Foedus and the Contestability of Borders: The Federalist Response to the Boundary Problem in Democratic Theory

Abstract In this article, I offer a federalist response to the boundary problem in democratic theory. According to the standard account of this problem, the people cannot decide who belongs to the people. The cosmopolitan response to the problem widens the demos to encompass mankind. The nationalist response, by contrast, maintains that statist bordering is necessary to maintain solidary bonds. Yet, as I argue, both responses assume that boundaries are in principle mutually exclusive and fixed inside/outside distinctions. I show how the compactual logic at the heart of federalism implies an inside/outside distinction which is neither mutually exclusive nor fixed. The federal demos is composed of constituent demoi, and its internal and external boundaries are not arbitrary but contingent. Their legitimacy rests on the fact that they can be contested and revised through democratic decision-making. Thus, federalism opens the possibility for bounding the demos/demoi through a democratically legitimate process.