Keeping It Complex With Philip Hunton, John Locke, and the United States Federal Judiciary: On the Merit of Murkiness in Separation of Powers Jurisprudence

Abstract

Abstract This article draws on the resources of a little-known political theorist, Philip Hunton, to explain the function of “murky” jurisprudence in the maintenance of separation of powers over time. In the era immediately before the drafting of the United States Constitution, separation of powers was a touted remedy to tyranny. But if government is thus moderated, a critical question arises: who will judge the precise contours of each institution's powers? This article addresses this longstanding question by comparing the solutions offered by Philip Hunton, John Locke, and the United States judiciary. I conclude that the judiciary's decried inability to clarify the limits of its own power is justified by Hunton's obscure explanation that separation of powers can only function so long as murkiness shrouds questions of ultimate institutional authority.