Democratic founding: We the people and the others-A rejoinder to Mark Tushnet

In democratic theory, it goes without saying that people should establish their own political orders. However, the making of states or constitutions sometimes involves people with no intention of actually joining the new political order, as in the U.S.-led regime change of Afghanistan and Iraq or the UN administration of postconflict Kosovo and Timor-Leste. Could such policies be reconciled with the conviction that people should establish their own political orders? In this paper I will develop an affirmative answer to this question. The founding of a state is democratic-that is, constituted by the people subject to this foundational decision-when agreed to by as many persons as possible within and beyond the boundaries of the state to be founded. Hence, the very sense in which a state may have been democratically founded in the past presupposes an involvement of people beyond its current boundaries. Moreover, the moral values inherent in the practice of people constituting their own states do not imply restriction of power to the group of future citizens but protection of their autonomy, and, properly understood, the realization of this autonomy is contingent on people who will remain outside the state once founded.