Again, there are those who back a convention as a way of expressing their distrust for Congress and, indeed, their alienation from the entire political system. For many, budget balancing has become a code word to express resentment against the spenders, the bureaucrats, the government regulators, the welfare cheats. They are fed up and they aren't going to take it any more. Any stick to beat a dog.

The American Constitution is, in a sense, the victim of its own success. Veneration of the Constitution has resulted in an "amendment mania." Constitutional amendments are attractive to reformers and propagandists of all persuasions who want to give their cause status and glamour and place it beyond the reach of legislative challenge or later change of national mind.

A constitutional amendment is sought by the budget balancers because they want to invoke the prestige and the finality of constitutional language. But the surest way to drain the Constitution of its prestige and its finality is to make it a hostage in quarrels over explosive social issues. Peter McGrath's warning in a New Republic article in 1976 is eloquent and timely:

"Illegitimacy is the one thing that a constitution can never risk for it is the main - perhaps the only

agent of legitimacy for substantive policy decisions. This is why it is unwise for us to force our Constitution too far into the bitter controversies of the moment, such as those over busing and abortion. Each time we do so, we demystify it a little, which even in this secular age is not necessarily a good thing. The Constitution is an organism, and when you kick it, it kicks back, as Richard Nixon found out to his sorrow and surprise. But like any living thing, it can be worn down, burdened with work it was never made for."

A Study in the Invalidity of Memorialization
Rescission Resolutions

FRANK E. PACKARD1
Chicago

TWENTY-EIGHT state legislatures have passed resolutions memorializing the United States Congress to call a convention for the purpose of proposing an amendment to the Constitution of the United States limiting federal income tax rates at twenty-five per cent in peacetime. Similar action by four more state General Assemblies is necessary in order to have two-thirds of the states, or thirty-two states, as required by Article V of the Constitution before the Congress has to call the convention for the purpose of proposing an amendment to the Constitution imposing a twenty-five per cent ceiling on federal income tax rates in peacetime. Of the twentyeight state legislatures which adopted the foregoing resolutions those of Alabama, Illinois, Kentucky and Wisconsin' rescinded their passage of such resolutions. The resolutions of rescission subsequently adopted by the legislatures of these four states are null and void and are of no legal effect whatsoever. This can be proved conclusively by keeping in mind the federal amendatory process provided for in Article V as follows: "The congress, whenever twothirds of both houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the congress. .** (emphasis

1 Senior Partner in the Chicago Law Firm of Packard and Evans; member of the Bar of the Supreme Court of the State of Illinois and of the Bar of the Supreme Court of the United States.

Ala. Acts 1945, p. 155.

Ill. Laws 1945, p. 1797.

Ky. Acts 1946, p. 720.

Wis. Laws 1944-45, pp. 1126, 1127.

U. S. Const., Art. V.

mine) - and by comparing memorialization by states with proposal by the Congress and comparing the right of a state to withdraw a memorialization with the right of the Congress to withdraw a proposal. Such a right does not exist in either case according to Professor Lester Bernhardt Orfield, who in his text book The Amending of the Federal Constitution states as follows: "Suppose Congress should attempt to withdraw an amendment after it had been proposed. This question was directly raised in 1864 when Senator Anthony proposed to repeal the joint resolution submitting the Corwin amendment. . . . The practice has been to regard such a withdrawal as ineffectual. The theory apparently is that each affirmative step in the passage of an amendment is irrevocable... confusion would be introduced if Congress were permitted to retract its action." This view is shared by Professor Francis M. Burdick, who in his text book The Law of the American Constitution states that: "It seems safe to assert that Congress, having once submitted a proposed constitutional amendment to the States, cannot thereafter withdraw it from their consideration . . ." Professor Orfield continues as follows: "In such a case the analogy of a state legislature's attempting to withdraw its ratification of an amendment would seem apposite."

Additional proof that a state legislature does not have the legal right to rescind a memorialization resolution may be adduced by comparing the right of a state to withdraw a memorialization and the right of the Congress to withdraw a proposal on the one hand with the right of a state to withdraw a ratification of a proposed amendment to the Constitution on the other hand for as the Supreme Court of the United States declared in 1921 in the case of Dillon v. Gloss: “. . . proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor . . .” In the case of this additional comparison the answer is the same as a state cannot withdraw a ratification. Judge John Alexander Jameson in his text book A Treatise on Constitutional Conventions Their History, Powers and Modes of Proceeding states that: "The language of the constitution is, that amendments proposed by congress, in the mode prescribed, 'shall be valid to all intents and

? Orfield, Professor Lester Bernhardt, The Amending of the Federal Con stitution, The University of Michigan Press, Ann Arbor, Michigan, 1942, p. 52. Burdick, Professor Francis M., The Law of the American Constitution Its Origin and Development, G. P. Putnam's Sons, N. Y., 1922, p. 39. ⚫256 U. S. 368, 374, 375, 65 L. Ed. 994, 997, 41 S. Ct. 510, 512 (1921).

purposes, as part of this constitution, when ratified by the legisla tures of three fourths of the several states,' etc. By this language is conferred upon the states, by the national constitution, a special power; it is not a power belonging to them originally by virtue of rights reserved or otherwise. When exercised, as contemplated by by the constitution, by ratifying, it ceases to be a power, and any attempt to exercise it again must be a nullity. . . . When ratified by the legislature of a state, it will be final as to such state... When ratified all power is expended."1o Professor Walter F. Dodd, writing in the Yale Law Journal, states that: "... the view is incontrovertible, that a state, once having ratified, may not withdraw that ratification . . . to construe the Constitution otherwise, would be to permit great confusion in that no state in ratifying could know what the status of the amendment was if at the same time other states were permitted to withdraw. Of course, confusion would occur also in that it would be difficult to know when three-fourths of the states had ratified. . . . The function of ratification seems to be one which, when once done, is fully completed, and leaves no power whatever in the hands of the state legislature.”11

The Court of Appeals of Kentucky held in 1937 in the case of Wise v. Chandler that: "It is the prevailing . . . view of writers on the question that a resolution of ratification of an amendment to the Federal Constitution, whether adopted by the Legislature or a convention, is irrevocable. This conclusion seems inescapable as to the action of a convention called for the purpose of acting upon an amendment. When it has acted and adjourned, its power is exhausted. Since the 'powers and disabilities' of the two classes of representative assemblies mentioned in Article V are 'precisely the same,' when a Legislature, sitting, not as a lawmaking body, but as such an assembly, has acted upon a proposal for an amendment, it likewise has exhausted its powers in this connection."1 The Supreme Court of Kansas in the same year ruled in the case of Coleman v. Miller that: "It is generally agreed by lawyers, statesmen and publicists who have debated this question that a... ratification once given cannot be withdrawn... from historical precedents, it is... true that where a state has once ratified an amend

10 Jameson, Judge John Alexander, A Treatise on Constitutional Conventions - Their History, Powers and Modes of Proceeding, Callaghan and Co., Chicago, 1887, secs. 579, 581.

11 Dodd, Professor Walter F., "Amending the Federal Constitution," 30 Yale L. J. 321, 346 (1921).

13 270 Ky. 1, 8, 9, 108 S. W. 2d 1024, 1028 (1987).