New Powers Granted Congress
In Walker V United States
The ruling by Judge John C. Coughenour in Walker v United States granted Congress extraordinary new powers never envisioned by the Framers of the Constitution. The extent of these powers and their effect on the Constitution as a whole clearly demonstrate Judge Coughenour ruled on the question of exclusive control of the amendatory process in Walker v United States despite having dismissed the lawsuit.
The Framers stated there was to be no option on the question of a convention call by Congress, that the call is “peremptory.” Judge Coughenour ignored this clear intent the direct law of the Constitution which stated Congress “shall” call a convention and the clear intent of the Founders who said Congress shall have no option or discretion in calling a convention. By dismissing the lawsuit, Judge Coughenour asserted he had no authority to rule on this issue as the court lacked jurisdiction in the suit. He then ruled the political question doctrine expressed in Coleman gave Congress “exclusive” control of the convention call in spite of the clear intent of the Framers and the language of the law of the Constitution notwithstanding. Simply put Chief United States District Judge John C. Coughenour ignored court rules and procedure in order to make his ruling. Judge Coughenour dismissed the Walker lawsuit on the basis of lack of standing meaning the court lacked jurisdiction to issue a ruling. Having stated this Judge Coughenour then ruled on the issue.
As the issue before Judge Coughenour, whether Congress shall call a convention to propose amendments when mandated to do so by the Constitution, was absolute in proposition as well as an affirmative/negative in disposition, his order cannot be considered a dismissal. Instead, he ruled in favor of the Government and its claimed veto of the law of the Constitution. In applying Coleman v. Miller 307 U.S. 433 (1939) to determine control of the convention amendatory process was “the province of Congress,” a judicial finding never before asserted, Judge Coughenour obviously ruled on the issue before him.
His ruling repudiated the Founders’ intent, meaning and written language of the Constitution. Judge Coughenour did not rule Congress must call a convention to propose amendments if the states applied in sufficient numeric count to satisfy Article V of the Constitution as stated in Federalist 85 . Instead, despite the obligatory language of the Constitution and the clear intent of the Founders, the ruling affirmed Congress has a “right” to ignore the 567 applications from all fifty states and not call a convention, thus vetoing the meaning, intent, and law of the Constitution.
Using such words as “exclusive,” “completely” or “undivided” to describe congressional control of the Article V amendatory process i.e., the method whereby an amendment becomes part of the Constitution, as opposed to an amendment proposal submitted by Congress subservient to that process, the Court recognized no exceptions, such as the peremptory authority of the convention process as expressed in Federalist 85, or the states’ role in that process. Until Coleman, Supreme Court rulings recognized two autonomous modes of amendment. Coleman created a single mode, evidently intended to be the alpha and omega of national government amendatory authority.
As Coleman did not specifically address the convention amendatory process, Judge Coughenour was required extend Coleman , i.e., determine the convention process was under congressional control. In Walker v United States, the government referred to Coleman as an “analogous” decision rather than precedent or stare decisis as these terms would be unsuitable as no “rights are accrued” by denying the people their right to alter or abolish as guaranteed by the law of the Constitution; indeed this right is denied. Thus, even the government required a court ruling in order for the Coleman doctrine to be extended. Therefore, to extend Coleman to include the convention process, Judge Coughenour obviously was required to rule on the central question of congressional obligation. Moreover, several Supreme Court opinions favoring the convention amendatory process as autonomous of congressional dictate and obligating a call required nullification by Judge Coughenour in order to prevent a convention call thus mandating a ruling on his part. Judge Coughenour did this by simply ignoring them.
Nothing in Coleman precludes Judge Coughenour’s ruling that the amendatory process is “exclusively” controlled by Congress. Indeed, Coleman’s language stating “Congress possessing exclusive power over the amending process” entirely supports Judge Coughenour’s ruling. As Congress has “exclusive” power over the amendatory process, it is consistent to assert Congress is free to act in any manner it wishes in regards to that process. Hence, Congress can reject, or veto, any portion of that process at its political whim despite the fact such a veto was never intended by the Constitution Framers. Congress has vetoed the convention amendatory process for nearly a century by refusing to call a convention when Article V specifies they must do so. These facts establish the axiom Congress has the power to veto written clauses of the law of the Constitution if it desires where no such veto was intended. If Congress can veto the Constitution where the Founders did not intend such authority, then clearly Walker created new congressional powers.
While the judicial ruling sanctioning these new powers is a mere formality, nevertheless the formalization creates official government policy recognized by members of Congress and others who have issued public statements clearly reflecting a “right” to veto the law of the Constitution. As the veto authority claimed by Congress is not granted by sovereign authority of the Constitution, it follows such authority is derived from outside the Constitution. The only possible source is Congress’ own sovereignty giving it the power to decide whether to obey the meaning, intent, and written language of the Constitution. In short, with the consent of the judiciary, Congress now has a “right” to alter or abolish the Constitution, i.e., our form of government, a sovereign right previously claimed by the people since the time of the Declaration of Independence, but now firmly in the hands of the government.
As of 1911, long before Coleman or Walker , Congress asserted a “right” to veto the Constitution. Over the years Congress disregarded four Supreme Court rulings which specifically addressed the obligation of Congress to call a convention to propose amendments. These two cases endorse a veto power already claimed by Congress and extend total congressional dominance over the amendatory process thus altering the meaning, intent and law of the Constitution.
Judge Coughenour stated it was “unambiguously clear” the convention amendatory process, and hence, the decision whether to obey the constitutional clause compelling such a convention, was “the province of Congress.” As employed by the Court in Coleman , such words as “exclusive” or “undivided” were obviously intend to be the ultimate grant of unilateral congressional authority. Once granted by Court ruling, retraction of unrestrained authority is impossible, as any return is severed by the grant itself. By whatever reasoning the Court attempts to circumvent the word “exclusive”, for example, only justifies Congress’ circumvention of the word “shall.” “Shall” is the operative word employed by the Founders throughout the Constitution to compel absolute obligation or a particular action on the part of Congress or the Government, i.e., “Congress shall make no law…”. Indeed, both “exclusive” and “shall” normally are words absolute in meaning and intent providing no room for interpretation. However, Judge Coughenour’s ruling clearly holds while the word “exclusive” is absolute in meaning the word “shall” is not.
The Court in Coleman limited rulings on the amendatory process to advisory opinions only. Therefore, Congress can consider any ruling on that process, including rulings on its new powers, as advisory which it is free to accept or not. Thus, Congress is not obligated to heed any opinion by the court which seeks to restore the Founders’ original intent of compelling Congress to obey the law of the Constitution. Therefore, Coleman means the court requires Congress’ consent in order for their ruling to have binding effect and if Congress chooses not to consent, it is immune from that court ruling. Obviously, this means the Court in Coleman extended congressional sovereign immunity ad infinitum. Moreover, the District Court ruling affirming a “right” to veto clauses of the law of the Constitution under the “political question” doctrine is irreversible for the same reasons.
The Constitution describes itself as Supreme Law. The law obligating Congress to call a convention to propose amendments exists only in the Constitution. There are no federal statutes concerning any aspect of an Article V Convention. Courts deal with matters of law and can apply that law by court order. In the instance of Walker , the Constitution was the only law a court of law could address. Consequently, any modification of that law by court order must alter or amend the Constitution as its current language does not allow for discretion of any nature on the part of Congress. Clearly, Walker revised the meaning, intent and therefore the law of the Constitution as intended by the Founders. Thus, Walker amended the Constitution in spite of the amendment procedure prescribed in Article V . This ruling altered the unambiguous Framers’ intent from a peremptory, obligatory, and non-discretionary action on the part of “the national rulers”, a term obviously meant to include Congress, the Court and the government, to a non-peremptory, non-obligatory and entirely discretionary act entirely within “the province of Congress” to ignore at its political whim.
The law of the Constitution contains no savings or compulsion clause stating Congress or the Government must obey any part of it. Even if it did, Walker permits Congress and the Government to veto that law. There is no limitation in Judge Coughenour’s ruling granting Congress’ veto power or unilateral amendatory control of the meaning, intent, and law of the Constitution as the amendatory portion permits total control of the Constitution. Further, as a court order established Congress and the government may veto the law of the Constitution, all that can be asserted is these political bodies are obeying a “lawful” court order.
In obeying the “province of Congress” portion of Walker which affirms Congress’ veto power and amendatory control of the Constitution, this act of obedience by Congress validates Walker as a legal court ruling . If Walker is not a ruling, but instead is a dismissal then its conclusion, that the convention amendatory process is “the province of Congress,” is not legally binding as the ruling granting Congress a “right” to veto the law of the Constitution and “exclusively” control the amendatory process terminates as the court ruling creating the link between Coleman and the Article V Convention process no longer exists. A dismissal means the court states it has no jurisdiction, hence, no authority, to make a ruling. Judge Coughenour ruled in Walker that an Article V Convention is a “political question” but dismissed the lawsuit on the grounds of lack of jurisdiction due to lack of standing. If the court had no jurisdiction, logically, Congress must then obey the original meaning, intent, and law of the Constitution which has never been altered by any court ruling prior to Walker v United States. That law states Congress must issue a convention call upon application of two-thirds of the state legislatures which clearly it has not done. It is enforced by four Supreme Court rulings Judge Coughenour chose to ignore. Therefore, any doubt that Walker is a ruling despite the fact the district court admitted it had no jurisdiction to make such a ruling is defeated by the incontrovertible fact Congress has refused to call an Article V convention despite the overwhelming number of applications requiring it to do so. The number of applications is so great in fact that if they are examined all disingenuous terms and conditions the opponents of an Article V Convention have ever proposed are still satisfied leaving Congress no excuse whatsoever for not calling except for the fact they just don’t want to.
Walker addressed whether the government has a choice as to obeying meaning, intent, and law of the Constitution. Judge Coughenour ruled Congress and the government were not constrained to obey the law of the Constitution. Indeed, according to Judge Coughenour, these political bodies can veto or amend the Constitution at their political whim. Given the circumstances of Walker primarily being that the law involved is only contained in the Constitution, a dismissal of Walker on the basis of lack of standing to sue was impossible for several reasons. A dismissal by a court based on lack of standing can not nullify the original intent and law of the Constitution. Indeed, such action means the original intent and law of the Constitution remains intact as it has not been affected by any court action as the court, by its own admission lacks jurisdiction to alter the law.
Therefore, if Judge Coughenour only dismissed Walker on the basis of standing the lawsuit, he would have still been obligated to enforce the original intent of the law of the Constitution as it had not been effected by his court order. The Founders employed the word “peremptory” to describe the authority of the convention clause vis-à-vis congressional and government obligation. An act is not “peremptory” if it can be avoided by some means. Thus, the “peremptory” Article V convention clause must nullify standing, unless a court ruling nullifies that peremptory clause. If the court intended to enforce original intent, it would be bound to find Congress was obligated to call a convention regardless of standing. Only by repudiating the Framer’s original intent through a ruling, could the District Court prevent a convention call. Judge Coughenour therefore invoked Coleman and therefore ruled in Walker v United States, a ruling subsequently repeated in Walker v Members of Congress in order to alter the law of the Constitution and create an entirely new amendatory process controlled “exclusively” by a single political body . As the concept of separation of powers is so ingrained in the Constitution and in all forms of government in the United States, it is safe to assert that such a situation as now exists in the amendatory process of Article V with a single political body controlling all aspects of that process, has never existed in any form in the entire history of the United States except under the totalitarian government of the King of England.