Yesterday on the floor of the Senate, as some news outlets have reported, Sen. Arlen Specter said he is “now in the process of drafting legislation” that would “require the administration to take the program” of eavesdropping on our enemies when they communicate to and from the United States “to the Foreign Intelligence Surveillance Court.” (See here for a PDF of the Congressional Record of Specter’s remarks.)

I have been a Specter-watcher for some years now, and I have long since come to the conclusion that he is not a clear thinker on matters constitutional. But this embryonic proposal of his is a new low in befuddlement. Here is how he envisions it working:

“The Foreign Intelligence Surveillance Court ought to take a look at the program, make a determination from this day forward whether it is constitutional, and if it is constitutional, then they ought to, under the statute [Specter is drafting], report back to Congress with their determination as to whether it is constitutional.”

It seems that the senator is unaware of the venerable constitutional principle that the courts of the United States do not issue advisory opinions. That is, they do not entertain abstract questions about the constitutionality of policies in some general or hypothetical sense. One cannot obtain, from a court, any official opinion on a “what if we tried out this policy?” question, or a decision on a query like “how about if we had the following sort of situation involving a suspected al Qaeda agent . . . ?”

Courts adjudicate questions that are specific, not general; that are actual and concrete, not hypothetical and abstract. They decide real cases and controversies in which the rights of real persons are involved. Specter’s proposal flies in the face of over two centuries of judicial refusal to entertain requests for advisory opinions, and looks like an attempt to enlist the courts as adjuncts to legislative deliberation, if the quoted passage above can be made to bear any sense at all. The FISA court judges will surely rebuff this effort to turn them into Senate Judiciary Committee staffers.

In short, Arlen Specter plans to violate the separation of powers by this proposed referral of the overall problem of NSA surveillance to the FISA court. It is at once an invasion of the judiciary’s proper province, and an invitation to the courts to step outside their legitimate role under the Constitution. And that is not even to come to the other separation of powers issue here, the way Specter’s proposal treats the executive power.