New York University Public Law and Legal Theory Working Papers


Non-Citizen Voting and the Extra-Constitutional Construction of the Polity

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International Journal of Constitutional Law, Vol. 8, pp. 39-40, 2010


The core substantive principle of democracy is that those subject to the law should have a voice in its formulation – a principle of consent realized primarily through the mechanism of the vote. Yet the populations of few (if any) nation-states consist solely of formal citizens; migration and transnational practices give rise to populations within states and bound by laws over which they have no direct control. In this essay, I consider a practice that can help address this potential democracy deficit – alien suffrage. I focus on three jurisdictions that have adopted some form of noncitizen voting in their histories – the United States, New Zealand, and Ireland – and consider what their practices suggest about the processes by which constitutional democracies construct their polities. Alien suffrage is not inconsistent with a strong sense of national identity nor does it necessarily diminish the cultural value of the vote. At the same time, the adoption of the practice does not necessarily indicate the existence of a robust regime of immigrants’ rights, nor is the franchise necessary to promote participation by noncitizens. Whether a society adopts alien suffrage, however, does reflect that regime's particular constitutional values and structures, as well as assumptions about the manner and pace at which the body politic ought to incorporate noncitizens.

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