Hollingsworth v. Virginia: The President’s Role in Constitutional Amendments

In Hollingsworth v. Virginia, 3 U.S. 378 (1798), the U.S. Supreme Court held that the Eleventh Amendment was valid, even though the President of the United States had not formally sanctioned it. While the rationale of the Court has been debated, the basic principle of the case — that the President’s approval is not required to amend the Constitution — remains good law.

Levi Hollingsworth owned shares in the Indiana Company, a land speculation business that was embroiled in a property dispute with the State of Virginia. After the U.S. Supreme Court ruled in Chisholm v. Georgia (1793) that a state could be sued in federal court by a citizen of another state, Hollingsworth replaced the original plaintiff in the case. In response to the Supreme Court ruling, lawmakers proposed the Eleventh Amendment, which was subsequently ratified by the states.

 Hollingsworth, who was represented by William Tilghman and William Rawle, argued that the Eleventh Amendment was invalid because the President had not approved it, noting: “Upon an inspection of the original roll, it appears that the amendment was never submitted to the President for his approbation.” His lawyers further maintained that the Constitutional amendment should not apply to his suit because it had been consummated prior to its ratification.

The two questions before the Supreme Court were whether the Eleventh Amendment was constitutional and whether the Eleventh Amendment only applied to future suits.

Constitutionality of the Eleventh Amendment in Hollingsworth v. Virginia

Under Article 5 of the Constitution, “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution.”  The document is silent with respect to the role of the President in amending the Constitution.

Nonetheless, Tilghman and Rawle argued that the President’s approval was necessary pursuant to the Presentment Clause, Article 1, Section 7, which states:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

 While the Attorney General acknowledged that the concurrence of the President is required in matters of infinitely less importance, such as ordinary legislation, he maintained that the Eleventh Amendment was properly proposed. He argued:

But has not the same course been pursued relative to all the other amendments that have been adopted? And the case of amendments is evidently a substantive act, unconnected with the ordinary business of legislation, and not within the policy, or terms, of investing the President with a qualified negative on the acts and resolutions of Congress.

Application of the Eleventh Amendment in Hollingsworth v. Virginia

 Hollingsworth’s attorneys further argued that the Eleventh Amendment only governed future cases. They asserted that applying the amendment retrospectively would run contrary to the Constitution’s prohibition of ex post facto laws.

The Attorney General disagreed. “The policy and rules, which in relation to ordinary acts of legislation, declare that no ex post facto law shall be passed, do not apply to the formation, or amendment, of a constitution,” he argued. “There can be no amendment of the constitution, indeed, which may not, in some respect, be called ex post facto; but the moment it is adopted, the power that it gives, or takes away, begins to operate, or ceases to exist.”

In a unanimous decision, the Supreme Court held that the Eleventh Amendment was properly enacted and binding on cases already pending prior to its ratification. “The amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state, or by citizens, or subjects, of any foreign state,” the opinion states.

The Court did not provide an explanation for its decision. The written opinion consists of the arguments raised by the Attorney General, as well as the following statement by Justice Samuel Chase: “There can, surely, be no necessity to answer that argument. 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.” Legal scholars further note that because all of the prior amendment had been approved without the approbation of the President, a full explanation of the Court’s decision was unnecessary.