On March 2, 1957, the Legislature of Idaho passed a resolution 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. On March 30, 1957, the Tennessee General Assembly followed suit. This meets the requirement of Article V of the Constitution that if two thirds of the states, or thirty-three in number, petition Congress to call the convention for the purpose of proposing an amendment to the Constitution, then Congress "shall” do so. The thirty-three states which have enacted such memorializations are: Alabama, Arkansas, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisi ana, Maine, Massachusetts, Michigan, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South

Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin and Wyoming.

Of the thirty-three state legislatures which adopted the foregoing resolu tions, those of Alabama, Arkansas, Illinois, Iowa, Kentucky, Rhode Island and Wisconsin have attempted to rescind their resolutions. This raises the first thorny point: Are the resolutions of rescission adopted by the legisla tures of these seven states of any legal effect whatsoever?

Some light on this question may be thrown by examining the federal amendatory process provided for in Article V. It is described in the Constitution as follows:

The Congress, whenever two thirds 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 con

stitution, when ratified by the legis

latures of three fourths of the several states, or by conventions in threefourths thereof, as the one or the other mode of the ratification may be proposed by the Congress1... [Italics added].

Obviously, an amendment which arises through memorialization by states is equated with an amendment which arises through proposal by the Congress. Similarly, the right of a state to withdraw a memorialization must be equated with the right of the Congress to withdraw a constitutional proposal. Such a right does not exist in either case according to Professor Lester Bernhardt Orfield. Professor Orfield 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.2

This view is shared by Professor Francis M. Burdick, who points out:

It seems safe to assert that Congress, having once submitted a proposed con. titutional amendment to the States,

1. U. S. Constitution. Article V.

2. Orfield. Lester Bernhardt. THE AMENDING OF THE FEDERAL CONSTITUTION (University of Michigan Press. Ann Arbor, Michigan. 1942, page 52.

cannot thereafter withdraw it from their consideration. . .

Professor Orfield continues as fol lows:

In such a case the analogy of a state legislature's attempting to withdraw its ratification of an amendment would seem apposite.

A perfect analogy exists in the 1951 decision of the Supreme Court of the United States that West Virginia could not withdraw from the Ohio River Valley Water Sanitation Compact. The Constitution provides that: "No State shall, without the Consent of Congress ... enter into any Agreement or Compact with another state." Thus, once a compact entered into between two or more states is approved by the Congress, the compact becomes a federal and multi-state matter entirely removed from the contingency of unilateral action on the part of one state.

In 1939, the same year that the income tax rate limitation movement began, the legislature of West Virginia ratified that state's adherence to the compact. Eight states entered into the compact-New York, Kentucky, Indiana, Ohio, Illinois, West Virginia, Pennsylvania and Virginia. The following year the compact received the necessary approval of the Congress."

In 1950, the Court of Appeals of West Virginia, in the case of State ex rel. Dyer v. Sims, held that the ratification of the compact by its legislature was unconstitutional and that, as a result thereof, West Virginia was not a member of the compact.

The following year in the case of State of West Virginia ex rel. Dyer v. Sims, the Supreme Court of the United States, speaking through Mr. Justice Frankfurter held that:

A compact is more than a supple device for dealing with interests confined within a region. That it is also a means of safeguarding the national interest is well illustrated in the Compact now under review... We are free to examine determinations of law by State courts in the limited field where a compact brings in issue the rights of other States and the United States... its [West Virginia's legislature may not be free, at any time, to withdraw the power delegated.

Mr. Justice Jackson concurring, declared that:

She [West Virginia] now attempts to read herself out of this interstate Compact... she may not... release herself from an interstate obligation. The legal consequences which flow from the formal participation in a compact consented to by Congress is a federal question before this Court... West Virginia should be estopped from repudiating her act... she is bound by the Compact.9

Additional proof that a state legis. lature does not have the legal right to rescind a memorialization resolution may be adduced by examining the right of a state to withdraw a ratification of a proposed amendment to the Constitution. Judge John Alexander Jameson indicates that:

The language of the Constitution is, that amendments proposed by Congress, in the mode prescribed, "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, 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 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.10

Professor Walter F. Dodd adds:

the view is incontrovertible, that a state, once having ratified, may not withdraw that ratification... to con. strue 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... The func tion of ratification seems to be one which, when 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:

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 power in this connection. 12

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 amendment it has no power thereafter to withdraw such ratification. To hold otherwise would make Article V of the Federal Constitution read that the amendment should be valid "when ratified by three fourths of the States, each adhering to its vote until three fourths of all the legislatures shall have voted to ratify.

when a proposed amendment has once been ratified the power to act on the proposed amendment ceases to exist. 13

The historical precedents here are more than ample. Some references to a few may be helpful.

Some Precedents...
Two Earlier Amendments

New Jersey and Ohio14 were among the states which ratified the proposed Fourteenth Amendment. 15 Subsequent. ly, New Jersey and Ohio16 took action to rescind their respective ratifications. However, after passage of ratifications by the necessary three fourths of the states, the Congress passed a resolution17 listing the ratifying states and

3. Burdick. Francis M.. THE LAW OF THE AMERICAN CONSTITUTION-ITS ORIGIN AND D VELOPMENT (G. P. Putnam's Sons, New York. 1922) page 39.

4. U.S. Constitution. Article 1, $10, clause 3. 5. W. Va. Acts 1939. c. 38.

6. 54 U. S. Stat. at L. 752.

7. 134 W. Va. 278 (1950).

8341 U. S. 22, 27, 28, 30; 71 S. Ct. 557, 500562 (1951).

9. 341 U. S. 22, 35, 36; 71 8. CL. 557, 504 (1951).

10. Jameson. Judge John Alexander. A THEATISE ON CONSTITUTIONAL CONVENTIONS-TE HISTORY, POWERS AND MODE OF PROCEEDING (Callaghan and Co.. Chicago, 1887) $4579. 581.

11. Dodd. Walter F. Amending the Federal Constitution. 30 YALE L. J. 221, 346 (1921). 12. Wise v. Chandler, 270 Ky. 1, 8, 9, 108 S. W. 2d 1024, 1028 (1937).

13. 146 Kan. 390, 400, 403, 71 P. 24 518, 594 525 (1937).

14. Ohio Laws 1867, pages 2320, 221. 15. 14 U. S. Stat. at 358.

16. 65 Ohio Laws 200.

17. 15 U. S. Stat. at L 709, 710.

included New Jersey and Ohio. The Congress transmitted such resolutions to the Department of State. Secretary of State William H. Seward, in pursuance of such a resolution and acting under statutory duty, issued his certificates declaring the Fourteenth Amendment an integral part of the Constitution. In his certification, Secretary Seward also listed the ratifying states and included New Jersey and Ohio.

New York was among the states that ratified the proposed Fifteenth Amendment. Subsequently, New York took action to rescind her ratification. However, after passage of ratifications by the requisite three fourths of the states, Secretary of State Hamilton Fish,

acting under statutory duty, issued his certification 19 declaring the Fifteenth Amendment an integral part of the Constitution. In his certification, Secretary of State Fish listed the ratifying states and included New York.

All of the foregoing would seem to indicate clearly that when a state adopts a resolution memorializing the Congress to call a convention for the purpose of proposing an amendment to the Constitution, that state is engaging na "federal function". That function places such activity within the excluave domain of federal jurisdiction and completely removes it from the state province and beyond the power of date withdrawal. The truth of this is manifest. The function of a state legislature in memorializing the Congress to call a convention for the purpose of proposing an amendment is derived wholly from the Constitution, just as is the function of the Congress in proposing an amendment or the function of a state legislature in ratifying a proposed amendment. The latter two functions have been judically identified ■"federal functions" totally without the realm of the states.

The Supreme Court of Kansas dedared in 1937 in the Coleman v. Miller case that:

It is settled beyond controversy that the function of a state legislature in ratifying a proposed amendment to the Constitution of the United States, like the function of Congress in proposing an amendment, is a federal function derived from the federal

Constitution; and it transcends any limitation sought to be imposed by the people of a state italics added]. The power to legislate in the enactment of the laws of a state is derived from the people of the state, but the power to ratify a proposed amendment to the federal constitution has its source in that instrument. The act of ratification by the state derives its authority from the federal Constitution, to which the state and its people alike have assented... If the legislature, in ratifying a proposed amendment, is performing a federal function, it would seem to follow that ratification is not an act of legislation in the proper sense of that term. It has been so - held.20

All of which would indicate that the attempts of the seven states to rescind their resolutions calling on Congress for a convention to propose an income tax limitation amendment are null and void.

A subsidiary problem arises with respect to two of the thirty-three states which have memorializations to Congress in connection with a limit on federal income tax rates. The governors of two of these states-Pennsylvania 21 in 1943 and Montana 22 in 1951-vetoed the resolutions. Do such vetoes have any force? In that connection, the following testimony at a panel hearing of the Joint Committee on the Economic Report of the Congress on January 31, 1952, may be of interest:

Alfred G. Buehler of the University of Pennsylvania declared that:

Pennsylvania is one of the states that passed the resolution, and Senator Martin, who was then Governor, vetoed the resolution... I think our Attorney General has given out the opinion unofficially that the veto would have no legal effect.23

The governor of a state has no power to veto either a state legislative resolution ratifying a proposed amendment to the United States Constitution or a state legislative resolution memori. alizing the Congress to call a convention for the purpose of proposing an amendment. The precedent for this principle lies in the rule that the

President of the United States has no power to vato a resolution of the Con

Moffett Studio

Frank E. Packard is now Execu

tive Vice President of the Western

Tax Council, Inc. A member of the North Dakota Bar, he served as Attorney General of North Dakota in 1918-1920. He was General and Tax Attorney of Standard Oil Company of Indiana from 1921 to 1946. He is a veteran of the Spanish-American War.

gress proposing an amendment to the Constitution.

This rule that the President's veto does not extend to congressional proposals of amendments but only to legislative acts was first laid down in 1798 by the Supreme Court of the United States in the case of Hollingsworth v. Virginia. In that case, the validity of the Eleventh Amendment was attacked on the ground that the resolution proposing it in 1794 had not been submitted to the President for his approval. Delivering the opinion of the Court, Mr. Justice Chase stated that:

The negative of the President applies only to the ordinary cases of legislation. He has nothing to do with the proposition, or adoption, of amendments to the Constitution.24

In 1887, Judge Alexander Jameson stated that the decision in Hollingsworth v. Virginia:

18. 15 U. S. Stat. at L 708, 709. 19. 16 U. S. Stat. at L. 1131, 1132.

20. 146 Kan. 390, 393, 383, 71 P. 24 518, 530 (1937)

21. Pa. Acts, June 7, 1943 (H.R. 50). Vetoed: Cong. Rec., Volume 8, page 8220

Mont, Acts, Feb., 1951 (H. J. Res. 4). Vetoed: Cong. Rec., Daily, March 16, 1951, page 2613.

23. Hearings, January, 1952, Economic Report of of the President, Joint Committee on

640 (1998).