Walker v. United States was the first lawsuit in history to directly address the question of whether Congress was required to obey the text of the Constitution and call a convention when the states applied which the evidence in the suit clearly showed they had, or whether, despite the language of the Constitution which the Founders termed "peremptory" Congress could ignore, or veto, the direct text of the Constitution and refuse to call such a convention even though the states had applied.
In Walker v. United States, an over-length brief citing over two hundred Supreme Court rulings favoring the position of the plaintiff, Bill Walker of Seattle, Washington, was presented in district court. The court refused to read the document and ultimately, citing Coleman v. Miller, 307 U.S. 433 (1939) established that under the court's political question doctrine, Congress was empowered to ignore or veto the direct text of the Constitution.
Following the court decision, an amicus brief was filed with the Supreme Court of the United States in the cases, McConnell v Federal Election Commission (02-1674 et al.). The purpose of the brief was twofold: (1) To serve as a practice exercise for a new Walker case intended to go to the Supreme Court and (2) to find out whether or not the assertions made in Walker v. United States were in fact true. This last point was accomplished simply by reversing the position that had been held in Walker v United States and agreeing with the political question doctrine set forth in the ruling in that lawsuit. Because of the Supreme Court Rules, the amicus was not allowed to be presented to the court because no attorney licensed to practice before the court would agree to be associated with the presentation made in the amicus. All attorneys indicated they could not accept the conclusions as true. The fact the amicus was never presented to the Court did not matter. Because the attorneys had reacted so violently, it was obvious by this reaction that what had been stated, that Congress possessed a veto and the effect of that veto was far-reaching, so much so, as to establish the possibility of a dictatorship in the government, that no attorney could accept it. Thus, if the conclusions of the amicus were false, then the opposite, that which had been asserted in Walker v. United States, must be true. It was time for a new lawsuit.
Based on new grounds of standing, Walker v Members of Congress was filed in 2004. The suit was significant in several ways. First, whereas Walker v. United States had sued Congress as a group, Walker v. Members of Congress sued the members as individuals. This meant that each member, was required under federal law, to individually determine their opposition to the lawsuit and request the United States represent them opposing the lawsuit. All members of Congress opposed the lawsuit by requesting the government represent them. Despite the language of the complaint which removed any member of Congress from the suit if he supported obeying the Constitution, no member of Congress chose to obey the Constitution. Thus, all members of Congress have publicly advocated they oppose obeying the direct text of the Constitution and support they having a veto of its text.
Secondly, it brought to the attention of the courts that such refusal was a violation of several criminal laws among them, 18 U.S.C. 1918, violation of oath of office by federal officials. The penalty for such violation is one year in prison and removal from office.
Finally, Walker v. Members of Congress was significant as it was the first lawsuit in history directly dealing with a convention call of Article V to be presented to the Supreme Court. In October, 2006 the court denied a writ of certiorari and thus refused to consider the case. However, the United States, under Supreme Court Rules, had already conceded as fact and law that it held that Congress could veto the text of the Constitution.
What was Gained by the Lawsuits?
At first glance it would appear that the two lawsuits were complete failures as the courts at every level denied the lawsuit and appeared not to have ruled at all. Nothing could be farther from the truth. Before the two lawsuits, Congress had hidden behind what are termed in the legal world, "latches" or the right to act as if something that is there is not there. Congress has for years simply done nothing regarding the convention call.
But the lawsuits changed that. True, they were not successful in achieving the desired end that was sought. But what they did do was force the courts to assign Congress a position, a stance, on the issue that previously before it had been able to avoid. The district court, in Walker v United States and again in Walker v. Members of Congress extended what is known as the Coleman doctrine, based on the lawsuit, Coleman v Miller, 307 U.S. 433 (1939) to include not only the amendatory process previously controlled by Congress as stipulated by Article V, but the convention method of amendment as well, thus giving Congress "exclusive" control of the entire amendatory process. Further, the courts (including the Supreme Court) endorsed the right of Congress to "ignore or veto the direct text of the Constitution" such that even if the Constitution stipulated that Congress was required to take an action (such as a convention call or hold an election, for example) it now possessed the power to refuse to do so under what the court termed, "the political question doctrine." Finally, by employing Coleman, the court allowed the Congress to take actions against the state legislatures such as was done during the civil war to compel the compliance in the ratification vote. The court did not state at any time that the veto of text was limited only to Article V. Indeed, as any such stipulation would be based on authority granted the court by the Constitution, and the court has allowed that such authority may be vetoed, it is logical to presume such limit could not be imposed. What we have now is a runaway Congress.
The lawsuits also established that the actions of Congress are, in fact, criminal in nature rather than simply a civil or political action. Thus, the refusal of the members of Congress to call a convention not only violates the Constitution, but is a criminal act as well.
Finally, based on the actions of the government taken at the Supreme Court, the lawsuits established that the above assertions are accepted by the government "as fact and law." The Congress now has no place to hide. Their veto and refusal to obey the Constitution is now a matter of public record. The fact they have criminal acts is a matter of public record. The fact that every member of Congress individually decided to oppose obeying the Constitution is now a public fact. Congress can no longer hide behind the walls of the Capitol Building on this issue.
It is for the above reasons that efforts will continue to compel Congress to call a convention for the most important reason of all---to preserve the Constitution itself. What value are constitutional guarantees of rights if the government does not have to obey them?
A copy of the pertinent parts of the Coleman decision can be read here. Copies of the criminal federal laws the members of Congress violated can be read here. Copy of the Supreme Court rule can be read here.
Original can be viewed here: http://article5.org/