Hollingsworth v. Virginia
|Hollingsworth v. Virginia|
|Decided February 14, 1798|
|Full case name||Levi Hollingsworth, et al. v. Virginia|
|Citations||3 U.S. 378 (more)|
|The President has no formal role in the ratification of Constitutional Amendments. The Eleventh Amendment governs cases both past and future.|
|U.S. Const. art. V, U.S. Const. amend. XI|
Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), was a case in which the United States Supreme Court ruled early in America's history that the President of the United States has no formal role in the process of amending the United States Constitution and that the Eleventh Amendment was binding on cases already pending prior to its ratification.
Levi Hollingsworth was a Pennsylvania merchant who owned shares in the Indiana Company, which was heavily involved in land speculation. The Indiana Company was seeking to resolve a land claim with the state of Virginia regarding land in what is now West Virginia. Hollingsworth replaced a previous plaintiff in the case, a Virginian named William Grayson. This replacement was made when the U.S. Supreme Court decided in Chisholm v. Georgia (1793) that a state could be sued in federal court by a citizen of another state; Hollingsworth was from another state, whereas Grayson was not. This derivative suit dragged on, and President John Adams announced on January 8, 1798 that the Eleventh Amendment was ratified. That Amendment overturned Chisholm.
So, the first main issue in the case became whether the Eleventh Amendment was valid, not having been presented to the President for approval or veto. The second main issue was whether the Eleventh Amendment applied retroactively to ongoing cases that had already begun before the Amendment was ratified.
The attorneys for Hollingsworth were William Tilghman and William Rawle. They argued for presidential involvement in the amendment process (and against the constitutionality of the Eleventh Amendment), saying: "Upon an inspection of the original roll, it appears that the amendment was never submitted to the President for his approbation." The proposed amendment had been laid before President George Washington merely "for transmission” to the states.
U.S. Attorney General Charles Lee took the position during oral argument in Hollingsworth that the Eleventh Amendment had been properly proposed, and Lee's argument was reproduced together with the opposing argument and the Court's decision in the case. Here is the exchange between Attorney General Lee and Associate Justice Chase during oral argument:
Lee, Attorney General.... Two objections are made: 1st, That the amendment has not been proposed in due form. 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. 2nd, That the amendment itself only applies to future suits.
*Chase, Justice. 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.
Decision, rationale, and later discussion by the Court
The Court decided unanimously that the Eleventh Amendment had been validly adopted. The Court also decided in Hollingsworth that it had no jurisdiction in the case, even though the case had arisen prior to ratification of the Eleventh Amendment. Here is the full text of the Court's opinion:
The Court, on the day succeeding the argument, delivered an unanimous opinion, that 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.
In oral argument, Justice Samuel Chase had stated that the president "has nothing to do with the proposition, or adoption, of amendments to the Constitution". The brief report by the reporter of decisions quotes Chase and the arguments of the opposing attorneys, but fails to explicitly give precise reasons for the Supreme Court's unanimous decision in this case, though it is known that none of the earlier amendments had been presented to the president for approbation either.
Article V of the Constitution says: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution". Congress thus may propose an amendment if there is a two-thirds vote of both houses of Congress, without waiting for a constitutional convention or a presidential signature or anything else, according to the decision in Hollingsworth. The clarity of this language in Article V has been cited as a reason why the Court did not think that further explanation of its decision was needed.
Although the Presentment Clause generally gives the president veto power, the ancient interpretive principle that the specific governs the general (generalia specialibus non derogant) is applicable to the specific circumstance of a constitutional amendment. Article V requires Congress to propose Amendments, "whenever" it deems necessary by the same supermajority specified in the Presentment Clause, and therefore Congress has always treated the latter vote as unnecessary and inapplicable.
An exception from the Presentment Clauses was ratified in Hollingsworth v. Virginia, 3 Dall. 378 (1798). There the Court held Presidential approval was unnecessary for a proposed constitutional amendment which had passed both Houses of Congress by the requisite two-thirds majority. See U.S. Const., Art. V…. We also note that the Court's holding in Hollingsworth, supra, that a resolution proposing an amendment to the Constitution need not be presented to the President, is subject to two alternative protections. First, a constitutional amendment must command the votes of two-thirds of each House. Second, three-fourths of the states must ratify any amendment.
Instance of judicial review
Hollingsworth was one of the earliest instances of judicial review by the U.S. Supreme Court. In this case, the Court decided whether the Eleventh Amendment would be upheld or stricken down. Hollingsworth also may mark the first time that the Court struck down a federal law as unconstitutional, assuming that the Court in Hollingsworth was reading the Eleventh Amendment retroactively to invalidate part of the Judiciary Act of 1789.
However, there was an even earlier case, U.S. v. Todd (1794), that also may have held an act of Congress unconstitutional. In 1800, Justice Chase implied that neither Hollingsworth nor Todd involved any unconstitutional federal statute:
It is indeed a general opinion—it is expressly admitted by all this bar and some of the judges have, individually in the circuits decided, that the Supreme Court can declare an act of Congress to be unconstitutional, and therefore invalid, but there is no adjudication of the Supreme Court itself upon the point.
Assuming that Chase was correct, then perhaps Marbury v. Madison was the first such case. Indeed, Walter Dellinger has written that the first judicial review of a constitutional amendment (in Hollingsworth) pre-dated the first invalidation of federal legislation (in Marbury).
Alternative theory about the case
In 2005, an article in the Texas Law Review by Seth B. Tillman theorized that it may be incorrect to interpret Hollingsworth as holding that constitutional amendment resolutions need not be presented to the President for possible veto. This notwithstanding that the Court—in decisions issued in the twentieth century—itself has adopted that interpretation of its prior decision in Hollingsworth. Tillman did not suggest that Hollingsworth was wrongly decided, but only that its scope (as originally understood) might have been narrower than commonly thought today.
Tillman noted that Justice Chase's statement was not his official opinion, but merely a remark from the bench at oral argument, and therefore the failure of the other justices to contradict him should not elevate the status of Chase's remark to an official opinion by either him or by the Court. Moreover, Tillman argued that there were several other grounds potentially explaining the Court's decision, including: that the proposed Eleventh Amendment was in fact delivered to George Washington, he declined to sign it, and Washington's non-signature did not amount to a pocket veto because Congress remained in session. If this latter explanation explains the Court's obscure language in its opinion, then the Court only decided that on the particular facts actually before it the Eleventh Amendment was valid.
Other explanations for the Hollingsworth holding are also possible. For example, Tillman also noted Chase's specific language at oral argument. Chase took the position that President played no role in regard to the "proposition ... or adoption" of amendments. But the Court's actual opinion only used the "adoption" language, not the "proposition" language used by Chase at oral argument. This might lead to the conclusion that the Court was of the view that once 3/4 of the states had ratified a proposed amendment (i.e., how the amendment was "adopted"), then it was part of the Constitution without respect to potential defects in how an amendment (such as the Eleventh Amendment) was proposed.
During oral argument in Hollingsworth, U.S. Attorney General Lee advanced two independent arguments in support of the validity of the Eleventh Amendment (leaving aside his discussion of the issue of whether or not the amendment only had prospective effect). He argued that it was valid because presentment to the president was not necessary. Lee also argued that "the amendment was in due form" because it was enacted using the same procedures which were used in enacting the Bill of Rights. 3 U.S. 381.
Lee did not advance the alternative theory that the Eleventh Amendment was valid because George Washington declined to veto it. If the Court adopted this position in Hollingsworth, which was one of the theories presented in the 2005 Texas Law Review article, then the Court silently based its decision in regard to a matter of law (not fact) on arguments which were not presented to it by one of the parties. On the other hand, Lee's "due form" argument is consistent with the text of the Court's decision. And once Chase had opened discussion distinguishing the proposition of amendments (by Congress) and their adoption (by the States), the parties were on notice that these issues were important to the Court. The parties had an opportunity to speak to these issues at oral argument. If they chose to neglect them, the Court could still address them, and arguably the Court did so in its decision.
Historian David E. Kyvig has argued that the Supreme Court in Hollingsworth adopted the position put forward by Attorney General Lee, although Kyvig published that argument several years prior to the 2005 article in the Texas Law Review. Kyvig suggests that the Court adopted Lee's position. However, Kyvig does not explain which of Lee's specific arguments were adopted by the Court or how the language in the Court's opinion explains the primary issue in the case: the scope of Article V and the scope of Article I, Section 7, Clause 3 and the interplay (if any) between the two provisions.
- Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798).
- Marcus, Maeva. Suits Against States, pp. 274-289 (Columbia U. Press 1994).
- Tillman, Seth. "A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned", Texas Law Review, Vol. 83, pg 1265, 1300 n. 78 (2005).
- Hollingsworth v. Virginia, 3 U.S. 378 (1798). Notice that Chase did not completely rule out a presidential role in the amendment process, but only with respect to proposal and adoption. Presidents have often transmitted proposed amendments to states, and announced to Congress when ratification has been completed. Likewise, Chase did not exclude the possibility of a presidential veto with regard to the Article V "call" for a constitutional convention, although he did not affirm it either. See Caplan, Russell. Constitutional Brinksmanship, p. 135 (Oxford U. Press 1988).
- Currie, David. "The Twelfth Amendment" in Unintended Consequences of Constitutional Amendment, pp. 89-89 (David Kyvig ed., U. Georgia Press, 2000). Many years later, President James Buchanan and also President Abraham Lincoln would unnecessarily sign proposed amendments. See Vorenberg, Michael. Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment, p. 210 (Cambridge U. Press, 2001).
- Bellis, M. "The illusion of clarity" in Obscurity and Clarity in the Law: Prospects and Challenges, pp. 207-208 (Wagner and Cacciaguidi-Fahy eds., Ashgate Publishing, 2008).
- See Black, Charles. "Amending the Constitution: A Letter to a Congressman", Yale Law Review, Vol. 82, p. 209 (1972). Critics of the Hollingsworth decision, such as Professor Black, have analyzed the "two thirds of both houses" requirement in isolation rather than in the context of complementary language (e.g. the mandatory word "shall" and the inclusive word "whenever"), whereas supporters of the Hollingsworth decision have criticized such analysis as the "imaginings of professors". Bellis, M. "The illusion of clarity" in Obscurity and Clarity in the Law: Prospects and Challenges, pp. 207-208 (Wagner and Cacciaguidi-Fahy eds., Ashgate Publishing, 2008)
- INS v. Chadha, 462 U.S. 919 (1983) (opinion full text). The Court had said basically the same thing in Hawke v. Smith, 253 U.S. 221 (1920).
- Carter, Stephen. "The Constitutionality of the War Powers Resolution", Virginia Law Review, Vol. 70, . 101, 130 (1984); Sopan Joshi, Note, The Presidential Role in the Constitutional Amendment Process, 107 Nw. U. L. Rev. 963[dead link] (2013) (arguing--on originalist grounds--that Hollingsworth was wrongly decided).
- Treanor, William. “Judicial Review Before Marbury”, 58 Stanford Law Review 455, 547 (2005).
- Ritz, Wilfred. "United States v. Yale Todd (U.S. 1794)", 15 Washington and Lee Law Review 220 (1958).
- Cooper v. Telfair, 4 U.S. 14 (1800). Justice Chase did not join the Court until 1796, and so was not on the Court when Todd was decided.
- Dellinger, Walter. “The legitimacy of constitutional change: Rethinking the Amendment Process”, 97 Harvard Law Review 386, 403 (1983).
- Thomas, Kenneth. The Constitution of the United States of America: Analysis and Interpretation, p. 4 (Government Printing Office 2011).
- Kyvig, David. Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995, p. 114 (1996).