The primary role of the courts is to adjudicate the laws passed by the legislature not to legislate. This basic principle is true from the lowest traffic court to the US Supreme Court. It is the role of those who make or keep the law to clarify it when necessary. The Court, instead of Congress has taken up this role of interpreting the Constitution. For minor issues allowing the Court to glean meaning is both reasonable and expedient. However, for interpretation of core principles, these questions should be referred to those who created or keep the law, these questions should be referred to Congress.
Congress should issue Constitutional Guidance to clarify how the Constitution should be interpreted. It is Congress, the people’s representatives that own the Constitution not the courts. Constitutional Guidance can only reinforce existing principles; they cannot introduce new principles. For example, one Constitutional Guiding Principle could be the requirement of the State to obtain a warrant prior to all searches. This protection should be absolute not diluted due to convenience or expediency. This Guidance would reinforce an existing principle. If congress attempted to mandate a 21 year old drinking age, this would be a misuse of a Constitutional Guidance.
The link between the Court and Congress needs to be strengthened. At least twice a year the Court should seek guidance from Congress. On cases where the Court made challenging positions they should seek affirmation. Congress could do one of three actions:
- Congress could do nothing and through silence affirm the courts position.
- Congress could issue a Guidance Statement confirming the Courts decision.
- Congress could rebut the Courts decision and issue a Guiding Statement the reverses the Courts judgment and thus overturning their decision.
Constitutional Guidance would require a ¾ majority of both houses, the same requirement to amend the Constitution. Guidance would be principle based. Guidance Statements would have the greatest authority of law only second to the Constitution itself. Strengthening the working relationship between the Courts and Congress would go a long way to re-establishing the balance of power.