In Article 3, Section 2, Clause 1 of the U.S. Constitution, several jurisdictions of federal courts are listed including "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority."

The question that comes to mind is whether or not it is possible for federal courts to apply the Constitution without infringing on Congress' exclusive legislative authority in the federal government? The relevant passage reads: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

For purposes of this article we define judge-made law as any ruling that impacts society at large (except in cases specifically and reversibly authorized by Congress), as opposed to a ruling that simply serves to resolve a dispute between a plaintiff and a defendant.

Under the above definition, a writ to prevent the enforcement of an act of Congress would constitute an infringement of Congress' legislative power. Similarly, if a federal court were to issue a writ mandating the acceptance by the government of a judge's own narrow interpretation of a broadly written constitutional clause, that also would constitute an infringement.

The answer to the question raised in paragraph 2 above is yes; it is possible for federal courts to apply the Constitution without infringing on the legislative power of Congress. The way that this could be done would be for Congress to mandate that all courts apply the Constitution according to the interpretation of a particular constitutional commentary. This commentary could either be a commentary that already exists (the U.S. Code, for example, embodies an interpretation of the Constitution [at least in part] as it is understood by Congress), or a commentary that could be created by a constitutional commission appointed by Congress.

Since such a commentary could be made to embody an understanding of the Constitution consistent with Congress' understanding, it would be possible for judges to make applications of the Constitution without infringing on the legislative powers of Congress or without imposing their own policy views on the public at large.

Does Congress have authority to mandate that courts apply the Constitution in accordance with a specific commentary?

The answer would appear to be yes. Article 1, Section 8, Clause 18 of the Constitution, empowers Congress to enact legislation regulating various departments of government including the courts. It would be consistent with this power for Congress to mandate the use of a particular constitutional commentary. For this law to be fully effective, it would probably be necessary for Congress to repeal the statutory authority of federal courts to issue writs for purposes of preventing the enforcement of Acts of Congress.

Is any participation by federal judges in the legislative process appropriate?

Judges should be able to participate in the legislative process by petitioning Congress to repeal laws or amend laws that are felt by judges to be inconsistent with the best reading of the Constitution.