Introduction - Separation of Court and Politics

Abortion. Gun rights. The limits of the Commerce Clause. The meaning of "Cruel and Unusual."

These are only some of the political issues which the Supreme Court of the United States (the "Court"), in the process of applying the law to facts found by a trier of fact, has created national policy for. Going beyond the four corners of the case before them, the Court has frequently replaced State and Federal laws with its own policies presented as Constitutional interpretation. Sometimes these policies stand for decades, immune to democratic will and often in opposition to many democratic mandates, until changes within the body of the Court (and a Constitutional challenge) allows for the law of the land to finally align with the will of the governed. Sometimes We the People simply "get used to it" and give up hope of a better way.

It doesn't have to be this way. There is nothing in the United States Constitution which gives the Supreme Court final say on matters of Constitutional interpretation. The Court assumed this power for itself in 1803 in Marbury v. Madison, years after the Constitution was enacted. There was no democratic approval of this appropriation of power. What has been done can be undone. And even if the Constitution did grant this power to the Courts (not that I believe it does), the Constitution also embodied the Three-Fifths Compromise and allowed for slavery and the restriction of voting privileges based on sex. It was not a perfect document when drafted and still can be improved today.

The simple fact of the matter is that the plain text of the Constitution is silent on who gets final say on matters of interpretation. But as two-thirds of Congress is necessary to amend the Constitution, I think the Supreme Court and the Executive should recognize a two-thirds approval by Congress of a “Letter of Interpretation.” Congress could draft and approve its own opinion on a matter, endorse an existing minority position in a recent case as the “right” interpretation, or some other measure of their choosing. Ratification by the States would not be necessary as long as the plain text of the Constitution remains unchanged and the Interpretation is reasonably consistent with it.

As for applying the law to the facts of a particular case before them, the Courts would remain the organ of last resort. This has been the role of the Courts for centuries, before even the founding of the United States, and they are well suited to this role. But I do not believe that these unelected and life-term officials should be the body of last resort for questions which are fundamentally of a political nature. Congress is clearly the political body, not the Court. Congress is the natural home for the power of Final Interpretation.

Just Do It

The Constitution of the United States is a limited one. Any power not given to the Federal Government is retained by the States or the People. This is implicit in the Constitution itself and explicit in the 10th Amendment. Congress may not offer Letters of Interpretation (or take any other action) unless it has been given the power to do so.

Of course, the same is true for the Court.

The power to interpret the Constitution is as necessary as the power to amend it. The Constitution cannot be drafted to cover all possible cases, and no attempt to do so should be made since the result would be of hideous length and the future cannot be known anyway.

Therefore, someone must have the power to interpret the Constitution in light of changing circumstances and new facts. This is necessary to have a flexible and responsive Republic capable of adapting to inevitable change. For the last 205 years the Court has served this role, but this is not the ideal solution.

Constitutional Authority

Given that Interpretation is necessary and that the Government is limited, which branch has been granted the power to Interpret the Constitution?

The powers of Congress include:

To make Rules for the Government ...; and

To make all Laws which shall be necessary and proper for carrying into Execution ... all other Powers vested by this Constitution in the

Government of the United States...

The powers of the supreme Court include:

The judicial Power shall extend to all Cases ...; and

The Trial of all Crimes...

The legislative power, the power to enact laws and rules, rests with the Congress. The supreme Court holds the judicial power to hear cases of law and equity and try crimes. Further, the power to Amend the Constitution lies solely with the Congress and the Legislatures or Conventions of the States. Neither the Supreme Court nor the Executive play a role in the Amendment process. Intrinsic within the power to pass and amend laws and amend the Constitution must be the power to clarify the meaning of the written text; to say what the text means.

The Courts, when applying the laws and the Constitution during the trial of cases and crimes, rightfully try to interpret the legislative intent when passing a law. But if there is uncertainty as to the intent, why not just ask them?

Carpe Diem

The Congress has the power to pass and amend laws and to amend the Constitution. They must have the power to elaborate on what was said and offer guidance as to what they meant when they said it. In some cases the power to offer guidance has already been delegated to certain Administrative bodies such as the Securities and Exchange Commission, but for that power to be delegated it must first rest with the delegator.

Congress has the power to Interpret the Constitution. No amendment to the Constitution is necessary to grant them this power. If Congress in its wisdom disagrees with a matter of Constitutional interpretation offered by the Courts, or disagrees with announced policy, it should offer its own instead. It has the power. Use it if the democratic will is there.

Amendment

Although I do not believe that it is necessary to amend the Constitution for Congress to provide Final Interpretative guidance, the Supreme Court and/or the Executive may refuse to recognize a Congressional Interpretation as valid Constitutional law, prompting a Constitutional crisis. In such an event a Constitutional amendment may be necessary to settle the issue. I propose drafting below.

Amendment __ - Matters of Interpretation

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Interpretations to this Constitution, which shall be valid to all Intents and Purposes, as guidance for enforcing this Constitution; Provided that no Interpretation may stand at odds with the clear and plain reading of any provision of this Constitution.
No ex post facto Interpretation shall change the outcome of any Case subject to a final, non-appealable decision.

Government For the People

At the end of the day I offer this proposal because the government of the United States is at odds with itself and political reality. No matter where a person stands in the political spectrum, it is obvious that the supreme Court is of political interest. This should not be. The Courts are not political bodies, and to the extent possible should remain outside of politics. Their independence is crucial to the fair trial of cases and crimes, and it is threatened by the politicization of appointments. Let them try cases. Leave the politics to Congress.

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FAQ	Jun 25
Introduction	Jun 25