Institutionalizing the Human Right of the Undocumented to Be Domestic Political Participants

Abstract

In the previous chapter, I argued for the justifiability of undocumented disobedience. I also argued that decent peoples owe the undocumented disobedients immunity to deportation proceedings initiated specifically in response to their justifiable civilly disobedient acts. This is to acknowledge a moral right of undocumented migrants to participate in the domestic politics of the country in which they have no legal right to live, love, and work. Is there, however, a legal right that may be said to be owed to undocumented migrants in virtue of the justifiability of their disobedient protest? I argue next that there should be such a legal right. Nevertheless, this is not a right to become a citizen or a right to stay or not to be deported. Instead, it is a right of global undocumented migrants to demand that decent peoples formally recognize and protect them as political participants in shaping and influencing the sovereign decisions of the people of which they are not members. This requires embedding such a right to be a political participant, wherever one is, in the institutional arrangements of all decent societies, both democratic and hierarchical. In this respect, I argue that it is actually the key institutional feature of Rawls’ concept of the decent hierarchical society – the consultation procedure representing the interests of groups with differentially distributed rights – that provides the most appropriate forum for institutionalizing a human right to be a participant, wherever one is and wherever one is from. Indeed, such non-democratic procedures of consultation and representation may be adapted to the context of minimally democratic societies.