

under favourable external citizenship conditions. Denizens enjoy such

favourable conditions when their home state is democratic and has responsive

institutions, they have social and political ties to their home state, their home

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state has a strong international presence, and their home and host states have

good bilateral relations. Under those conditions, denizens’ external citizenship

can systemically contribute to their protection from domination and their

social basis of self-respect, and thereby address two of the major threats to

their equal freedom.

Of course, the situation of many denizens deviates markedly from this

ideal. Many denizens are forced to leave their country of origin as refugees, are

deprived of their original citizenship, or cannot effectively exercise political

rights in authoritarian systems. Those denizens are dependent on their host

country and need political voice to avoid domination. Moreover, they cannot

be recognised as moral equals in their role as citizens of another self-governing

democratic polity. Denying such denizens equal political rights relegates them

to a second-class status.

The theoretically challenging cases lie between these two extremes. They

concern denizens from countries with questionable democratic credentials or

little influence on the world stage. In today’s world, many temporary labour

migrants fall in this category. On the one hand, they often come from

semidemocratic states with international economic dependencies. On the

other hand, host and home states generally profit from temporary labour

migration and are therefore incentivised to uphold agreements that codify

their rights and therefore contribute to their equal status. The denizens in

these semifavourable conditions can be placed on a spectrum according to the

degree to which their external citizenship protects them from domination and

contributes to their recognitional basis of self-respect. They require different

degrees of political inclusion to secure their equal freedom depending on

where they fall on this spectrum. This conclusion does not justify complacency,

as existing partial political inclusion schemes rarely provide adequate inclusion

for these denizens.

In practice, states are often unable to inquire into the situation of

individual denizens, and would therefore have to rely on broad categories in

the implementation of partial inclusion schemes. To define those categories,

states could employ a range of criteria, including the home state’s democracy

Denizenship and Democratic Equality

index, the quality of its relationship to the host state, the kind of migration

projects denizens are pursuing, or the (intended) duration of their stay in the

host state. For each of these categories, host states have to determine the

appropriate forms of political inclusion. For example, they could choose to give

a particular category of denizens weighted voting power in national elections,

voting rights in local elections only, or political weight through non-

governmental organizations, trade unions and migrant worker organizations

(cf. Ottonelli and Torresi 2022: Ch. 7).

The imposition of categories on a more complex underlying normative

reality poses the risk that some denizens may not be adequately included.We

think that proposals for partial political inclusion are worth considering despite

this risk, because they potentially enable states to open their borders. As the

‘numbers-versus-rights’ trade-off highlights, citizens may be willing to

acceptmoremigrantswhentheyhavetogivethemfewerrights.Itisreasonable for

citizens to let the number of migrants depend on the rights that migrants will

get, especially when it comes to political rights, as citizens give up a share of

political control over their countries’ future – including its future immigration

policies – by including newcomers in the democratic process. Therefore, the

partial political inclusion model potentially renders increased immigration

more acceptable for citizens, and thereby also more politically feasible.

Increased immigration, in turn, enables migrants from economically worse-off

states to seek employment abroad, acquire skills, and send back remittances.

When states and their citizens want to pursue global justice goals even

further without sacrificing their claim to collective self-determination, the

partial political inclusion model encourages them to seek international

cooperation. As Walzer already suggested, increased international co-

operation can provide a democratically legitimate substitute for the political

inclusion of denizens. States can work together by entering international

agreements concerning the status and rights of denizens, by setting up

multilateral institutions that empower less influential home states, or by

transferring competencies to transnational democratic fora that provide

denizens with additional voice. To some extent, such co-operation can provide

chapter 3

denizens with protections from domination and sources of recognition.

International co-operation thereby enables states to open their borders

without compromising their democratic legitimacy or their citizens’ claim to

collective self-determination.

II The Boundaries of Electoral Constituencies

4Heterogeneous Constituencies and Legislative

Gridlock

Summary Geographically-defined electoral constituencies are used in many

democracies to elect a set number of representatives to the national

legislature. In the absence of a viable alternative, democratic theorists have

largely refrained from questioning the geographic definition of electoral

constituencies. Yet, new technologies offer the opportunity to create

heterogeneous electoral constituencies, which are not restricted to territory

and are as diverse around social identities as the entire electorate. In this

chapter, I advocate for replacing single-seat geographic constituencies by

multi-seat heterogeneous constituencies. The aim of my comparative defence

of heterogeneous constituencies is two-fold. First, my defence is intended to

shed light on the democratic limitations of our contemporary geographically-

based electoral systems. In contrast to heterogeneous constituencies,

geographic constituencies violate democratic equality. They dilute the voting

power of geographicallydispersed groups. Second, my defence is a call for

electoral reform in response to the democratic problem of legislative gridlock,

which threatens the collective decision-making capacity in democracies around

the world. I show that geographic constituencies crystallise cleavages that

reinforce geographic divisions, whereas heterogeneous constituencies enable

the politicisation of multiple cross-cutting cleavages. Reinforcing cleavages

heighten political conflict whereas cross-cutting divisions moderate political

conflict and, thereby, facilitate processes of bargaining and coalition-building.

Heterogeneous electoral constituencies should therefore be considered as part

of an institutional response to the democratic problem of legislative gridlock.

4.1 introduction

chapter 4

Legislative gridlock poses a significant threat to contemporary democracies. In

the U.S., the political parties’ reluctance to make compromises has frequently

hindered the passing of crucial legislation. Similarly, in Belgium, the deep

division between the Flemish and French-speaking communities has led to

extended periods without an elected government. Such legislative standstills

undermine the normative legitimacy of democratic systems, as they impede

the democratic capacity of the people to rule themselves. Procedurally, they

encourage the transfer of political power to other branches of government

that are not directly authorised and held to account by the people.

Substantively, they may generate undemocratic political outcomes, as

legislative inaction may lead to the perpetuation of a status quo that is neither

favoured by a majority nor supported by the protection of minority rights. As a

consequence, detrimental “drifts”, such as increasing climate change risks and

growing wealth inequalities, may be allowed to continue (Gutmann and

Thompson 2012: 30-35; Warren and Mansbridge 2013: 87, 89).

In this chapter, I explore the effects of electoral constituency design on the

threat of legislative gridlock. In many democracies around the world, electoral

constituencies are defined in expressly geographic terms, meaning that the

electoral rolls consist exclusively of voters who reside in the same geographical

area. In the absence of a viable alternative, the geographic nature of electoral

constituencies has remained largely unquestioned (Urbinati and Warren 2008:

396-397). However, technological advancements enable us now to replace

geographic electoral constituencies with heterogeneous electoral

constituencies, which are as diverse as the entire electorate. In these

heterogeneous constituencies, all salient social identities are present in the

same proportion as in the entire electorate. These constituencies can be

formed by randomly assigning voters to a constituency when they become

eligible to vote. Designed as such, the underlying groupings of voters are

geographicallydispersed and created purely for political purposes (Rehfeld

2005; Ciepley 2013). The question arises: Can heterogeneous constituencies

provide an institutional remedy to the growing threat of legislative gridlock? I

show that multi-seat heterogeneous constituencies can provide an institutional

Heterogeneous Constituencies and Legislative Gridlock

remedy and therefore propose replacing single-seat geographic constituencies

by multi-seat heterogeneous constituencies.

My comparative defence of multi-seat heterogeneous constituencies

proceeds in two steps. In the first step, I argue that geographic constituencies,

in contrast to heterogeneous constituencies, violate democratic equality. In

particular,Iarguethatgeographicconstituenciesdilutethevotingpowerofmembers

of geographically-dispersed groups, whereas heterogeneous constituencies do

not perpetuate this unfair bias against voters on the basis of the geographic

settlement patterns of the groups with which they identify. This dilution of

voting power translates into vote-seat asymmetry: Geographically-

concentrated groups can obtain a larger number of seats with a given share of

the vote than geographically-dispersed groups. I distinguish vote-seat

asymmetry from vote-seat disproportionality, where groups do not obtain the

number of seats that corresponds to their obtained share of the vote, and

propose combining heterogeneous constituencies with multiple seats in order

to also prevent unjustifiable vote-seat disproportionality.

The bias created by geographic constituencies against voters from

geographically-dispersed groups is not only inherently problematic. It is also

instrumentally problematic because of its effects on legislative gridlock. The

second step of my comparative defence is to show that electoral constituency

design can exacerbate or reduce the threat of legislative gridlock by affecting

what type of cleavages – reinforcing or cross-cutting – are politicised.

On the one hand, I show that geographic constituencies incentivise political

actors to politicise identities that reinforce geographic divisions by prioritising

geographically-concentrated groups. When reinforcing cleavages are

politicised, political parties become deeply divided into two camps with little to

no overlap. This is known to increase the chances that any potential

compromise is perceived as ‘selling out one’s principles’ and thus to diminish

the willingness to make compromises (see e.g., Davis 2019: 407; Mason 2015;

McCoy and Somer 2019: 257-267). The incentives to focus solely on politicising

reinforcing cleavages are amplified when geographic constituencies are

combined with a single seat. Single-seat geographic constituencies can

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therefore be considered a contributing factor to the democratic problem of

legislative gridlock.

On the other hand, I show that, as an unbiased electoral constituency

design, heterogeneous constituencies facilitate the politicisation of all salient

cleavages that exist in society, including cross-cutting ones. When cross-cutting

cleavages arepoliticised,politicalidentitiesexhibitsomedegreeofoverlap.This

moderates political conflict and, thereby, foster an environment conducive to

political compromises (see e.g., Dahl 1966; Goodin 1975; Rae and Taylor 1970).

The politicisation of cross-cutting cleavages can be further stimulated by

combining heterogeneous constituencies with multiple seats. Multi-seat

heterogeneous constituencies therefore offer a potential institutional remedy

to legislative gridlock.

The chapter is structured as follows: In Section 4.2, I identify the democratic

virtues of a system with multiple electoral constituencies. This is intended to

justify a presumption in favour of a multi-constituency system (whether

composed of geographic or heterogeneous constituencies). In Section 4.3, I

show that replacing single-seat geographic with multi-seat heterogeneous

constituencies can enhance democratic equality and argue that this is

desirable. In Section 4.4, I show that, as a consequence of their distinct

capacity to achieve democratic equality, geographic constituencies increase

the threat of legislative gridlock, whereas heterogeneous constituencies

decrease this threat. I conclude with a summary of the argument.

4.2 the democratic virtues of electoral constituencies

Electoralconstituencieswitharelativelylowconstituencymagnitudeyieldseveral

democratic benefits. While these benefits are traditionally attributed to

geographic constituencies, I show in this Section that heterogeneous

constituenciesalsohavethem.Thisunderscoresthedesirabilityofamulti-

constituency electoral system – whether consisting of geographic or

heterogeneous constituencies – over a single electorate-wide constituency that

encompasses the entire electorate. Since voters already enjoy these benefits,

turning geographic into heterogeneous constituencies may also be more

feasible than abandoning a multi-constituency system.

Heterogeneous Constituencies and Legislative Gridlock

First, electoral constituencies create a direct relationship of authorisation

and accountability between voters and their representatives, as a designated

number of representatives is elected within each constituency. Sustaining this

connection requires stability in constituency membership, so that

representatives are held accountable during re-election by largely the same

group of individuals who initially elected them. Heterogeneous constituencies

can provide unparalleled stability, as membership can be made permanent

such that changes only occur upon the passing away of constituents or the

addition of new members to the electorate. Geographic constituencies do not

ensure the same degree of stability, as voters may change constituency

membership due to relocation or redrawn constituency boundaries throughout

their lives (Ciepley 2013: 144; Rehfeld 2005: 40-41).

Second, electoral constituencies enable practices of constituency service.

Legislators have the ability to aid their constituents in navigating specific

administrative procedures and act as intermediaries between constituents and

government agencies. This facilitates opportunities for citizens to challenge

administrative processes and decisions, thereby enhancing citizen engagement

and oversight within governmental operations. Legislators will only be

motivated to spend time and energy providing such services to individuals that

belong to their constituency and can thus electorally reward them. To sustain

the provision of constituency service, legislators must therefore be able to

clearly identify which individuals belong to their constituency (Carlsen Häggrot

2023a: 309; Wilson 2019: 199). In geographic constituencies, constituents are

identifiable by their area of residence. In heterogeneous constituencies,

constituents can be made clearly identifiable to legislators by their

constituency number. To facilitate constituency service, there must thus be a

publicly accessible constituency number book, similar to the address book.

Third, electoral constituencies sustain deliberation among constituents.

Geographic constituencies create ample opportunities for constituents to

deliberate, as they ensure that voters who live close to each other generally

belong to the same constituency. But to facilitate communication and thus

deliberation among all constituents, geographic constituencies have to be of a

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rather small size. Modern-day geographic constituencies can only enable

deliberation ‘within the many subgroups that will be nested within each

geographic constituency’ (Carlsen Häggrot 2023a: 310). Since the deliberative

benefits of geographic constituencies only derive from these small

“neighbourhoods”, the same benefits arise in heterogeneous constituencies

that are formed through the pooling of such neighbourhoods (Rehfeld 2005:

172). But even in fully random constituencies, communication between

subgroups of constituents can be facilitated through the establishment of

online deliberative platforms and constituency meet-ups. The advantage of

such randomly-constituted subgroups is that they are inherently diverse, which

is widely endorsed as a necessary condition for good deliberations (Rehfeld

2005: 26).

Fourth, electoral constituencies may sustain practices of voter mobilisation.

Geographic constituencies enable legislative candidates to mobilise voters with

relatively easy and inexpensive methods, such as door-to-door campaigns,

local political gatherings and the dissemination of political advertisements

through local media (Carlsen Häggrot 2023a: 308, 314). In heterogeneous

constituencies, political parties are expected to play a more prominent role in

campaigning, as they will continue to utilise national media advertisements,

the internet and social media platforms. Political parties can also organise

cross-country meet-ups where constituents can engage with the party’s

candidates (from their own and other constituencies). This closer alignment

between candidates and their political parties in political campaigns arguably

serves as an advantage, as it makes political parties the primary locus of

accountability and mitigates the tendency of candidates to shift blame onto

their party if their campaign promises go unfulfilled (Ciepley 2013: 145).

Moreover, the greater prominence of political parties is likely to centre political

campaigns around national party platforms. This is arguably also a democratic

virtue of heterogeneous constituencies, as it appropriately transfers the power

to address local issues to provincial and local governments, ensures that local

concerns only inform national decisions when they are directly affected by

such decisions, and prevents that national interests are hindered by the

Heterogeneous Constituencies and Legislative Gridlock

lobbying efforts of individual representatives who advocate solely for their

own constituents (Ciepley 2013: 143-144).

4.3 enhancing democratic equality

Democratic equality is often equated with the slogan “one person, one vote”.

One interpretation of this slogan is that voters must have an equal capacity to

influence legislative outcomes (Abizadeh 2021a: 744-745,748; Beitz 1989: 75-

77; Pogge 2002: 27). In this Section, I will argue that geographic electoral

constituencies, in contrast to heterogeneous constituencies, unjustifiably

dilute some citizens’ votes. I will show that this form of vote dilution manifests

as vote-seat asymmetry, rather than vote-seat disproportionality, between

geographically-dispersed and geographically-concentrated groups. Replacing

geographic constituencies by heterogeneous constituencies can prevent this

form of vote dilution and can thus enhance democratic equality.

4.3.1 Vote-Seat Disproportionality

Geographic constituencies are often criticised for producing vote-seat

disproportionality. They potentially cause groups or political parties to receive

a number of legislative seats that is disproportional to their obtained share of

the vote. This has been considered a ‘major objection’ to the use of geographic

constituencies as it constitutes a form of vote dilution (Guinier 1994: 119-156;

Reeve and Ware 1992: 120; cf. Carlsen Häggrot 2023a: 316).

However, as I will show below, vote-seat disproportionality is only

incidentally but not essentially tied to the geographic definition of electoral

constituencies. A problem is incidentally tied to geographic constituencies

when the geographic-definition facilitates the occurrence of the problem,

whereas it is essentially tied to geographic constituencies when the problem

would not occur without the geographic-definition (cf. Stone 2008: 249). Since

vote-seat disproportionality is incidentally tied to the geographic-definition of

constituencies, it may also occur with heterogeneous constituencies and thus

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does not immediately provide a reason to replace geographic by

heterogeneous constituencies.

A first cause of vote-seat disproportionality is malapportionment. This

occurs when the number of voters per seat in one electoral constituency is

higher than in another. For instance, one U.S. Senator represents 38 million

voters from California, whereas another U.S. Senator represents only 580,000

voters from Wyoming. As there are 56 times more votes cast in California than

in Wyoming, a political party would need a larger share of the vote to win a

seat in California than to win a seat in Wyoming and voters in California are

less likely to influence legislative outcomes (Ciepley 2013: 144). This cause of

vote-seat disproportionality is, however, not essentially tied to the geographic

nature of electoral constituencies. It is only more likely to occur in geographic

than in heterogeneous constituencies. After all, since random constituencies

are drawn without regard to geographic or administrative boundaries, their

boundaries can be easily adjusted to ensure that the number of voters per seat

remains constant across all seats.

A second cause of vote-seat disproportionality is a high number of wasted

votes.Wheneachgeographicconstituencyelectsonlyonerepresentative,many

votes will be wasted on candidates who do not win the seat. As a

consequence, the number of legislative seats a party secures may end up being

disproportional to the share of the vote it received. This cause of vote-seat

disproportionality is not essentially tied to the geographic-definition of

constituencies either. Rather, it arises because of the minimal constituency

magnitude (cf. Carlsen Häggrot 2023a: 317-320). When the number of seats

per constituency is more than one, smaller groups will have a chance to elect a

representative in the legislature and thus less votes will be wasted. The rule of

thumb is that, given a proportional electoral formula, the higher the

constituency magnitude, the smaller the number of votes that a representative

or political party must secure to get a seat in the legislature and thus the

smaller the groups that have a chance of winning a seat in the legislature. A

high constituency magnitude allows for the representation of smaller

minorities.

Heterogeneous Constituencies and Legislative Gridlock

The above discussion indicates that if heterogeneous constituencies were

to replace geographic constituencies, then their sizes must be proportional to

their number of seats and their number of seats must be more than one. Since

heterogeneous constituencies are not bound by geographic boundaries, their

sizes can be adjusted to accommodate different constituency magnitudes. The

arguments in this chapter are based on the assumption that multiple

heterogeneous constituencies are combined with a low (but not minimal)

constituency magnitude. Such a system with multiple electoral constituencies

has certain benefits, as discussed in the previous section. It also does not have

the drawbacks associated with high constituency magnitudes, which facilitate

the fractionalisation of the political landscape, making it more difficult to form

governing coalitions and reach compromises. There is thus a trade-off between

minority representation and governability (Rae 1995). Ultimately, the

democratic benefits of systems with multiple low-magnitude constituencies –

enhancing governability and fostering a more direct interaction between

representatives and voters – should be weighed against their limitations in

terms of minority representation. Heterogeneous electoral constituencies

could be paired with any constituency magnitude that serves as the golden

middle for facilitating both minority representation and governability. In this

chapter, I start from the assumption that this golden middle is achieved with a

low but not minimal constituency magnitude.

4.3.2 Vote-Seat Asymmetry

There is another form of vote dilution that is essentially tied to the

geographicdefinition of electoral constituencies. This form of vote dilution

stems from vote-seat asymmetry. A system creates vote-seat asymmetry when

the number of legislative seats that a group or political party would win with a

given share of the vote is unequal to the number of legislative seats that

another group or political party would win with the same share of the vote

(Beitz 1989: 332-333). The requirement of vote-seat symmetry is weaker than

vote-seat proportionality. For example, vote-seat proportionality is violated

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when all parties with 20% of the votes win none of the seats, but vote-seat

symmetry is not.

Vote-seat asymmetry can be formally described in terms of electoral

thresholds. An electoral system rewards (or punishes) a particular group when

it creates a lower (or higher) national electoral threshold for that group than

for another. This threshold stipulates the minimum share of all votes with

which a group can win at least one seat in the national legislature. It is a

function of the constituency electoral threshold, which stipulates the minimum

share of the vote within a given constituency with which a group can win at

least one seat in that constituency.

An electoral system creates vote-seat asymmetry when it assigns members

of a particular group to only a few constituencies. To see this, suppose that we

can make a simple binary distinction between groups on the basis of their

distribution over constituencies: Dispersed groups are equally distributed over

all constituencies and concentrated groups are only present in one particular

constituency. A simple example shows that concentrated groups always have a

lower national electoral threshold than dispersed groups. Consider a

hypothetical society with 300 voters that are equally divided over 3 electoral

constituencies such that each constituency consists of 100 voters. Suppose

that the constituency electoral threshold is 24% and thus a representative or

party needs to win 24 of the 100 votes within a constituency to get at least one

seat. When a concentrated group has exactly 24% of the votes in the

constituency in which it is concentrated, it will have 30024 = 8% of the votes in

the entire electorate and win a seat in the national legislature. The national

electoral threshold of concentrated groups in this hypothetical society is thus

8%. By contrast, a dispersed group has an (approximately) equal potential to

win a seat in all three constituencies. Its national electoral threshold will

therefore be equivalent to its constituency electoral threshold. That is, if a

dispersed group has 24% of all votes, it will also have 24% of the votes in each

constituency and thus win a seat in every constituency, but if it has only 23% of

all votes, it will also have only 23% of the votes in each constituency and thus it

will not win any seat.

Heterogeneous Constituencies and Legislative Gridlock

Geographic constituencies have the propensity to create vote-seat

asymmetry between geographically-concentrated and geographically-

dispersed groups. In a system with geographic constituencies, the dispersion

over constituencies or concentration in a particular constituency correlates to

the geographical settlement patterns of groups: The groups that are equally

distributed over the constituencies are also geographically-dispersed and the

groupsthatareclusteredinoneparticularconstituencyarealsogeographicallyconce

ntrated. As a consequence, geographic constituencies electorally punish (or

reward) groups on the basis of their geographic settlement patterns. The

above example shows that geographic constituencies may enable legislative

success for geographically-concentrated groups that constitute only 8% of the

population, whereas a geographically-dispersed minority that constitutes a

bigger fraction of the population may not be able to win a legislative seat. This

implies, for example, that the Mormons in the U.S. have better prospects for

electoral success, relative to their share of the vote, than Blacks, Hispanics,

Asians or Catholics (Pogge 2002: 27).

This bias towards geographically-concentrated groups is essentially tied to

ageographicconstituencydesign,asitwouldnotoccurwithoutthegeographicdefini

tion of constituencies. While a higher constituency magnitude can reduce

vote-seat asymmetry by simply making the system more proportional, a low

constituency magnitude is not sufficient for the problem to occur: A

geographic constituency-definition is a necessary condition. Other

constituency designs may also create a bias but not towards geographically-

concentrated groups. For example, class-based constituencies favour groups

that are primarily constituted of voters from a particular socio-economic class.

The same holds for all other group-based constituency designs that divide the

electorate over constituencies on the basis of their membership in a particular

social group. By contrast, heterogeneous constituencies, by their very nature,

avoid a bias towards any group. They guarantee the equal distribution over the

constituencies of all groups and thus prevent the concentration of groups in

certain constituencies. As a consequence, the prospects for electoral success in

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a system with heterogeneous constituencies depend only on group size, not on

geographic settlement patterns.

The normatively important question is now: Does the bias towards

geographically-concentrated groups constitute an unfairness? The requirement

of vote-seat symmetry captures a similar idea as the axiom of anonymity (also

referred to as symmetry) in social choice theory, namely that ‘each individual

[should] be treated the same as far as his influence on the outcome is

concerned’ (May 1952: 681). However, as Charles Beitz (2018: 333-334)

observes, while our appeal to the requirement of vote-seat symmetry may be

explained by its resemblance to the social choice axiom of anonymity, this does

not yet clarify whether there is an unfairness involved in vote-seat asymmetry.

The axiom of anonymity stipulates that the outcome of an election should

remain unchanged if the identities of the voters are swapped. For example, if a

candidate wins when Alex votes for her but Charly does not, then the

candidate should also win if Charly votes for her but Alex does not. It is a

fairness requirement towards individual voters but not towards groups, and for

decision rules within a constituency but not across constituencies. Anonymity

at the level of a constituency is perfectly compatible with vote-seat asymmetry

across the jurisdiction. The question thus remains whether a bias towards

certain groups at the level of the jurisdiction as a whole should be considered

unfair. In other words, why should symmetry in vote and seat shares between

groups across constituencies be taken as the ‘neutral’ baseline and why should

we care about this baseline?

The answer to this question lies in the correspondence between vote-seat

asymmetry and the dilution of voting power. A distinction must be made here

between a priori and a posteriori voting power. The a priori perspective

abstracts away from other voters’ preferences. It assesses the agent’s

decisivenessor chances of success by considering all logically possible profiles

of votes, often under the assumption that all profiles are equally probable. By

contrast, a posteriori voting power measures the agent’s decisiveness or

chances of success on the basis of information about all actually possible

profiles of votes. The a posteriori perspective allows us to analyse an agent’s

Heterogeneous Constituencies and Legislative Gridlock

voting power given her affiliation to a dispersed or concentrated minority (cf.

Abizadeh 2021a:

748-751; Beitz 2018: 338-339).

The slogan ‘one person, one vote’ is often considered to express the idea

that all voters should have equal voting power in the system as a whole

(Wodak 2024: 14-15). But voters who belong to dispersed groups do not have

the same a posteriori voting power as voters who belong to concentrated

groups. Consider the Hypothetical Neutral Society with 300 voters that are

distributed over 3 geographic electoral constituencies – a Northern, Central

and Southern constituency – in which a single representative is elected with

plurality rule. Suppose that the society is considered neutral towards Christian

denominations as it consists of 150 Protestant voters and 150 Catholic voters.

The Protestant voters are geographically-concentrated in the North, meaning

that they are primarily located in the Northern electoral constituency. By

contrast, the Catholic voters are geographically-dispersed and are equally

distributed over the Central and Southern constituencies. Table 4.1 shows the

distribution of voters over the constituencies. The example shows that the

Protestant voters have less a posteriori voting power. Only 15090 = 60% of

Protestant have a chance at electoral success, whereas 140150 = 93% of Catholic

voters have a chance at electoral success. Similarly, 93% of Catholic voters have

a higher chance at being decisive than any of the Protestant voters.Hence, as a

consequence of a geographic-definition of constituencies, voters of two

equally large groups have different a posteriori voting power depending on the

geographic distribution of those groups.

North

Protestants Catholics Total

90 10 100

Central 30 70 100

South 30 70 100

Total 150 150 300

Table 4.1: The Hypothetical Neutral Society

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The example shows that geographic constituencies dilute the voting power

of voters in geographically-dispersed groups. This form of vote dilution

constitutes a violation of democratic equality. This is not because voters are

entitled to being decisive or to having legislative success some of the times.

After all, that would absurdly give a minority an entitlement to sometimes rule

(Kolodny 2014: 321-328; Viehoff 2014: 373-374). Rather, it constitutes a

violation of democratic equality because voters are entitled to having equal

chances at being decisive or equal chances at electoral success as other voters

who are affiliated to groups of equal sizes. They are thus entitled to a

symmetry in the a posteriori voting power of voters from equal sized groups.

The bias against voters from geographically-dispersed groups also cannot be

justified by the purported advantages of geographic electoral constituencies

(cf. Beitz 2018: 350). As I will discuss in Section 4.4, the bias does not only have

drawbacks for geographically-dispersed groups but also harms the overall

system by increasing the likelihood of legislative gridlocks. Heterogeneous

constituencies provide the same benefits as geographic constituencies but do

not create the same drawbacks: They rather contribute to preventing

legislative gridlock and do not distribute the costs of having multiple electoral

constituencies unequally over different groups of voters.

4.3.3 Objection: Marginalised Voices

The objection could be raised that the bias created by geographic electoral

constituencies is justified by the need to combat the marginalisation of certain

groups. Some groups encounter obstacles to political participation and may

need special representation rights to enjoy equal democratic inclusion. The

geographic boundaries of constituencies could be drawn to promote the

representation of those marginalised groups. This can be done by

concentrating the groups in particular group-conscious constituencies, in which

they are able to elect their own representatives. The bias towards

concentrated groups is then a corrective measure, compensating for the

political exclusion that those groups otherwise experience (cf. Kymlicka 1995:

145; Young 2002: 141-148; Williams 1998: 15-18,176-202).

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Heterogeneous Constituencies and Legislative Gridlock

This argument is based on the assumption ‘that geography works as a

proxy for both identifying and promoting’ marginalised groups (Guinier 1992:

1162). However, the criterion of marginalisation captures a broad range of

groups that are not necessarily geographically-concentrated, such as groups

based on age, class, gender, ethnicity, race or language. Group-conscious

constituencies cannot be created for marginalised groups that are

geographically-dispersed. The geographic-definition of constituencies may thus

still create a bias against geographically-dispersed groups that cannot be

justified by the need to combat marginalisation.

Moreover, it can be questioned whether group-conscious constituencies

are the best remedy against marginalisation. For example, Lani Guinier (1991)

argues that group-conscious constituencies may enhance the voting power but

dilute the legislative power of marginalised groups. This is because

representatives in other constituencies will not feel incentivised to represent

the group’s interests in the legislature and these interests will consequently

not be reflected in legislative outcomes. Therefore, group-conscious

constituencies could inadvertently serve as an instrument to further

marginalise the group’s voice in legislative decision-making.

As it is beyond the scope of this chapter to engage in the debate about the

most effective and justifiable form of group representation against

marginalisation, I want to conclude by highlighting that if one believes that

certain marginalised groups require group-conscious electoral constituencies

to ensure their equal democratic inclusion, then such constituencies need not

be geographically-defined. Group-conscious constituencies could also be

created through stratified random selection. Some or all of the membership

positions in a constituency are then randomly assigned to voters of a

marginalised group and the remainder of the membership positions are

randomly assigned to voters from the entire electorate. For example, in the

U.S., race-conscious random constituencies could be created and combined

with completely heterogeneous constituencies, just as race-conscious

geographic constituencies are now created and combined with other

geographic constituencies. Similarly, in New Zealand, the dedicated Mãori

constituencies, which solely consist of voters from the indigenous Mãori

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population, do not need to be defined geographically. They can be created by

randomly assigning Mãori voters to the constituencies and, just as they do

now, they can supplement the general electoral constituencies.

4.4 preventing legislative gridlock

The bias resulting from the geographic-definition of electoral constituencies

does not only compromise democratic equality but also the democratic

capacity to make collective decisions. In this Section, I will show the effects

that geographic constituencies, due this bias, have on cleavage formation and,

thereby, on the threat of legislative gridlock. Moreover, I will argue that, as an

unbiased design, heterogeneous constituencies do not have such adverse

effects but can rather contribute to preventing legislative gridlock.

4.4.1 Two Hypotheses

Let me posit two hypotheses about the effects of electoral constituency design

on cleavage formation.

Hypothesis 1: Geographic constituencies incentivise political actors to

politicise cleavages that reinforce geographic divisions.

Hypothesis 2: Heterogeneous constituencies empower political actors to

leverage all salient cross-cutting axes of social division that exist in the

society as a whole.

I expect these differences in effects because geographic constituencies

electorally reward geographically-concentrated group identities, whereas

heterogeneous constituencies do not prioritise any group identities or social

divisions. While these hypotheses will be substantiated with empirical

illustrations and existing empirical evidence, comprehensive and systematic

testing of the hypotheses is beyond the scope of this chapter.

The hypotheses are based on the assumption that political actors

(individual representatives and parties) seek to be re-elected and, therefore,

want to satisfy electoral pressures. These electoral pressures incentivise them

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Heterogeneous Constituencies and Legislative Gridlock

to make a particular identity choice. This is a rational choice to politicise the

identity, from a set of potentially mobilisable social categories, that provides a

useful vehicle for political competition and can lead to membership in the

politically and economically most useful coalition (Posner 2004; 2005: 2-6, 138-

139). I expect electoral constituencies to shape the identity choice of political

actors within a particular constituency and to coordinate this choice across

constituencies. At the constituency level, constituency boundaries determine

whether a group is large enough in size to meet the constituency electoral

threshold and thus to win a seat in the constituency. At the national level,

electoral constituencies create a ‘uniform’ context in which it is ‘common

knowledge’ that certain groups are more politically viable at the constituency-

level than others (cf. Posner 2005: 5-6). In this way, electoral constituency

design coordinates the identity choices by national political parties and

influences which cleavages become politically salient in the nation as a whole.

If the two hypotheses prove to be correct, then geographic constituencies

exacerbate the threat of legislative gridlock, whereas heterogeneous

constituencies help to prevent legislative gridlock. This is because cleavage

formation in the legislature drives the threat of legislative gridlock. On the one

hand, the politicisation of reinforcing cleavages heightens conflict. Voters and

parties are then divided into two camps that tend to be unwilling to make

compromises. On the other hand, the politicisation of cross-cutting cleavages

can moderate political conflict and, thereby, enhance the parties’ ability and

willingness to make compromises. Given the partial overlap between cross-

cutting groups, cross-cutting cleavages create so-called “cross-pressures” for

voters: The different group affiliations pull them in different political directions.

These crosspressures reduce the intensity of feeling with which certain

identities are held, including partisan identities, and therefore generate

moderation in political conflict. This moderating effect on political conflict, in

turn, helps representatives traverse group boundaries (Goodin 1975; Rae and

Taylor 1970: 85-89;

Powell 1970: 37-38; Lipset 1960: 83-90, 203-216).

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4.4.2 The Strategic Effects of Geographic Constituencies

To see how geographic constituencies shape and coordinate strategic identity

choices by political actors, imagine a Hypothetical Harmonious Society (HHS).

In this society, there are two potentially politically salient cleavages that are

cross-cutting: a religious cleavage between the Protestants and Catholics, and

a linguistic cleavage between French- and Dutch-speakers. Assume that both

cleavagesprovideanequallyviablebasisforpoliticalcompetitionandcoalitionbuildi

ng at the national level, when there are no electoral constituencies, and that

political representatives have perfect information about this. Political actors

have perfect information when they know the exact numbers in the row and

column totals (though not necessarily in each cell) of the society’s identity

matrix (Posner 2005: 132). Table 4.2 shows the identity matrix of the HHS. It

shows that, at the national level, political parties could choose to politicise the

linguistic cleavage and build a majority coalition among French-speakers.

Alternatively, they could choose to politicise the religious cleavage and build a

majority coalition among Protestants.

Now suppose that the electorate in the HHS is evenly distributed over

three geographic electoral constituencies (a Northern, Central and Southern

constituency) with a Single Member Plurality (SMP) voting rule, meaning that

one winner is elected in each constituency based on the highest number of

votes. Tables 4.3 to 4.5 show the identity matrices for each constituency. The

Northern and Central constituencies have an equal number of French- and

Dutch-speakers, but an unequal number of Protestants and Catholics. As there

is a large majority of a particular religious denomination in each geographic

constituencies, the religious cleavage becomes the most viable basis for

political competition. In the South, both cleavages provide a useful vehicle for

political competition but since political representatives form political parties

and build coalitions with representatives from the Northern and the Central

constituencies, they are also likely to emphasise the religious cleavage that

dominates the other constituencies. The result is a not so harmonious society

that is split into a Protestant and Catholic faction, and a legislature ruled by the

Catholics, given that they win two out of three constituencies, even though

they form a minority in the nation as a whole.

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Heterogeneous Constituencies and Legislative Gridlock

It should be noted that these strategic effects are amplified by the

combination of geographic constituencies with a single seat. Under larger

constituency magnitudes, these effects would diminish as the system becomes

more proportional. However, the effects can still be observed under relatively

low constituency magnitudes. Suppose that the constituency magnitude is

three, meaning Protestants Catholics Total

French speakers160 Dutch speakers140

Total 300

Table 4.2: The Hypothetical Harmonious Society

Protestants Catholics Total

French speakers10 50

Dutch speakers10 50

Total 20 100

Table 4.3: The Hypothetical Harmonious Society: North

Protestants Catholics Total

French speakers 2050

Dutch speakers 2050

Total 40 100

Table 4.4: The Hypothetical Harmonious Society: Central

Protestants Catholics Total

French speakers60 Dutch speakers40

105

100 60

60 80

40 20

0 40

40 60

chapter 4

Total 100

Table 4.5: The Hypothetical Harmonious Society: South

that the constituency electoral threshold is 25% under a proportional electoral

formula. The Protestants would then be able to get all three seats in the

Northern constituency, as they have 80 of the 100 votes. In response, Catholics

would likely try to get four seats in the Central and Southern constituencies.

The fact that there is one predominantly Protestant constituency may thus also

coordinate the choice of political parties to focus on the religious cleavage in a

PR system with a low but not minimal constituency magnitude.

TheHHSdemonstrateshowsingle-seatgeographicelectoralconstituencies

affect identity choice. By labelling and separating voters, geographic

constituencies condition citizens and representatives to engage in primarily

group located politics. They coordinate this identity choice across political

actors, thereby structuring national electoral competition around one

particularly politically salient cleavage. These effects of single-seat geographic

constituencies could explain, for example, why language is the main political

cleavage in Belgium, and why ethnicity is the primary political cleavage in

Malawi. In Malawi, there are at least two potentially salient cleavages: an

ethnic cleavage and a religious cleavage. Malawi has three relatively large

religious groups – Catholic Christians, Protestant Christians, and Muslims – and

two relatively large ethnic groups – the Tumbukas and the Chewas. Each of

these groups are large enough vis-à-vis the nation as a whole to provide a

viable basis for party competition and national coalition-building. But only the

ethnic groups are geographically concentrated. The Tumbukas are heavily

concentrated in the Northern region, the Chewas are heavily concentrated in

the Centre region, and the Southern region consists of a mix of different other

ethnic groups. As each of these regions is again divided into geographic

electoral constituencies, the safest path to electoral success for representatives

in the North and the Centre of Malawi is by fully embracing their partiality in

favour of one ethnic group and further consolidating this ethnic cleavage.

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Heterogeneous Constituencies and Legislative Gridlock

4.4.3 The Strategic Effects of Heterogeneous Constituencies

Heterogeneous constituencies are neutral with respect to the cleavages

around which politics should revolve. They do not shape and coordinate

identity choices by political actors, as the groups that are potentially politically

viable at the national level are also potentially politically viable in

heterogeneous constituencies. For example, in the HHS, political actors face

the same electoral opportunities when they politicise the religious cleavage as

when they politicise the linguistic cleavage. Political actors are not conditioned

to engage in politics on the basis of one particular cleavage. Heterogeneous

constituencies thus do not create convergence among political actors on one

particular cleavage. In this way, heterogeneous constituencies already help to

prevent legislative gridlock.

Do heterogeneous constituencies also encourage the politicisation of

crosscuttingcleavagesthatcanfurthermoderatepoliticalconflict?Politicaltheorists

have recently answered this question negatively (e.g., Bogaards 2003; Ciepley

2013; Deschouwer and Van Parijs 2019; Rehfeld 2005). Their arguments

suggest that heterogeneous constituencies instead lead to the suppression of

all cleavages in the legislature: They would create a homogeneous legislature

that does not reflect any group differences. These arguments focus on

heterogeneous constituencies in SMP systems. According to Duverger’s law,

there are in SMP systems generally two political parties competing for the

seats in the legislature. In the face of heterogeneity, these parties cannot win

the majority of votes by appealing to the particularity of any group. As they

have to seek electoral support across group divisions in order to win a seat,

they are incentivised to depoliticise deep social divisions and make “moderate”

policy proposals that are accommodative of different groups. In particular,

following the median voter theorem, political parties would be pulled towards

the position of the median voter. The median voter has an equal number of

voters lying to her left as to her right. Although the median voter does not

need to represent a “centrist” political ideology, she is more likely to be

centrist in heterogeneous than in homogeneous constituencies. As the median

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voter is the same in all heterogeneous constituencies, heterogeneous SMP

constituencies would incentivise all political actors to represent positions on

policy issues that are located closely around the same median voter. The result

is a unanimity of interests and opinions in the legislature.

However, these arguments assume a two-party political race and do not

consider the possibility of a third party entering the political arena. Suppose

that voters are deeply divided along a single cleavage. In that case, a third

party is most likely to enter when it takes more extreme positions, as more

extreme parties have a realistic chance of gaining the highest number of votes

by attracting voters on the left or right-side of the political spectrum and have

more to gain from entering to avoid others policies than moderate parties

(Palfrey 1984; Grosser and Palfrey 2014). Since existing political parties want to

deter a third party from entering, they will also strive to retain support from

extremists on its flanks. Consequently, an alternative equilibrium emerges in

which the two political parties are equidistant from the median and only a

third party, if it exists, will be around the centre (Callander 2005; Cox 1990;

Powell 2000: 177-178, 187, 196-200). The divergence among political parties,

furthermore, increases when the voter group is deeply divided. Voters may

threaten to abstain from voting when political parties take centrist positions

and political parties are, consequently, incentivised to seek more extreme

positions on pain of losing votes (Dahl 1966: 376; Jones et al. 2022). Political

competition in heterogeneous SMP constituencies thus does not drive political

parties towards adopting a “centrist” political ideology but rather leads to the

expression of intergroup differences in the legislature.

Moreover, when voters are divided along multiple cross-cutting cleavages,

political competition in heterogeneous constituencies encourages political

parties to politicise all those cleavages. This effect is corroborated by research

linking the number of cross-cutting cleavages to the number of political parties

within a political system (Neto and Cox 1997: 155; Clark et al. 2017: 641-

644).Suppose that a Protestant and Catholic Party have already formed in the

HHS. These parties are unable to politicise the cross-cutting linguistic cleavage

as they try to gain votes from both linguistic groups. Furthermore, suppose

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Heterogeneous Constituencies and Legislative Gridlock

that there is a French-speaking Catholic who wants to enter the political scene

and is more interested in the French language than her religious

denomination. In this case, the French Catholic has a strategic choice to enter

the scene under the label of the existing Catholic party or under the label of a

new French party. As the French-speaking population is in the majority and the

existing parties do not politicise the linguistic cleavage, the French Catholic has

a realistic chance of winning a seat under the label of a French party.

Heterogeneous constituencies thus provide favourable conditions for a third

party to enter the political scene by leveraging another cross-cutting cleavage.

The conditions for politicising multiple cross-cutting cleavages are even

more favourable when heterogeneous constituencies are combined with

multiple seats. Smaller parties that politicise cross-cutting minority identities

can then enter the political scene. As such, multi-seat heterogeneous

constituencies can help avert legislative standstills by facilitating the

politicisation of the cross-cutting cleavages.

4.5 conclusion

In many democracies around the world, electoral constituencies are defined in

expressly geographic terms, making inclusion in representative relationships

dependent on area of residence. In the absence of a viable alternative, these

geographic constituency boundaries have remained largely unquestioned. Yet,

new technological advancements present the opportunity to replace

geographic constituencies with heterogeneous constituencies, which are not

geographically-based and can be created purely for political purposes. In this

chapter, I have offered a defence of such a transition.

The aim of this defence has been two-fold. First of all, it is intended to shed

light on the limitations inherent in our contemporary geographicallydefined

electoral systems. Through the example of the Hypothetical Neutral Society, I

have demonstrated that geographic electoral constituencies violate democratic

equality. I have argued that they unjustifiably increase the capacity to influence

legislative outcomes of voters from geographically-concentrated groups and,

relatedly, create an unfair asymmetry in the shares of seats that

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geographically-concentrated and geographically-dispersed groups can obtain

with a given share of the vote. Heterogeneous constituencies do not create

this bias: They make the legislative success of groups solely dependent on their

sizes and not on their geographical settlement patterns.

Second, my defence can be read as a call for institutional reform. Through

the example of the Hypothetical Harmonious Society, I have demonstrated that

geographic constituencies, by electorally rewarding

geographicallyconcentrated minorities, incentivise political actors to crystallise

reinforcing cleavages along geographic lines, whereas heterogeneous

constituencies empower political actors to politicise the salient cross-cutting

cleavages that exist in society. As reinforcing cleavages heighten political

conflict and crosscutting cleavages can moderate political conflict, this suggests

that replacing geographic constituencies with heterogeneous constituencies

can offer a potential institutional remedy to the democratic problem of

legislative gridlock.

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5Group-Conscious Constituencies and Marginalisation

Summary Several countries around the world use group-conscious electoral constituencies

to increase the electoral influence of marginalised racial and ethnic groups. In this chapter, I

explore which marginalised groups, if any, should be attributed group-conscious

constituencies. I make a distinction between marginalised ascriptive and marginalised

autonomous groups. The former group is defined by a primarily negative and individualistic

goal of overcoming the structural constraints that members face on the basis of their shared

attributes. The latter group is defined by a primarily positive and collective goal of

preserving, promoting and protecting a common public culture. The central claim of this

chapter is that if political theorists and electoral designers believe that marginalised groups

deserve a special representative status, then they should attribute group-conscious

constituencies to all and only all marginalised autonomous groups. Group-conscious

constituencies have a group-reinforcing logic. I argue that this logic conflicts with the goals

of marginalised ascriptive groups, whereas it is compatible with the goals of marginalised

autonomous groups, even if those groups seek to attain

selfgovernmentrightsratherthanpoliticalinclusion.Theargumenthasimportant implications for

the practice of race-conscious districting in the United States, where such constituencies are

created for blacks without making a distinction between a thick and thin understanding of

black identity. The upshot is that race-conscious constituencies should only be given to

Blacks, in the thick sense of the term, referring primarily to African Americans but not to all

marginalised individuals with a dark skin.

5.1 introduction

The demarcation of electoral constituency boundaries plays a crucial role in the struggle for

political empowerment of marginalised groups. When the boundaries are drawn group-

consciously, this can effectively increase the electoral influence of these groups. In group-

conscious electoral constituencies, a marginalised group is sufficiently numerous to elect its

own representatives. Since the 1956 Voting Rights Act, legal battles are regularly fought in

U.S. courts over the number of group-conscious constituencies created for marginalised

racial and ethnic groups. In a recent landmark ruling, the U.S. Supreme Court ordered the

State of Alabama to create at least two race-conscious electoral constituencies in order to

prevent the dilution of the voting power of Black Alabamans. The State of Alabama is,

however, determined to appeal this decision again, seeking approval to craft – what it terms

– “race-neutral” constituency maps which ‘foster a transformation to a society that is no

longer fixated on race.’ This legal battle raises the question: For which marginalised groups,

if any, is the creation of group-conscious constituencies justified?

Group-conscious constituencies are typically justified by the need to combat

marginalisation in the political process. Members of marginalised groups face systemic

barriers to political participation, hindering their capacity to influence legislative outcomes.

To guarantee political equality, these groups have to be provided a special representative

status (Young 1990: 41-42; 2002: 34, 141; Williams 1998: 176-202). A broad range of social

groups can be considered marginalised. As Will Kymlicka (1995: 145) observes, the term

seems to include ‘everyone but relatively well-off, relatively young, able-bodied,

heterosexual, white males.’ However, group-conscious constituencies tend to be created

predominantly for one specific set of marginalised groups: racial and ethnic minorities. This

is not only the case in the U.S. but also in several other countries, such as Mexico, New

Zealand, Niger and Panama. This focus on ethnic and racial minorities in the creation of

group-conscious constituencies is rarely justified, which is problematic for two reasons: First

of all, it increases the risk that political theorists and electoral designers overlook other

marginalised groups which warrant similar representation. Second, it increases the risk of

inadvertently prescribing inappropriate remedies against the political disempowerment of

certain marginalised groups.

In this chapter, I make a distinction between two categories of marginalised groups:

marginalised ascriptive groups and marginalised autonomous groups (Section 5.2). The

difference between these groups lies in their political goals. The goal of marginalised

ascriptive groups is primarily negative and individualistic: Members aim to overcome the

structural constraints that they face due to the social meaning that the broader society

attaches to their shared attributes. Women form a paradigmatic example of these groups.

By contrast, the goal of marginalised autonomous groups is primarily positive and collective:

Members are committed to preserving, protecting and promoting their common public

culture. They perceive their marginalisation as a deliberate undermining of their shared

cultural beliefs, values, practices and behaviours.

Indigenous populations form a paradigmatic example of these groups. Building on this

distinction, my core claim will be:

If political theorists and electoral designers believe that marginalised groups

deserve a special representative status, then they should attribute group-

conscious constituencies to all and only all marginalised autonomous groups.

Thelogicbehindgroup-consciousconstituenciesisgroup-reinforcing:Their purpose is to

assert the distinct political status of a group. This distinguishes group-conscious

constituencies from, for example, quota requirements that may, despite first appearances,

have a group-cancelling logic and thus may eventually ‘put a group out of business as a

group’ (Fraser 2014: 18; cf. Htun 2004: 451). The group-reinforcing logic determines which

groups benefit from dedicated electoral constituencies. I argue that this group-reinforcing

logic is only compatible with the goals of marginalised autonomous groups, not

or more electoral constituencies to members of a particular race or ethnicity.

with those of marginalised ascriptive groups (Section 5.3). Moreover, I argue that this group-

reinforcing logic of political inclusion is compatible with the goals of all marginalised

autonomous groups, even if they do not seek cultural self-determination through political

inclusion but through self-government rights (Section 5.4).

My argument has important implications for the practice of race-conscious districting in

the United States. Some political theorists have advocated for race-conscious constituencies

to politically empower black voters (James 2011: 900; Williams 1998: 231-239). Yet, they

have done so without distinguishing a thick and thin understanding of black identity. The

former refers primarily to African Americans who share a “Black culture” on the basis of a

common cultural heritage or a history of oppression. The latter refers to a broader group of

black people, who share certain inherited physical attributes such as a dark skin and tightly

coiled or curly hair (Shelby 2002: 239-244). When theorists are concerned with Blacks, in

the thick sense, their defence for race-conscious constituencies holds ground. However, they

often seem to be referring to blacks, in the thin sense. In that case, the State of Alabama

may have a point that group representation should foster a society in which being black no

longer matters for one’s political power and race-conscious constituencies fail to contribute

to achieving that goal.

5.2 two categories of marginalised groups

Marginalised groups are social groups. They are typically identified by the members’ shared

attributes, such as class, gender, race, or religion, but they are more than arbitrary

classifications of individuals on the basis of those attributes. The shared attributes must also

be socially salient, in the sense that group members themselves or the broader society must

attach a certain social meaning to them. As social groups, marginalised groups are thus

constructed in social interactions (cf. Young 1990: 42-48).

Social groups are marginalised when group members experience structural constraints

in their every day lives that generate deep cultural and socioeconomic injustices. These

constraints are often not the result of the intentions of a tyrannical group. Rather, they are

the product of the negative meaning attached by the broader society to the group

members’ attributes. Members thus find themselves in a certain societal position on the

basis of attributes that cannot (readily) be changed, rather than their individual actions or

achievements. The consequent cultural and socio-economic inequalities, in turn, generate

political inequalities. They create barriers to political participation: Members of marginalised

groups tend to have fewer resources to mobilise around their group identity, lower

prospects of winning a seat in the legislature, and fewer opportunities to make their voice

heard in democratic deliberations. As a consequence, their voice is marginalised or even

silenced in the political process (Young 1990: 41-42; 2002: 34, 141; Williams 1998: 15-18,

176-202).

The claims to group representation of marginalised groups do not follow immediately

from the social injustices that group members experience. A substantial proportion of group

members also needs to actually have a form of group solidarity. In particular, a substantial

proportion of group members must satisfy at least two conditions of group solidarity:

mutual identification and commitment to shared goals.4 As I will explain below, attributing

marginalised groups a special representative status otherwise cannot be justified.

First, a substantial proportion of group members must share a sense of belonging

together as a group: They must perceive their group affiliation as integral to who they are

and mutually recognise one another as members of

recognise each other as part of this sect. This would be a social group even if the rest of society does not know

about it. My notion of social group is thus broader than, for example, the definition by Tajfel and Turner (2001:

100), according to which a social group ‘is a collection of individuals who perceive themselves to be members

of the same social category, share some emotional involvement in this common definition of themselves, and

achieve some degree of social consensus about the evaluation of their group and their membership of it.’

4I am concerned with solidarity as a relationship among members of the same group, not solidarity with

members of another group (O’Neill 1996: 201). Moreover, I take mutual identification and shared goals to be

necessary elements for group solidarity but they might not be sufficient. For example, Shelby (2002: 237-238)

considers the two elements plus group loyalty and mutual trust to be jointly sufficient for a robust form of

group solidarity. And Miller (2017: 62-65) also sees mutual concern, collective responsibility and limits on

inequality as defining features of group solidarity.

the group. Mutual identification by a substantial proportion of members is necessary for a

claim to group representation because social groups are dynamic entities whose sense of

identity is shaped by socio-political institutions. Imposing group representation on members

who have no understanding of themselves as a group thus risks constructing or affecting

their group identity (Haslanger 2004: 111). And, as Melissa Williams (1998: 201) points out,

institutionally defining members as a group independent of their self-identification would be

‘to advocate vanguardism’.

Second, a substantial proportion of group members must think of their actions as a

means to a group end and believe that other group members also share this commitment to

reaching certain goals. These shared goals serve as a justification for a claim to group

representation. Without such shared goals, the purpose of granting a special representative

status to a group would remain unclear. A good indicator for the existence of such shared

goals is the degree of political mobilisation around the group identity. Shared goals motivate

group members to invest their time and resources in political engagement with the aim of

bringing about social change. They also help these groups in overcoming collective action

problems by fostering a belief among members that all are equally willing to make the

necessary sacrifices (cf. Shelby 2002: 233). Despite facing significant barriers to political

participation, some marginalised groups are thus unusually politically active, such as

women, black Americans and indigenous populations. As such groups can be considered to

have an especially strong claim to group representation, they will be the focus of my

analysis.

The content of the solidaric commitment of marginalised groups may vary. In particular,

a solidaric commitment among members of marginalised groups can concern one of two

types of shared goals:

Social Empowerment. Group members are united in their commitment to fighting

against being separated, labelled, and made second-class citizens. They share the goal of

overcoming or mitigating the structural constraints that they experience in their

everyday lives. This goal can often only be achieved by challenging the perceptions,

attitudes and social norms perpetuating their marginalisation.

Cultural Self-Determination. Group members are united in their commitment to

preserving, protecting and promoting their common public culture. Their joint goal is to

be culturally self-determining. If they consider it impossible to freely pursue their own

cultural development within the larger state, they may demand powers of self-

government on a particular territory or plot of land, whether by forming a federal

subunit or by seceding.

The first goal is primarily negative and individualistic: The group seeks to eliminate the

significance of group membership for each members’ social position. Members’

identification with the group is constituted by their shared experience of marginalisation,

which is the result of the negative social meaning ascribed by the broader society to their

shared attributes. The group identity is thus rooted in a sense of victimhood, which is not to

say that members should be ashamed of it (Shelby 2002: 265).

By contrast, the second goal is primarily positive and collective. Group membersidentify

with each other and with the group onthe basis of a common public culture. This common

public culture involves an identifiable set of beliefs, values, behaviours, traditions and

practices that shape their way of life and world-view. It can either stem from the common

ethnic origins of the members or emerge as a “counter-culture” in response to the

perceived deprivation of the group within the political system. Group members actively

practice this culture and often experience it as a basis for their self-respect. Their group

identity is also inherently active: They intend to freely pursue their cultural development by

deciding and doing things together as a group. This distinguishes these groups from, for

example, certain religious groups that have an essentially passive identity as they do not

engage in collective action but rather aim to interpret the message of God (Miller 1995: 24).

The two goals reflect different understandings among group members of the value of

their solidarity. When group members commit to attaining social empowerment, they

presumably perceive their solidaric relationships as instrumentally valuable. Their goal is

external to that relationship and when the goal is reached, the relationship may cease to

exist. By contrast, when group members are committed to cultural self-determination, they

tend to perceive their relationships of solidarity as intrinsically valuable. The value of those

relationships may, for example, be considered to lie in providing a social basis for self-

respect and individual autonomy (Straehle 2020: 532-535). The solidaric commitment flows

from those existing valuable relationships, and aims to strengthen and gain control over

them.

Allow me to highlight that I employ a non-moralised understanding of solidarity. I am

referring to the value of solidarity as it is perceived by group members. This does not mean

that the relationship actually has value. Mafiosi may also have a solidaric commitment to

social empowerment or cultural selfdetermination, just as terrorist cells, xenophobic

nationalists, racist groups and so on. However, given that these groups clearly pursue bad

ends, the solidaric relationships built to realise those ends do not have any actual overall

value (Sangiovanni 2023: 111-112). The fact that these groups can form certain

solidariccommitmentsalsodoesnotimplythatthey oughtto beprovidedgroup representation.

From the perspective of the institutional designer, there has to be some normative criterion

for evaluating the plausibility of the claims about marginalisation that inform solidaric

commitments. I assume that, in order to have a right to group representation, the claims to

social empowerment and collective self-determination by solidaric groups must at least be

reasonable.13

Two categories of marginalised groups can be distinguished on the basis of the content

of their solidaric commitment:

Marginalised Ascriptive Groups are largely united by a solidaric commitment to social

empowerment.14

Marginalised Autonomous Groups are largely united by a solidaric commitment to

cultural self-determination.

It is in practice not always clear-cut whether a particular marginalised group belongs to one

category or the other. Just as some group members may not share a solidaric commitment,

quite fundamental disagreement among group members may arise about the precise

content of their shared goals. Solidaric commitments among group members may also

change over time. Relatedly, the initially instrumental relationships of solidarity may come

to be perceived as intrinsically valuable over time. One could argue that such a shift in the

control over this to be obligated to form solidaric relationships.

13I employ the notion of reasonableness in a broadly Rawlsian sense, see Quong (2011). This means that

claims of marginalisation do not have to be valid according to the true theories of justice and collective self-

determination. Like many deliberative democrats, I have a partially procedural understanding of how we

determine whether those claims are valid in the first place. This means that reasonable political claims should

be heard in the political process and that groups should be empowered to make them, even if those claims

eventually turn out to be unjustified.

14I borrow the term marginalised ascriptive groups from Williams (1998: 15).

understanding of their solidaric relationship has taken place among many indigenous

populations. I will identify a particular group as belonging to one or the other category when

a substantial proportion of the members are generally assumed to share a solidaric

commitment to the category’s goal.

Women form a paradigmatic example of marginalised ascriptive groups. They are

marginalised on the basis of their inherited physical attributes, such as body shape and

voice, but do not possess interests, values, or practices that are fundamentally different

from those of men. When adopting a thin conception of black identity, black Americans can

also be classified as a marginalised ascriptive group. In this thin conception, blackness is

defined by inherited physical attributes. These attributes make individuals vulnerable to

anti-black racism, irrespective of their law-abiding behaviour, socio-economic status, or

assimilation into the dominant culture (Shelby 2002: 239-240).

By contrast, a paradigmatic example of marginalised autonomous groups is given by

indigenous populations. These populations share a cultural heritage and are often

considered to have a right to self-determination on their ancestral homeland. When

adopting a thick conception of black identity, black people can also be classified as a

marginalised autonomous, rather than an ascriptive, group. In this thick conception,

Blackness traces descent from certain subSaharan African peoples. The descendants share a

“Black culture”, which either stems from the cultural heritage of their ancestors or is created

by experiences of oppression and slavery that their ancestors endured since their forced

displacement from Africa. Using this thick conception of black identity, it is conceivable that

an individual suffers from anti-black racism without being authentically Black, either

because she is assimilated into the dominant “White” culture or because she does not have

the required ethnic origins (Shelby 2002: 241, 243). For the remainder of this chapter, I will

capitalise the word “Black” when I specifically refer to the group of people falling under the

thick conception of black identity.

5.3 the logic of group-conscious constituencies

Electoral constituencies are subsets of the enfranchised citizenry that are tasked with

electing a defined number of representatives for the legislature (Carlsen Häggrot 2023a:

302). Group-conscious electoral constituencies largely or solely consist of members of a

particular social group. In group-conscious constituencies, members of the group are

sufficiently numerous to authorise and hold to account their own representatives. That is,

they can grant authority to representatives by electing them and they can hold those

representatives to account at the next election cycle by deciding on their re-election (James

2011: 905). The threshold at which the group is considered “sufficiently numerous” depends

on the voter turn-out and political cohesiveness of the group and its competitors within the

constituency. I use the term group-conscious constituencies to refer both to majority-

minority constituencies, where the group constitutes at least a majority within the

constituency, and to communal constituencies, where the group comprises the whole

constituency. For example, race-conscious constituencies in the U.S. exemplify majority-

minority constituencies, whereas the dedicated Mãori constituencies in New Zealand

exemplify communal constituencies.

Group-conscious constituencies have substantive and symbolic benefits.

The more numerous the group is in a constituency, the more notable these benefits are. In

this Section, I argue that the substantive and symbolic benefits provided by group-conscious

constituencies are only compatible with the goals of marginalised autonomous groups. I will

contrast the benefits of groupconscious constituencies with those provided by quota

requirements and show that the latter are better suited to the goals of marginalised

ascriptive groups. Substantive benefits pertain to the substantive activity of representing.

Group representation yields substantive benefits when it enhances the inclusion of the

interests, opinions or perspectives of the group or its members into the political process

(Pitkin 1967: 114-115). Group-conscious constituencies empower marginalised autonomous

groups to pursue the substantive representation of their shared cultural interests and

perspectives. They can authorise their own representatives to act for them in the legislature

and can hold those representatives to account at the next elections. This iterative process of

authorisation and accountability establishes a continuous connection between

representatives and the group members, increasing the incentives for representatives to

stand in for the group’s substantive interests. It enables group members to actively shape

the representation of their group interests through interactions with representatives. This is

particularly notable in constituencies that are composed solely of group members, as there

is then no need to vote as a cohesive voting block in order to secure the election of a

representative of the group. The absence of such strategic voting pressures allows for a

more open and dynamic exchange of views among group members. This opportunity for

group members to make collective decisions as a group fits the cooperative nature of

marginalised autonomous groups.

Although group-conscious constituencies increase the number of representatives in the

legislature that are dedicated to substantively representing a group, this does not

necessarily translate into more legislation in favour of the group’s interests. As group

members are concentrated in specific constituencies, they lack the capacity to influence

representatives in other constituencies. Consequently, those representatives do not have

electoral incentives to acknowledge the group’s interests and perspectives. This may lead to

a decrease in the number of votes in support of legislation benefiting the group (Cameron et

al. 1996; Guinier 1994: 135; Lublin 1997: 98-119; Rehfeld 2005: 236-237). There is thus a

trade-off between substantive dyadic representation, concerning the positions taken by a

particular representative on behalf of its electoral constituency, and substantive collective

representation, concerning the policies adopted by the entire legislative body (cf. James

2011: 905).

Given this trade-off, institutions for group representation should also be

consideredfortheirsymbolicbenefits.Thesebenefitsextendbeyondtheeffects on policy output

and concern the broader impact of group representation on perceptions, attitudes and

societal norms (Hayes and Hibbing 2017: 33; Pitkin 1967: 97). The symbolic benefits of

group-conscious constituencies are that they affirm the distinct political status of

marginalised autonomous groups: They have a group-reinforcing logic (cf. Htun 2004: 451).

By creating group-conscious constituencies, the electoral designer establishes that the

group needs to have its own representatives and extends recognition to the fact that the

group forms an autonomous collective whose members have committed to deciding and

doing things together as a group. These symbolic effects are likely stronger if the group is

attributed communal instead of majority-minority constituencies.

Group-conscious constituencies emphasise the autonomy of voters in selecting

representatives who effectively advocate for the group’s substantive interests. Without

restrictions on the competing candidates, group members are free to elect representatives

regardless of whether they belong to the group themselves. By contrast, quota

requirements rely on the autonomy of representatives in providing substantive

representation. Quotas guarantee the presence of members of the group in the legislature

and these members have as representatives a certain political discretion in articulating the

interests and perspectives of the group. In particular, these representatives can use their

political discretion to respond to newly presented issues on behalf of their group (Dovi

2002: 732-733; Phillips 1998: 44-45, 69-71, 77-83).

Because quota rely on the autonomy of representatives, they are particularly beneficial

for the substantive representation of marginalised ascriptive groups. Three prominent

theorists have argued that members of these groups share a unique perspective as a

consequence of their distinct experiences of marginalisation. Jane Mansbridge (1999: 641)

considers ascriptive similarity to capture ‘the outward signs’ that people have lived through

‘a set of common experiences.’ Melissa Williams (1998: 6) claims that members of

marginalised ascriptive groups share a ‘distinctive perspective on matters of public policy

that comes from that experience.’ And Iris Marion Young (2002: 98, 136) asserts that

members of marginalised ascriptive groups are ‘differently positioned in social structures’

and this distinct social position produces ‘a particular location-relative experience (...) or

point of view on social processes.’ This distinct perspective would enable all group members

to represent the substantive interests of the group. As Jane Mansbridge (1999: 644)

suggests, ‘a voter can expect the representative to react more or less the way the voter

would have done, on the basis of descriptive similarity.’ There would then be no need for

mechanisms of authorisation and accountability that incentivise representatives to react as

they think their voters would.

However, by insisting that all and only all members of marginalised ascriptive groups

share distinct experiences and perspectives, the three theorists fall into the trap of

essentialism. They portray the groups as more homogeneous than they actually are and,

thereby, fail to appropriately acknowledge the internal diversity within the groups. Given

intra-group diversity, shared experiences and perspectives can, at best, be attributed to

group members in a probabilistic sense. That is, members of marginalised ascriptive groups

may be more likely than others to share certain experiences, which in turn constitute a

distinct social perspective. For example, while blacks may be more likely to live in poverty

than whites, not all blacks actually experience poverty in their lives. And while most blacks

certainly experience anti-black racism, there are always outliers. These outliers may not

share the same experiences and perspectives as most other group members, but can still be

‘authentically black’ (James 2011: 901-902).

Instead of a distinct perspective due to experiences of marginalisation, members of

ascriptive groups can be said to have a ‘group perspective’, which is a list of issues of shared

concern. For example, certain issues are gendered, such as abortion and pregnancy. While

women do not take the same positions on these gendered issues, they share a distinct

concern with these issues (cf. Phillips 1998: 68-69). Quota can ensure that the impact of

those issues on group members is not neglected in the legislature. For example, a female

representative could substantively represent women, not necessarily by advocating a

specific stance on any issue, but by highlighting the gendered nature of issues like abortion

and pregnancy. By initiating debate on the gendered impacts of policy decisions on such

issues, she can facilitate a discussion that might otherwise be overlooked in a legislature

dominated by men.

In contrast to group-conscious constituencies, quota requirements are also compatible

with the goals of marginalised ascriptive groups. As marginalised groups fight against being

separated, labelled, and made second-class citizens, group representation should not lead

to the recognition of group differences, but rather contribute to dissolving the distinct status

of the group. It should create equal inclusion of the members in the political process by

guaranteeing that their capacity to influence political decisions remains unaffected by the

attributes that they happen to have. Quota can have such a group-cancelling logic. Their

purpose can be to dissolve the distinct political status of the group and thus, in the words of

Nancy Fraser (2014: 18), to ‘put the group out of business as a group’. By guaranteeing the

presence of certain groups in the legislature, quota can change the historically embedded

understanding that members of those groups are unfit to rule (Mansbridge 1999: 648-650).

Party-list quota may be more effective in the pursuit of group-cancellation than legislative

seat quota, as they guarantee political presence by integrating groups into political parties.

This integration underscores the diversity within marginalised ascriptive groups, as it

demonstrates that a wide variety of interests and perspectives represented by the political

parties can also be held by members of those group (cf. Htun 2004: 442). As such, quota,

and party-list quota in particular, can provide symbolic benefits to marginalised ascriptive

groups.24

To conclude, whereas the group-reinforcing logic behind group-conscious constituencies

sustains the goals of marginalised autonomous groups, it undermines the goals of

marginalised ascriptive groups by establishing the differences that those groups seek to

eliminate. It follows that if political theorists and electoral designers believe that

marginalised groups deserve a special representative status, then they should create group-

conscious constituencies only for marginalised autonomous groups.

5.4 objections: voice or exit?

Given that group-conscious electoral constituencies should only be attributed to

marginalised autonomous groups, the question remains whether they should be attributed

to all marginalised autonomous groups. In this Section, I address three objections according

to which some marginalised autonomous groups cannot or should not get group-conscious

constituencies.

The first objection holds that group-conscious constituencies can only be attributed to

geographically compact groups and, therefore, group-conscious constituencies cannot be

attributed to marginalised autonomous groups that are not geographically compact (cf.

Williams 1998: 205-206). The ob-

reproduction of and respect for group differences without oppression.’ As I have argued, fighting

marginalisation in the political process may sometimes consist in making social group differences matter less

for political inclusion and participation.

24Quota can also provide other symbolic benefits: By guaranteeing the presence of group members in the

legislature, they can enhance the de facto legitimacy of the political system, increase levels of trust in the

government, and create greater engagement in politics (Hayes and Hibbing 2017; Lawless 2004; Mansbridge

1999: 650-651)

jection is based on the assumption that group-conscious constituencies are geographically-

defined, making it impossible to construct such a constituency for geographically-dispersed

groups. It is for this reason that the U.S. Supreme Court stipulated, on the basis of Section 2

of the 1965 Voting Rights

Act, that a minority must be geographically compact in order to qualify for a race-conscious

constituency.

However, the desirability of defining group-conscious constituencies geographically can

itself be called into question. Geographic constituencies create a bias in the system in favour

of geographically-concentrated groups and geographically-defined group-conscious

constituencies would electorally disadvantage minorities that happen to reside in those

constituencies but do not share the group’s interests (Guinier 1994: 119-156; Young 2002:

151).

To prevent the disadvantages towards voters of other groups, groupconscious

constituencies could be created that solely consist of voters who self-identify as a member

of a particular group. For example, in New Zealand, voters can choose to register to vote

either in a general electoral constituency or in one of the dedicated Mãori constituencies.

This process of self-registering fits with the nature of marginalised autonomous groups, as

membership in these groups is defined by self-identification with the group and with others

on the basis of a common public culture.

Additionally, to decouple constituency boundaries from geographic boundaries, group

members should not be assigned to dedicated constituencies on the basis of geographic

location. In New Zealand, the voters who register for a Mãori electoral roll are divided over

the dedicated electoral constituencies on the basis of geographic location and, as a

consequence, those constituencies are still geographically-defined. Instead, group members

could be assigned to the dedicated constituencies on the basis of random selection. This

aligns with recent calls for replacing geographic constituencies with random constituencies,

which are more heterogeneous around ideology and group identity (Ciepley 2013; Rehfeld

2005). Group-conscious random constituencies are similarly more diverse with respect to

the many minorities within marginalised autonomous groups. If the boundaries of group-

conscious constituencies are randomly drawn, then there is no reason to think that those

constituencies can only be created for marginalised autonomous groups that are

geographically compact.

The second objection holds that some marginalised autonomous groups would prefer to

forgo group-conscious constituencies as their selfunderstanding would not align to the

group-reinforcing model of political inclusion. Some marginalised autonomous groups frame

their claims against the majority not as claims to group-based inclusion in shared legislative

institutions but rather as claims to exclusion from the political authority of the nation-state

(Williams 1998: 200; 2004: 93-94). These groups may fear that group representation rights

symbolise the group’s subordination to the nationstate and express a shared citizenship

status (Murphy 2008: 211; Williams 2004: 101, 113-114). Their worry is based on the

assumption that citizenship is grounded in a national or civic identity, to which the group’s

own identity is necessarily subordinated. However, this need not be the case. Instead,

citizenship has been defined in multicultural terms, implying that the political community

consists of multiple cultural groups, or as a shared fate, emphasising common interests and

experiences that bind individuals together despite belonging to different cultural groups

(Kymlicka 1995; Williams 2004: 103-109).

Relatedly, these groups may fear that group representation makes their case for self-

government rights, such as a right to secede, less politically viable. They may think that

enhanced political inclusion signals fair treatment and, thereby, renders the state more

legitimate (Williams 2004: 113-114). Their worry is based on the assumption that the

political viability of secession depends on dissatisfaction with the state. However, the

political will to secede can also be the result of successful mobilisation efforts. Enhanced

political representation may make it easier for political leaders to mobilise voters around the

group identity. As such, it could actually contribute to creating a willingness to secede.

Moreover, the political willingness to secede may also depend on the perceived capacity of

the group to do so. If the group already has an established semi-autonomous government,

federal representation can establish vital links between the federal government and this

semi-autonomous government, streamlining the process of obtaining necessary aid and

support from the federal government. The success of the semi-autonomous government

could alleviate the grievances of the group, stopping short of full independence, but it could

also fuel the desire for secession by demonstrating that full political autonomy is a realistic

and achievable option (Erk and Anderson 2009: 196-197).

The third objection holds that group-conscious constituencies would illegitimately

expand the political power of marginalised autonomous groups that already have self-

government rights within a federal state. As Will Kymlicka

(1995: 143) observes, the logical consequence of self-government is reduced

representation, not increased representation. The right to self-government is a

right against the authority of the federal government, not a right to share in the

exercise of that authority.

The objection is based on a particular notion of democratic legitimacy, according to which

all and only those who are subject to democratic decisions should be included in those

decisions. For groups with a right to self-government, this notion of democratic legitimacy is

taken to imply the right to representation on any body that can interpret or modify their

powers of self-government but not necessarily the right to representation in the federal

legislature. This is because the right to self-government entails exemptions from legislative

obligations that are imposed by the federal government. Where such exemptions are in

place, political representation in the federal legislature would empower the group to decide

on laws that do not apply to them. Political representation in the federal legislature would

thus illegitimately empower members of the group to decide on laws from which they have

been exempted because of their self-government rights (Kymlicka 1995: 142-143; Williams

2004: 102,109).

In my view, the objection exaggerates the conflict between group representation and

self-government rights, making it seem more profound than it actually is. Even if a group

enjoys self-government rights, its members will continue to be subject to the majority of

laws authorised by the federal government. This includes, for example, all laws resulting

from foreign policy, such as international trade agreements and climate agreements. It may

also include the laws that are clearly circumscribed to the lands surrounding the group’s

territory, as members of the group may spend some or all of their lives outside the territory

on which the group exercises self-government rights and thus on the territory that is under

the control of the federal government. For example, a rapidly growing number of indigenous

people in Canada live their lives outside the reserves that form the basis of indigenous self-

government (Williams 2004: 110). Moreover, the group’s own autonomous government will

experience a significant degree of interdependence and jurisdictional overlap with the

federal government. For example, if an indigenous government assumes jurisdiction over

health-policy, it is still dependent on the federal policy to attract and educate experts and

other hospital staff. Even if a group enjoys self-government rights, democratic legitimacy

thus requires that its members are included in decision-making at other levels of

government (Murphy 2008:

202-2023; Williams 2004: 110-111).

But what about the federal laws that actually do not apply to the members of a self-

governing group? The illegitimate empowerment of the members on those laws can be

effectively prevented by assigning representation rights on an issue-by-issue basis. In this

scenario, representatives would refrain from voting on legislation related to obligations from

which their constituents are exempted due to self-government rights (Kymlicka 1995: 126-

127, n.17; Williams 2004: 112). To implement this issue-specific voting scheme, it is crucial

to define clearly which representatives are authorised to vote on behalf of a self-governing

group. A dedicated electoral constituency for the group could therefore facilitate a solution

to a potential conflict between self-government rights and political representation.

5.5 concluding remarks

The arguments in this paper have important implications for one of the most contentious

debates over constituency design: Should black Americans cast their ballot in race-conscious

electoral constituencies? The answer to this question depends on one’s understanding of

black identity. The arguments in this chapter imply that African Americans (or Blacks in the

thick sense) should be attributed race-conscious constituencies, but that the broader group

of blacks, whose members share typically “black” physical attributes, should not be granted

such constituencies.

The group-reinforcing logic of race-conscious constituencies only aligns with the goal of

cultural self-determination. African Americans often understand their solidaric commitment

as a commitment to this goal. They tend to perceive their marginalisation as part of an effort

to assimilate them into the dominant “White” culture. Their struggle against marginalisation

tends to be (at least partly) a struggle to preserve, protect and promote their Black culture.

Race-conscious constituencies can help them in this struggle by institutionally recognising

their distinct political status and enabling them to authorise and hold to account their own

representatives.

Conversely, the group-reinforcing logic of race-conscious constituencies undermines the

goal of social empowerment. Blacks, understood in terms of a thin identity, often

understand their solidaric commitment as a commitment to this goal. Their struggle against

marginalisation tends to be a struggle to overcome or mitigate the structural constraints

that they experience on the basis of their inherited physical attributes. Race-conscious

constituencies would establish the differences that many black civil rights movements seek

to eliminate. They risk perpetuating the outsider status of black individuals and risk

impeding their efforts to be recognised as equal citizens with diverse identities.

In the U.S., race-conscious constituencies are not only reserved for marginalised

autonomous group. The Supreme Court stipulated, on the basis of Section 2 of the 1965

Voting Rights Act, that a group must be politically cohesive in order to qualify for a race-

conscious electoral constituency. The political cohesiveness of a group hinges on whether

voting patterns are racially polarised: Enough group members must have voted for the same

candidate in the past and this candidate must not have been the preferred candidate by the

White majority. Political cohesiveness may be a good indicator that group members share a

solidaric commitment, but it is insufficient to determine the content of this commitment.

Marginalised ascriptive groups can also be politically cohesive and even aggregates of two

minority groups can be politically cohesive. In fact, if a group does not even have to share

certain attributes, such as skin colour or ethnic origin, then any interest group or political

minority can have a claim to a race-conscious constituency (Grofman et al. 1992: 67-73).

The fact that race-conscious constituencies are often applied to groups for which it is the

“wrong” remedy, namely marginalised ascriptive groups, also reflects in the original purpose

of the Voting Rights Act. Its original purpose was to ‘encourage the transition to a society

where race no longer matters: a society where integration and color-blindness are not just

qualities to be proud of, but are simple facts of life.’ Race-conscious constituencies would

lead to more black legislators, elected in Southern States. This would decrease anti-black

sentiments among Southern whites and change the historically-embedded understanding

that skin colour signified talent and competence (Thernstrom 2009: 13-14, 214-224).

However, while race-conscious constituencies have ultimately led to more black legislators,

they have also established the differences that they sought to eliminate. For those who

continue to fight against the marginalisation of blacks, the argument of this chapter

demonstrates that the solution does not lie in further legal disputes over electoral

constituency boundaries. To ameliorate barriers to political participation based on skin

colour, black civil rights movements should seek political support for other measures, such

as racial party-list

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