A Study in the Invalidity of Memorialization Rescission Resolutions
Frank E. Packard · eYLS (Yale Law School) · 1952
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 5 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 twenty-eight state legislatures which adopted the foregoing resolutions those of Alabama, 1 Illinois, 2 Kentucky s and Wisconsin 4 rescinded their passage of such resolutions.The resolutions of rescission subsequently adopted by the legislatures of these four states are null and void and are of no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 (1) by keeping in mind the federal amendatory process provided for in Article 5 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. .."5. (emphasis mine)-and (2) 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: *Senior partner in the Chicago law firm of Packard and Evans; member of the Bars of the Supreme Court of the State of Ilinois and the Supreme Court of the United States. 1