The story begins at the 1787 Constitutional Convention, when an ambitious young man from South Carolina named Charles Pinckney laid out a plan for a new government. We don’t know exactly what was in Pinckney’s plan, because his original document has been lost to history. Convention records, however, reveal that the framers barely discussed Pinckney’s plan and, at key moments, rejected his views during the debates.
Those documents were sealed for decades after ratification. This created a void in the historical record, which Pinckney entered. In 1818, when the government was gathering the records of the Convention for publication, Pinckney produced a document that he claimed represented his original plan. It was uncannily similar to the United States Constitution.
James Madison, one of the main authors of the Constitution, that “perplexed” when he saw the Pinckney document. He was “perfectly sure” that it “was not the draft originally submitted to the convention by Mr. Pinckney.” Some of Pinckney’s text, Madison noted, was uncannily similar to the final text of the US Constitution, which had been painstakingly debated for months. There was no way Pinckney could have anticipated those passages word for word. Furthermore, Madison was quick to point out that many provisions were diametrically opposed to Pinckney’s well-known views. Most tellingly, the draft proposed direct election of federal representatives, while Pinckney had loudly insisted that state legislatures elect them. Madison included a detailed rebuttal of Pinckney’s paper along with the rest of his copious Convention notes. It was the 19th century gentile equivalent to calling BS.
We will never know for sure why Pinckney invented this fraud. Many scholars assume that he was trying to sell himself to history as the true father of the Constitution. However, whatever Pinckney’s motivation, almost all serious historians agree that the 1818 document is a fake. John Franklin Jameson, an early president of the American Historical Association, observed in 1903: “The so-called draft has been so discredited that no learned person will use it as it stands as a basis for constitutional or historical reasoning.” Since then, the document has become, in the words of a modern researcher“probably the most intractable constitutional swindle in history.”
However, the Pinckney fraud has proved irresistible to North Carolina lawmakers, who cited his 1818 paper in his current bid for control of congressional elections.
This is why. The Elections Clause of the US Constitution dictates that the “times, places, and manners” of congressional elections “shall be prescribed in each State by the Legislature thereof” (unless Congress decides to “make or modify” the rules). The framers understood this authority to be subject to the common checks and balances found in state constitutions, for example, the governor’s veto and state judicial review. We know this, in part, because some framers themselves voted to approve state constitutions circumscribe the power of the legislature over congressional elections. We also know that the architects—mainly Madison— deeply disturbed state legislatures.
However, North Carolina lawmakers wanted the Supreme Court to believe that by assigning federal election administration to state legislatures, the framers intended to do away with traditional checks and balances, preventing state courts from Governors and other authorities will monitor and manipulate the parties. 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 elected election administrator from “the state” to “the state legislature,” they must have intended to remove other state actors from the process.
That argument is based on a 204-year-old lie.
Whichever proposal Pinckney submitted to the Convention, it almost certainly did not contain this provision. As mentioned, Pinckney was adamantly opposed to popular elections, and after losing that debate, made fun of them as the “greatest stain on the constitution”. His 1818 fraud tells us absolutely nothing about what the redactors believed in 1787.
Yet North Carolina lawmakers say they have discovered that our 200-year-old understanding of the Constitution’s meaning is incorrect, that the framers actually intended to give state legislatures nearly unlimited power over congressional elections. . They assert that the Supreme Court must throw out all of our electoral rules and reorder our governing practice to accomplish that purpose.
East interpretation of the Elections Clause is reckless and evidently ahistorical. It is, however, surprising that the lawmakers’ brief to the Supreme Court describes Pinckney’s version of the Electoral Clause as the “earliest reference to the regulation of elections to Congress,” although it was clearly drafted 31 years after the curtain fell on the Constitutional Convention and is the product of a well-established falsehood.
The debate in the Supreme Court is increasingly plagued by bad stories. But if you’re going to do originalism, at least use originals. The Pinckney fraud of 1818 simply isn’t.