The story begins at the Constitutional Convention of 1787, when a young and ambitious South Carolinian named Charles Pinckney submitted a plan for a new government. We don’t know exactly what was in Pinckney’s plan, as his original document has been lost to history. The Convention records, however, reveal that the framers barely discussed Pinckney’s plan and, at key points, rejected his views during the proceedings.
These documents were sealed for decades after ratification. This created a void in the historical record, which Pinckney entered. In 1818, while the government was gathering the Convention papers for publication, Pinckney submitted a document which he believed represented his original plan. It looked suspiciously like the American Constitution.
James Madison, one of the main authors of the Constitution, was “perplexed” when he saw Pinckney’s document. He was “fully convinced” that this was “not the plan originally presented to the convention by Mr. Pinckney”. Some of Pinckney’s text, Madison observed, was incredibly similar to the final text of the US Constitution, which has been thoroughly debated over the months. There was no way Pinckney could have anticipated these passages verbatim. Furthermore, Madison was quick to point out that many of the provisions were diametrically opposed to Pinckney’s well-known views. More tellingly, the draft proposed the direct election of federal representatives, whereas Pinckney had strongly urged that state legislatures choose them. Madison included a detailed rebuttal of Pinckney’s paper with the rest of her copious notes from the Convention. It was the distinguished 19th century equivalent of calling BS.
We will never know for sure why Pinckney concocted this fraud. Many scholars assume that he was trying to sell himself to history as the real father of the Constitution. Whatever Pinckney’s motivation, nearly every serious historian agrees that the 1818 document is a forgery. John Franklin Jameson, one of the first presidents of the American Historical Association, observed in 1903: “The so-called project has been so completely discredited that no learned person will use it as it stands as the basis of reasoning constitutional or historical”. Since then, the document has become, in the words of one modern-day scholar, “probably the most intractable constitutional scam in history.”
Pinckney’s fraud, however, proved irresistible to North Carolina legislators, who cited his 1818 document in their current attempt to control congressional elections.
Here’s why. The Elections Clause of the United States Constitution states that “the times, places, and manner” of elections to Congress “shall be prescribed in each State by the legislature thereof” (unless Congress elects to ” create or edit » rules). The framers understood that this authority was subject to the ordinary checks and balances found in state constitutions – for example, the governor’s veto and judicial review of the state. We know this, in part, because some framers themselves voted to approve state constitutions circumscribing the power of the legislature over congressional elections. We also know that the drafters – Madison foremost among them – deeply mistrusted the state legislatures.
North Carolina lawmakers, however, would have the Supreme Court believe that by assigning the administration of federal elections to state legislatures, the framers intended to sweep away traditional checks and balances – preventing the courts of States, governors and other authorities control partisan gerrymandering and voter suppression by the legislature.
And they point to Pinckney’s fraudulent document as evidence. The Pinckney Plan published in 1818 assigned the administration of congressional elections to “each state”. Proponents of the independent state legislature theory argue that if the framers deliberately changed the chosen election administrator from “the state” to “the legislature thereof”, they must have intended to eliminate from other state actors in the process.
This argument is based on a 204-year-old lie.
Whatever proposal Pinckney presented to the Convention, it is almost certain that it did not contain this provision. As mentioned, Pinckney adamantly opposed popular elections and, after losing that debate, derided them, calling them “the greatest stain on the constitution”. His fraud of 1818 tells us absolutely nothing of what the framers believed in 1787.
Nonetheless, North Carolina lawmakers claim to have discovered that our 200-year-old understanding of the Constitution’s meaning is flawed, that the framers actually intended to give state legislatures nearly unchecked power over elections in Congress. They claim that the Supreme Court must throw out all of our election rules and revamp our governance practice to achieve this goal.
This interpretation of the election clause is both reckless and patently ahistorical. It’s nonetheless surprising that the lawmakers’ Supreme Court brief describes Pinckney’s version of the election clause as the “first reference to regulating congressional elections,” even though it was clearly written 31 years after the curtain fell. on the Constitution. Convention and is the product of a well-established lie.
The Supreme Court debate is increasingly littered with bad stories. But if you are going to do originalism, at least use originals. Pinckney’s fraud of 1818 is simply not one.