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.