Who Are ‘the People’ in a People’s Constitutional Convention?

By David Owen, Professor of Social and Political Philosophy at University of Southampton (@rdavidowen, Academia.edu). You can find more posts by David here.

This post is a contribution to a debate at openDemocracy initiated by Stuart White and followed by Alan Renwick’s discussion of institutional designs for such a convention. David Owen’s contribution focuses on the question of who should be included in the People for these purposes.

There are a lot of questions raised by the idea of a People’s Constitutional Convention for the UK. The most fundamental, however, is ‘who are the People?’ for this purpose.

In Stuart White’s initial post and Alan Renwick’s acute reflections on the form of such a convention, they adopt the intuitive response to this question: the People are the (adult) citizens of the UK, which we might imagine to be those who can vote in General Elections. The rationale for this view is straightforward: a constitution sets the terms of a political association; it specifies the basic legal form of citizens’ political relationships to one another. This is a good start but I think for these purposes we need to construe the People a bit more widely.

Consider first that not all UK citizens can vote in General Elections, for example, citizens who have been resident abroad for more than 15 years or prisoners serving custodial sentences. Should they be able to participate? Well, notice first that a constitution applies to all citizens regardless of whether they are resident in the UK or not. Any changes to the constitution are binding on all citizens and change their relationships – so, for example, the result of a UK referendum on EU membership would be binding on all UK citizens whether or not they are resident in the UK, the EU or the wider world. Because a constitution sets the terms of their relationship, the People must include non-resident, as well as resident, citizens.[1]

If we turn to prisoners serving custodial sentences, we should note that even if we think that there may be both principled and pragmatic reasons for refusing voting rights in General Elections for some classes of those convicted of criminal offences, a constitutional convention is a different kind of event, one that stands in a much more intimate relationship to one’s standing as a citizen. The loss of voting rights in a General Election says that one is not a citizen in good standing; the loss of the right to participate in a constitutional convention says that one has no civic standing. So all citizens need to be included in terms of either having a vote for representatives or being in the population from which citizens selected by lot are chosen.

But a constitution doesn’t just set the terms on which citizens relate to one another, it also lays down the ground rules for:

  • What the public actors (aka the State) can and cannot legitimately do in relation to all those who live under its authority, that is, within its territorial jurisdiction.
  • What private actors (individual or corporate) can and cannot legitimately do to other persons in this territory.

Looked at from this angle, everyone who is a resident of (as opposed to a visitor to) the UK has an equally clear and vital interest in being protected from arbitrary exercises of public and private power. Indeed, given that immigrant non-citizens are typically much more exposed to exercises of arbitrary power by the State (perhaps most especially the kind of discretionary power with respect to immigrants currently lodged in the Home Office) and by private actors (perhaps most obviously unscrupulous employers), the case of the inclusion of non-citizen residents is overwhelming.[2] The People needs to encompass residents more generally, not just citizens.

What about non-resident non-citizens? This is a harder issue. It is fairly straightforward to see that this group should be able to make representations to a People’s Constitutional Convention since, in an increasingly interdependent world, their lives are likely to be shaped in part by our actions, but should they have representatives with the decision-making body? Some authors – Ian Shapiro and Robert Goodin, for example[3] – answer in the affirmative. What counts, on this view, is that your morally relevant interests are or may be affected. I am skeptical of this appeal to ‘the all affected interests principle’ as a criterion of democratic inclusion for the reason nicely put by Christopher McMahon:

The people who have a right, under democratic principles, to participate in a decision are not those who are affected by it but those whose actions are guided by it. That is, if the possession of [political] authority is a matter of having a right to direct the actions of some group, democracy is reflexive authority – the generation of authoritative directives by those who will be subject to them. The say in determining a decision that democracy confers is a say in determining what one will do or allow as a member of a group.

Citizens and residents are subject to the authority of the constitution, non-resident, non-citizens are not. This isn’t to say that there are not good moral and epistemic reasons to consult widely with outsiders, there surely are! It is just to say that they need not be included within the People. So non-resident non-citizens should be represented in some way, but probably should not have voting rights in a People’s Constitutional Convention.

Thus far I have treated the People in terms of existing adults, whether citizen or not, resident or not, but ‘the People’ denotes an intergenerational community that exists through time and the decisions, perhaps particularly constitutional decisions, that we make now will shape the world that future generations of UK inherit. If we think about children first as an existent future generation of adult citizens, it is clear first that they have important interests at stake and second that their lives, values and self-understandings as political agents will be significantly shaped by the constitutional character of the UK. Saying simply that they can change the constitution when they reach adulthood fails to acknowledge the fact that they have interests at stake now and that much of their political identity as citizens will already have been formed by then. For these reasons I think that the People needs to encompass the representation of children.

What of not yet existent future generations whom we can envisage only as an indeterminate abstract collective of the yet to be born? It is clear that they, like non-resident non-citizens, will be affected by our decisions – perhaps vitally in respect of whether we include significant environmental norms in any constitution – but should they be represented? In relevant ways, this case looks like the temporal equivalent of the spatial case of non-resident non-citizens and I am inclined to think that they should be treated in the same way, that is, as having rights to make representations to a People’s convention but not be represented within the decision-making People.

If this is cogent, the People for the purpose of a constitutional convention cannot be restricted simply to resident adult citizens. And this expansion of the People has implications for the design of a constitutional convention as well. In order to ensure that the relevant classes of persons are appropriately ‘present’, it is sensible to adopt a design that includes at least some element of structured random selection so that there are not only resident citizens present but also resident non-citizens and non-resident citizens as well as some element of inclusion of governmental representatives such as a Children’s Ombudsman. I therefore favour – in this respect at least – the approach used in Ireland’s recent convention, as discussed by Alan Renwick, as the best way forward for a People’s convention to accommodate an appropriately expansive understanding of the People.

[1] For a fuller discussion, see David Owen, ‘Transnational Citizenship and the Democratic State’ Critical Review of International Social and Political Philosophy, 14: 5, 2011, pages 641-663.

[2] For related observations on access to citizenship for residents, See David Owen (2013) ‘Citizenship and the marginalities of migrants’, Critical Review of International Social and Political Philosophy, 16 (3): 26-343 & (2014) ‘Republicanism and the Constitution of Migrant Statuses’

17 (1): 90-110.

[3] Ian Shapiro The Moral Foundations of Politics (New Haven, Yale University Press) pp.219-20 as well as Robert Goodin ‘Enfranchising All Affected Interests, And Its Alternatives’, Philosophy and Public Affairs 35 (1): 40-68.

Demos Problems and the European Union: An Exercise In Contextual Democratic Theory

by David Owen, Anali Hrvatskog Politološkog Društva (English), vol. 10, No. 1 (2013), pp 7-23.

Debates concerning the ‘democratic deficit’ have been a prevalent feature of the normative literature on the European Union, but rather less attention has been paid to ‘demos problems’ constructed by the normative ordering of the EU and what such problems reveal about the nature of democratic citizenship in the EU, the character of the EU as a normative order and the institutional character of the relationship between the constitution of the EU as a normative order and as a structure of political incentives. This article addresses this topic by focusing on one such ‘demos problem’.

Read this article now at Citizenship Observatory.

The Ethics of Immigration symposium: On Social Membership

By David Owen, Professor of Social and Political Philosophy at the University of Southampton.

Cross-posted at Crooked Timber.

Joe Carens’s The Ethics of Immigration is just the book that the growing field of the political theory of migration needed. Rich in argumentation, wide in its coverage, fluently and reflectively written, it will act as a locus of, and focus for, discussion and debate.

It is also a book with a distinctive methodological structure. In the first part, Carens presupposes ‘(1) the contemporary international order which divides the world into independent states with vast differences of freedom, security, and economic opportunity among them and (2) the conventional moral view on immigration, i.e., that despite these vast differences between states, each state is morally entitled to exercise considerable discretionary control over the admission of immigrants’ (p.10) and seeks to reconstruct how liberal democratic states should, in acting on their own deepest commitments, treat immigrants. In the second part, Carens focuses on admission and in the final two chapters drops this presumption of state control and re-articulates his well-known argument for open borders. In this commentary, I will focus on the first part of the book.

The arguments of the first part build to Carens’s theory of social membership (chapter 8) on which I’ll focus but we should preface this discussion by noting how they build to this theory. Carens is committed to a contextualist form of political theory that works from the ground up. The discussions of birthright citizenship, permanent residents, temporary worker, irregular migrants can be seen as the cases from which Carens is attempting to reconstruct a norm of social membership that will make coherent sense of our democratic practices of social and political membership. The norm that Carens reconstructs is ‘that living within the territorial boundaries of a state makes one a member of society, that this social membership gives rise to moral claims in relation to political community, and that these claims deepen over time.’ (p.158)

Why is noting the method important here? Consider that if we focus on a single example, for example, permanent residents, we might wonder why we need a theory of social membership. After all, the case for the political membership of permanent residents can be made on straightforwardly democratic lines by simply appealing to Robert Dahl’s ‘principle of full inclusion’: ‘The demos must include all adult members of the association except transients and persons proved to be mentally defective’ (1989: 129), where ‘adult members of the association’ refers to ‘all adults subject to the binding collective decisions of the association’ (1989: 120). However, this principle does not provide guidance with respect to the full range of cases that Carens considers nor does it offer guidance on issues of social, rather than political, membership, i.e., the kinds of social rights that whose who are not, or are not yet, citizens should be entitled. So we need to address Carens’s theory of social membership as a theory designed to make our judgments cohere across a range of cases. Perhaps the central controversy to which this theory gives rise is Carens insistence that it is the fact of social membership that matters and that law should be constrained by the acknowledgment of this fact. When the relevant threshold has been passed and the immigrant has become social member, then they should be entitled to access to citizenship. I want to focus on three aspects of this theory addressing, in turn, the idea of social membership, the idea of thresholds and the relationship to law.

One case that Carens is confronted with is the hermit or recluse who is resistant to making social connections. His practical response is to note that this is, at most, a very rare occurrence and therefore not a good basis for legal reasoning. His theoretical response is to draw an analogy with the case of a birthright citizen who is a recluse and argue that one cannot deny citizenship to the immigrant recluse without also denying it to the birthright citizen recluse. This is essentially the same response. Birthright citizenship is justifiable because it will typically be the case that children born to resident citizens form their lives through a rich web of social connections tied to the territorial society of the state. Carens’s argument is dependent on what is typically true of human beings. It is not that social connections are a necessary condition of entitlement to citizenship but that the well-founded expectation that human beings will typically form such social connections in their state of residence is a necessary condition for the justifiability of a general rule for granting citizenship in terms of the idea of social membership. To counter this argument, what is needed is either to show that the expectation is not well-founded or to show that the state has a justified basis for exemptions to the rule in the case of residents who do not form such connections.

Let me turn then to the idea of thresholds such that once a person has lived in a state for a given length of time, we can presume that they will typically have become a full social member and that entitlement to citizenship is the acknowledgment of this fact. My concern here is not with imagined hermits but rather with the presumption that the time and residence proxies function in the same way for different types of migrant. Consider the case of a short-term worker or student whose stay does not meet the threshold that Carens proposes for access to citizenship but whose work contract is then renewed or student status extended (e.g., for postgraduate work), even if following a brief period of absence from the state, such that the period of (more or less continuous) residence passes the threshold for the inclusion of habitual residents. Should we count the period of residence as starting again with the contract renewal, or as continuous across contracts? This question arises because, in contrast to the habitually resident non-citizen, the short-term worker is admitted as someone engaged on a project with a specified end and, then, re-admitted on another project with a specified end. Even if one accepts Carens’s theory of social membership, it does make a difference in that when the state admits ‘voluntary’ migrants for an open-ended period, the relationship between state and migrant is conceived as potentially permanent, whereas in the case of the short-term worker or student, each of their serial stays has a contractually agreed and specified purpose with an endpoint. The temporary migrant lives in society with the presumption that they will be required to leave; the habitual migrant with (or acquiring) permanent residency status lives in society with the presumption that they will not be required to leave. These distinct conditions of social life will almost inevitably affect the depth and extent of the ties to society that these differently situated migrants enjoy. (Consider by analogy the difference between ‘home’ friendships and ‘holiday’ friendships.) In this respect, I think that the stress of the social membership argument on a standard period of time has a tendency to suppress the point that time is being used as a generic proxy for typically expected social ties. The problem is that the adoption of a standard period of time as a generic proxy for typically expected social ties across different classes of migrant relies on the presupposition that the migrant’s relation to the society in which they reside is independent of the temporal and normative horizon in terms of which migrant’s experience, and reflect, on their presence in society. This is an empirical issue but I am sceptical as to the truth of this presupposition.

The preceding remarks operate internal to the frame of Carens’s theory and its presumption that law should be constrained to acknowledge the fact of social membership. But should it? One way of framing the issue is to consider the case of irregular migrants whom it might be charged acquire social membership but acquire it fraudulently on the basis of a residence to which they are not entitled. This is, I think, the point behind Michael Blake’s objection to Carens’s theory. I have sympathy for Blake’s objection, namely, that sometimes the normative force of the fact of social membership can be over-ridden by other legal and moral considerations but I think that the contrary claim holds as well, namely, that other moral and legal considerations can be over-ridden by the fact of social membership in virtue of the social connections that can typically be expected of such membership. To focus this point, consider whether there should be a statute of limitations with respect to irregular migrants who could be returned to a home state where they would not be subject to oppression or injustice, should there be a statute of limitations beyond which the right of the state to deport an irregular migrant ceases. We should note that it is widely believed that some rights are capable of ‘fading’ in their moral importance by virtue of the passage of time and by the sheer persistence of what was originally wrongful infringement (Waldron 1992). The pertinent question is, consequently, whether the right to determine whether the long-term irregular migrant is entitled to remain in the state is one such right. There are two reasons to suggest that it is, and so should be subject to a statute of limitations. The first is that the harm to the individual of being deported after long-term residence and having acquired the attendant social attachments is significantly greater than any harm done to society in allowing this individual to remain. This argument is, however, open to the objection that, although this may be true for each case taken singly, it leaves aside the general harm of irregular migration to the state as a legal and political order. The more important reason is the second, namely that precisely because we can typically expect that the irregular migrant will have forged social connections, the legitimate expectations of other ‘regular’ members of society whose life-plans centrally involve the presence of the long-term irregular migrant will also be frustrated and harmed by the act of deporting this migrant. This is most clearly the case when an irregular migrant has a ‘regular’ family. This does not entail that the long-term irregular migrant might not be subject to penalty, for example, an extension of the period of regular residence prior to any access to citizenship but it does provide reasons for restricting the deportation of long-term irregular migrants and allowing them to regularize their status.

Consideration of these three issues suggests that the principle of social membership is defensible, that social membership is immensely important but that the conditions of social membership as demarcated by time and residence can vary across types of immigrants – and that while it can, in principle, be over-ridden by considerations of morality and law, it can also be sufficiently important to constrain or over-ride such considerations.

Dahl, R. (1989) Democracy and its Critics (New Haven: Yale, 1989).
Waldron, J. (1992) ‘Superseding Historic Injustice’, Ethics, Vol. 103, No. 1, pp. 4-28.