Hansi Lo Wang has this interesting article for NPR: A controversial election theory at the Supreme Court is tied to a disputed document.  From the introduction:

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 [ed.: Moore v. Harper] 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.

On the issues with the Pinckney plan generally:

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.\

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. …

Specifically as to the supposed significance of Pinckney in Moore:

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.”

And some law professor commentary:

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.”

[Edward] 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.

(Via How Appealing).

Methodologically I think Professor Amar has it right: public documents like the Articles provide more reliable context, and it’s hard to know the significance of Pinckney’s suggestions even if he really made them at the Convention (and we can’t be sure he did).  When the Constitution carried over language from the Articles, that’s pretty good evidence that it was understood to carry over the associated practices from the Articles period as well.

On the merits, I think Professor Larson is right to point to a middle ground.  See here from William Baude and Michael McConnell.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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