A controversial election theory at the Supreme Court is tied to a disputed document

By Hansi Lo Wang

Published November 3, 2022 at 5:01 AM EDT

A disputed document by one of the delegates at the Constitutional Convention of 1787, depicted here in a painting by Thomas Rossiter, has been cited in a Supreme Court case about a once-fringe legal theory that could reshape federal elections.

In their bid to promote a once-fringe legal theory that could upend election laws across the country, Republican state lawmakers in North Carolina have turned to a document whose reliability has long been under serious doubt.

The North Carolina Republicans are claiming in a court filing for their U.S. Supreme Court case that the words of Charles Pinckney — a delegate from South Carolina who presented a plan of government during the Constitutional Convention of 1787 — help prove that the framers intended to give state lawmakers almost unfettered authority over how elections for Congress are run without any checks or balances from state courts or state constitutions.

But 235 years after the historic convention was held in Philadelphia under a rule of secrecy, no undisputed record of what's known as the Pinckney Plan has been found, leaving exactly what he presented and how much influence it had on the drafting of the U.S. Constitution to be an enduring mystery of the country's founding.

The Pinckney Plan has been lost since the Constitutional Convention

The storied gathering that gave birth to the country's founding document was not a well-documented event.

So in 1818, when then-Secretary of State John Quincy Adams was tasked to oversee the first publishing of the Constitutional Convention's official records, the future U.S. president had to write to Pinckney to ask for a copy of the plan he had proposed.

Pinckney replied to Adams that he had "several rough draughts" and "at the distance of nearly thirty two Years it is impossible for me now to say which of the 4 or 5 draughts I have was the one but enclosed I send you the one I believe was it."

That one was published as the Pinckney Plan, sparking debates about Pinckney's actual contributions to the Constitution that have continued into the 21st century.

There have long been suspicions about the 1818 version of the Pinckney Plan

Former President James Madison — who is known to have taken the most comprehensive notes in 1787 as a convention delegate — had suspicions that the version of the plan sent to Adams in 1818 did not accurately represent what Pinckney proposed at the meetings.

In the appendix of his papers published in 1840, Madison noted that "it was apparent that considerable error had crept into the paper" after comparing the 1818 version of the plan with the Constitution's drafts and final version, along with notes about Pinckney's remarks.

Multiple historians have also noted that the 1818 version of the plan shared the exact same wording as numerous lines from the report of the convention's Committee of Detail, a group of five delegates elected to prepare a working draft of the Constitution based on what all of the delegates had already discussed.

"Pinckney was not a modest man, and he later claimed that he was the most influential delegate at the convention. Very few other people looking back had that same opinion," says Ed Larson, a professor of history and law at Pepperdine University who's written several books about the Constitutional Convention. "When he pulled together his ideas later for the historical record, he could have altered what he provided."

Some scholars, however, have defended the 1818 version of the Pinckney Plan

Still, the 1818 version of the Pinckney Plan has been cited by other scholars and even in Supreme Court decisions that have considered it a draft of the Constitution, explains Lynn Uzzell, a visiting assistant professor of politics at Washington and Lee University who is writing a book on the Pinckney Plan.

In a recent article published in St. Mary's Law Journal, Uzzell called the complicated tangle of Pinckney's claims and unreliable sources about his plan "probably the most intractable constitutional con in history."

Over the years, the surfacing of other historical documents — including the handwritten notes of James Wilson, a convention delegate on the Committee of Detail — has helped spur different interpretations of the history surrounding the Pinckney Plan.

"There is a strong cadre of scholars who have attempted to defend his reputation," Uzzell says. "For the last 70 years, we have lived with the corpse of the 1818 Pinckney Plan alive and dwelling amongst us."

That cadre included Sidney Ulmer, a political science professor who — in a 1957 article titled "Charles Pinckney: Father of the Constitution?" — argued that Madison's "objectivity as a critic" of the 1818 version of the Pinckney Plan "is corrupted beyond repair by his personal interest in every aspect of the subject."

So what exactly does the Pinckney Plan have to do with the North Carolina Republicans' case at the Supreme Court?

Trying to cast aside Madison's and others' skepticism of the 1818 version of the Pinckney Plan, North Carolina Republicans are now arguing in Moore v. Harper — their redistricting case at the Supreme Court — that the document is part of a trail of evidence suggesting the Committee of Detail specifically intended to designate legislatures as the only state entity to have control over congressional elections.

The GOP state lawmakers are using that interpretation to help build their case in support of what's known as the independent state legislature theory, which — if endorsed by the country's highest court — could upend election laws around the U.S., curtail the role of state courts and supercharge the power of state lawmakers over federal elections.

The Moore case centers on the Elections Clause of the U.S. Constitution, which says:

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

The North Carolina Republicans argue in their court filing that "the earliest draft" of the Elections Clause can be found in the 1818 version of the Pinckney Plan, which says:

"Each State shall prescribe the time & manner of holding Elections by the People for the house of Delegates & the House of Delegates shall be the judges of the Elections returns & Qualifications of their members."

The Committee of Detail — claims the lawmakers' filing, which points to handwritten edits to a draft constitution — "deliberately changed the Constitution's language to specify that state legislatures were to exercise that power, not any other state entity and not the State as a whole."

The lead attorney for the North Carolina Republicans, David Thompson, did not make himself available for an interview with NPR.

But in a written statement, Thompson points out that in 2015, Chief Justice John Roberts quoted from the 1818 version of the Pinckney Plan in a dissenting opinion for an Arizona redistricting case. Roberts referred to language from the plan as the "first known draft" of the Elections Clause to appear at the Constitutional Convention. The chief justice wrote that a revision to that "draft" by the Committee of Detail to include a reference to state legislatures "indicates that the Framers thought carefully about which entity within the State was to perform congressional districting."

Thompson's statement also highlights the handwritten notes of Wilson, the delegate who served on the Committee of Detail, that say: "The Time of the Election of the Members of the H. D. and of the Meeting of U. S. in C. assembled." Those notes, Thompson argues, are confirmation that "a version of the Elections Clause" was part of the original, lost Pinckney Plan from 1787.

Asked by email how the North Carolina Republicans he's representing account for those notes not including the word "State" or specifying which entity would prescribe the time of elections for the House of Delegates, Thompson replied that "it's obvious to us that James Wilson is doing a sketch or an outline" of the Pinckney Plan.

Does it matter what Pinckney said in 1787?

The North Carolina Republicans' citation of the 1818 version of the Pinckney Plan has drawn criticism from within the legal world.

"Debate in the Supreme Court is increasingly littered with bad history," wrote Ethan Herenstein and Brian Palmer of the Brennan Center for Justice at New York University School of Law in Politico Magazine. "But if you're going to do originalism, at least use originals."

Regardless of what the original Pinckney Plan of 1787 actually did or did not include, many constitutional scholars say that parsing words from notes and drafts from the Constitutional Convention is besides a key point in Moore v. Harper.

"The word 'legislature' did not float freely—independently—in the eighteenth-century air. Rather, the word was grounded in Founding-era law and theory: A 'legislature' was a creature of its master constitution," write Akhil Reed Amar, Vikram David Amar and Steven Gow Calabresi in a friend-of-the-court brief filed in support of the North Carolina Republicans' opponents in the redistricting case.

Focusing on the Pinckney Plan does not help answer the core questions this case raises, says Amar, a Yale University law professor and author of The Words That Made Us: America's Constitutional Conversation, 1760-1840.

"One guy submits a piece of paper. So what? The committee may not have even paid any attention to that piece of paper," Amar says. "Let's focus on the big picture — the Articles of Confederation."

An originalist analysis of the Constitution, Amar contends, is best done when focusing on public sources. And in that public predecessor to the U.S. Constitution, Amar argues, there are words that foreshadow the Constitution's Elections Clause — "delegates shall be annually appointed in such manner as the legislature of each State shall direct."

Using the word "legislature" in the Elections Clause, as the brief by Amar and his co-authors puts it, "offered a comforting textual continuity with the Articles" and echoed this notion: "If state constitutions could (and did) dictate rules for state legislatures in the congressional-selection process under the Articles, surely state constitutions could likewise dictate rules for state legislatures in the congressional-selection process under the Constitution."

Larson, the Pepperdine professor of history and law, adds that the Elections Clause's wording "does have strong suggestions that a state court can't unilaterally" determine how to run congressional elections.

"But it doesn't suggest that the state court doesn't have its normal powers of review and declaring what the state legislature had done was unconstitutional and then sending it back to the state legislature to try to do it right," Larson adds.

Still, that may not be how some Supreme Court justices interpret the Elections Clause's language before the court is expected to make a decision in Moore by the end of the term.

Justices Samuel Alito, Neil Gorsuch and Clarence Thomas have already indicated they would likely side with the North Carolina Republicans' position in support of the independent state legislature theory.

The public may gain more insight into the high court's thinking during oral arguments, which are scheduled for Dec. 7.

For Uzzell of Washington and Lee University, what is clear is that this case so far follows a pattern of problematic citations of what is known as the Pinckney Plan.

"Lawyers and judges are still guilty of what is called derisively 'law-office history.' They think they can prove their case of what the original meaning of the Constitution is by dipping into the records and selecting a few quotations at random without knowing anything about the historical context," Uzzell says. "Nowhere does it get more complicated than when we look at the lost Pinckney Plan."

Edited by: Benjamin Swasey

Corrected: November 3, 2022 at 12:00 AM EDT

An earlier version of this story included a portrait whose subject was incorrectly identified as Charles Pinckney, a delegate at the Constitutional Convention of 1787 who presented a plan of government. In fact, the portrait's subject was a cousin of Pinckney who also attended the convention, Charles Cotesworth Pinckney.