@article{THESIS,
      recid = {12352},
      author = {Silver, Benjamin Gordon},
      title = {Constitutionalism and Publius' Critique of Popular  Government},
      publisher = {University of Chicago},
      school = {Ph.D.},
      address = {2024-06},
      number = {THESIS},
      pages = {338},
      abstract = {This dissertation takes up two related questions: What is  a constitution and why have one? It seeks answers in one of  the earliest and most comprehensive works of modern  constitutionalism: The Federalist. 

In fine, the  dissertation argues that for Publius—the pseudonymous  author of The Federalist—a constitution is a political  arrangement designed to constrain public power for the  purpose of defeating the problem of judging in one’s own  case. In light of the Roman law maxim nemo iudex in sua  causa, the dissertation refers to this problem as the “nemo  iudex problem.” Popular governments like republics are  always at risk of the nemo iudex problem. And the problem  is often fatal. In popular governments, every decision made  by the people is simultaneously a private one and a public  one. The temptation to create and enforce rules in a  self-serving manner proves too much for ordinary citizens  or their representatives. Public institutions come to serve  private ends, not public ones, and the republic  unravels.

The Federalist betrays a deep concern with the  nemo iudex problem. For starters, the nemo iudex problem  underlies the problem of faction in Number 10, which few  commentators have emphasized. But Publius’ attention to the  nemo iudex problem also drives his critiques of other  structural forms like the confederation of republics, the  mixed regime, and a pure separation of powers. His analysis  of each of these political structures points to the same  conclusion: Of their own force, none are able to secure  republican stability in the face of the nemo iudex problem.  For Publius, then, nascent America faces a dilemma: On one  hand, the new American regime must be strictly republican;  on the other, no known forms of republican rule have  successfully protected a republic from the nemo iudex  problem. 

After grounding this dilemma in the text, the  dissertation argues that The Federalist presents a novel  theory of constitutionalism to navigate the dilemma.  According to Publius, a constitution is a form of  government that combines three related but distinct  features. I call these features “founding,” “horizontal  monism,” and “vertical dualism.” Founding provides a point  in time at which all legitimate political authority comes  into existence. Horizontal monism channels all legitimate  political authority into a legal system. And vertical  dualism provides a structure to the legal system according  to which there are two levels of law. When these three  features coincide, a constitution obtains, and the  constitution can take certain actions for popular  majorities and officers off the table. Moreover, the  division between higher law and lower law entails, at least  in the republican context, that only supermajorities should  be empowered to make higher law. Decisions made by  supermajorities are less likely to aim at private concerns,  making higher law less likely to be destructively  manipulated. The dissertation concludes by discussing  Publius’ theory of constitutional enforcement, according to  which independent judges must be the guardians of the  constitution, and examining several limitations recognized  in Publius’ theory of constitutionalism.},
      url = {http://knowledge.uchicago.edu/record/12352},
      doi = {https://doi.org/10.6082/uchicago.12352},
}