Sunday, September 18, 2022
Quite appropriately, Moore v. Harper, the upcoming Supreme Court case that tests the validity of the “independent state legislature” theory, has set off alarm bells about the future of democracy in the United States. The theory holds that state legislatures hold exclusive authority to make decisions about congressional elections, unless overridden by Congress, based on the Constitution’s Elections Clause, Article I, Section 4, Clause 1. The Clause designates Congress and the states as holding responsibility to set the “Times, Places and Manner of holding Elections for Senators and Representatives.” Restrictions on state legislative authority imposed by a state constitution, including judicial enforcement of equal voting and non-discrimination mandates, the theory holds, must give way, rendering the state legislative determinations immune from judicial review, under the theory. When combined with Article II, Section 1, which assigns the manner for appointing presidential electors to state legislatures as well, the election denialism that has become a standard feature of the Trump political era could gain a permanent constitutionally blessed footing, potentially allowing state legislatures to overturn voters’ choices and name its majority party’s candidates the winners.
Today, however, one day after the Constitution’s 235th anniversary, my topic is not how the “independent state legislature” theory realizes Justice Robert Jackson’s fear that the courts would read the Constitution in such a rigid insensible way that it becomes a “suicide pact.” Instead, I want to focus on the North Carolina legislature’s use of history to support its argument as petitioner in the case. Given the originalist outlook that dominates the Supreme Court, it is unsurprising that parties appeal to history to support their desire outcome. What separates this brief from the usual attempt to invoke history, is its reliance on a widely debunked document to advance its cause.
The Petitioner’s opening brief tells the Court not to look at James Madison’s Virginia Plan for how to conduct federal elections because it is silent on the issue. Instead, it invokes the “alternative ‘Pinckney Plan,’” which contains remarkably similar language to what the Constitution says and is denominated in the brief as the “progenitor” of the Elections Clause. Because no other document that the Committee of Detail may have reviewed contained any plan similar in kind, the brief calls the Pinkney Plan confirmation of a deliberate choice to cede authority to the legislature.
The brief overlooks the fact that the original Pinckney Plan did not survive the Constitutional Convention and is lost to history. In a new article in Politico, Ethan Herenstein and Brian Palmer of the Brennan Center for Justice, explain that the “Pinkney Plan” is actually an 1818 draft by Charles Pinckney that was a revisionist attempt to claim more credit for the Constitution than Pinckney deserved. As Herenstein and Palmer put it, during the Constitutional Convention, the records show that “the framers hardly discussed Pinckney’s plan and, at key moments, rejected his views during the debates.” They go on to cite James Madison’s reaction as “perplexed” by the document Pinckney released in 1818 “because he was ‘perfectly confident’” the new document “was ‘not the draft originally presented to the convention by Mr. Pinckney.’”
Madison noted that the similarity of language to the Constitution’s final text could not have been part of a plan at the Convention because framers hammered out its wording through long running internal debates that would not have occurred if a plan had already spelled them out. Moreover, Pinckney’s well-known positions at the Convention were at odds with what he now claimed to have proposed. For example, at the Convention, Pinckney argued that state legislatures should elect members of the House, but his 1818 document purports to show he favored popular election.
Herenstein and Palmer assert that “nearly every serious historian agrees that the 1818 document is a fake.” They quote historian John Franklin Jameson’s statement in 1903 that the so-called draft was “so utterly discredited that no instructed person will use it as it stands as a basis for constitutional or historical reasoning.” Another researcher they quote called it “the most intractable constitutional con in history.”
Substantial additional support exists to doubt the veracity of the Pinckney Plan. Madison suggested that Pinckney rewrote his own plan weaving in passages from the Constitution, and that the intervention of 30 years made Pinckney’s memory of what was his and what was not flawed. Others put it less kindly. Historians, more than a century ago, described the document as a “pseudo draft” that “should be relegated to the depository of historical lies.” Clinton Rossiter’s respected history of the Constitutional Convention written in 1966 simply dubbed it a “fraudulent document.”
The reason the 1818 document exists is because Congress overrode the Framers’ own decision to keep their deliberations secret. President Monroe dispatched Secretary of State John Quincy Adams to assemble the records. While he found mention of a plan by Pinckney, no such document existed. He asked Pinckney for a copy, In Pinckney’s response, he claimed to have four or five drafts of the Plan but did not know which most accurately reflected his original plan and how much his re-writes changed the plan as his own views had changed over time. The Petitioner’s brief recounts none of this history, but instead treats the document as authoritative.
Every state has adopted the Model Rules of Professional Conduct, which requires candor to the tribunal. It prohibits a lawyer from making “a false statement of fact or law to a tribunal or fail[ing] to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” The lack of candor in this brief may violate the Rule.
Will there be consequences to the use of this document or a failure to suggest its questionable providence? I doubt it. Will a member of the Court or even a majority cite it as authoritative as the petitioner has? Unfortunately, that seems likely. In responding to the historical basis for the end-of-the-term abortion decision in Dobbs v. Jackson Women’s Health Org., the American Historical Association and the Organization of American Historians expressed dismay that their amicus brief’s description of the relevant history was not taken “seriously” and that the Court instead “adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than 30 years.” Similarly, in SCOTUSblog, Saul Cornell, a Fordham University historian, called the history relied upon by the majority in the Second Amendment case of New York State Rifle & Pistol Association v. Bruen, “a version of the past that is little more than an ideological fantasy, much of it invented by gun-rights advocates and their libertarian allies in the legal academy with the express purpose of bolstering litigation.”
Regardless of whether these assessments are over-the-top or shaded by a predisposition on the underlying issue, the concern that history is manipulated to achieve an end applies with greater force to the courts. Even as strong an advocate of originalism as Justice Scalia was worried that selective use of past events could predominate because “history, as much as any other interpretive method, leaves ample discretion to “loo[k] over the heads of the [crowd] for one’s friends.” The danger is not just that an important issue is settled by a skewed view of history. It is also that the re-written history appears in an authoritative text that now controls future precedent and even the nature of future issues as though settled.
If, for example, a majority of the Court were to rely on Charles Pinckney’s 1818 document as reflecting what the framers of the Constitution might have thought, not only could they reach the wrong result, it would create an even greater schism in this country on the essential form of our republic, reading the Constitution as mandating what would surely be a suicide pact. And when a future, indisputably valid election is overturned, the courts may have nothing to say about the legislative coup that took place.
More trivially, another consequence would be to achieve the project that Charles Pinckney set for himself: a revision of history that would make him the true father of the Constitution – and a title he did not desire as the Constitution’s grim reaper.
 Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).
 Ethan Herenstein and Brian Palmer, “Fraudulent Document Cited in Supreme Court Bid to Torch Election Law,” Politico Mag. (Sept. 15, 2022, available at https://www.politico.com/news/magazine/2022/09/15/fraudulent-document-supreme-court-bid-election-law-00056810.
 9 The Writings of James Madison 553-54 (Gaillard Hunt ed., 1910).
 Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA L. Rev. 421, 479 n.39 (2009).
 Id. (quoting Clinton Rossiter, 1787: The Grand Convention 331 n.* (1966)).
 Id. (citing Letter from Charles Pinckney to John Quincy Adams (Dec. 30, 1818), in 3 The Records of the Federal Convention of 1787, at 427-28 (Max Farrand ed., 1911).
 Model R. of Prof. Conduct 3.3.
 Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022).
 History, the Supreme Court, and Dobbs v. Jackson: Joint Statement from the American Historical Association and the Organization of American Historians (July 2022), available at https://www.historians.org/news-and-advocacy/aha-advocacy/history-the-supreme-court-and-dobbs-v-jackson-joint-statement-from-the-aha-and-the-oah-(july-2022).
 New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
 Saul Cornell, Cherry-picked history and ideology-driven outcomes: Bruen’s originalist distortions, SCOTUSblog (Jun. 27, 2022, 5:05 PM), https://www.scotusblog.com/2022/06/cherry-picked-history-and-ideology-driven-outcomes-bruens-originalist-distortions/.
 Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 377 (2012).