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Con Law: How a Fake Document Could Help the Supreme Court Diminish our Democracy

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They’ve adopted alternative facts, but are the conservative justices ready to embrace fraud?

Three decades after the Constitution was drafted in Philadelphia, Secretary of State John Quincy Adams set about assembling the government’s official Journal of the Convention. Missing from the records was the proposal submitted by Charles Pinckney of South Carolina. So Adams wrote him to request a copy. Pinckney replied with an extraordinary document: a draft that so closely resembled the final Constitution that he would have to have been clairvoyant to have written it.

With most of the 1787 convention’s attendees now dead, Pinckney may have seen an opportunity to claim credit as a key architect of the Constitution. Whatever the reason, Pinckney submitted a fraudulent draft. “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,” he replied to Adams’ request in 1818, “but enclosed I send you the one I believe was it.” Oddly, the document was written on paper with a 1797 watermark, matching his accompanying letter. Nonetheless, Adams published it.

The debunkings came fast. James Madison, the convention’s most meticulous notetaker, soon wrote to friends that the draft was inaccurate. Years later, Madison discredited Pinckney’s fraud in writing, explaining the document contained language that had only been arrived at after weeks of debate and could not have been divined before the convention began. Madison, convinced it was a fake, detailed how Pinckney’s supposed draft contradicted a more contemporaneous account of the South Carolinian’s actual proposal. Academics would go on to agree that the plan Pinckney sent was a con. In 1911, when historian Max Farrand compiled his Records of the Federal Convention of 1787, he appended Pinckney’s document with a collection of countervailing evidence, concluding that “it is established beyond all doubt that this draft does not represent ‘Pinckney’s original plan with some additions and modifications.’ It does not even have Pinckney’s original plan as its basis.”

So this August, historians of the Constitution were alarmed to see Pinckney’s fraud credulously cited in a brief submitted to the Supreme Court in Moore v. Harper, a high-stakes case that will be heard on Wednesday and whose outcome could usher in new state-level voter suppression and gerrymandering schemes. If the decision rests on Pickney’s alleged plan or similar shaky foundations, it may also prove to be the most dramatic example of a troubling new trend at the court: the flaunting of inconvenient facts and the adoption of alternative ones in their place. 

In recent years, the Republican Party has vigorously questioned reality, as former President Donald Trump and his allies endorsed “alternative facts,” conspiracy theories like QAnon migrated from the fringes to elected members of Congress, and the GOP widely embraced the lie that the 2020 election was stolen. In this environment, the Supreme Court, dominated by Republican-appointed justices, has also recently taken liberties with the facts. The use of a fraudulent document will be a test of how far the court’s conservative majority is willing to go in marshaling alternative facts to suit their agenda. 

At stake in Moore v. Harper is a debate over whether the Constitution grants state legislatures virtually unchecked power to regulate federal elections that can only be superseded by Congress. If the court rules in favor of this so-called “independent state legislature” theory, state lawmakers could pass new measures that block voters and create stacked congressional districts without limit from their own state constitutions and courts. The case came about after North Carolina’s Republican-controlled legislature drew an extremely gerrymandered congressional map that the state’s Supreme Court struck down. North Carolina’s Republican legislative leaders then asked the US Supreme Court to uphold their map by advancing the theory, arguing that the state court had no right to review the map. Scholars and election law experts have warned that a ruling for this fringe doctrine would be an offramp from democracy. 

The court’s 6-3 conservative majority has repeatedly issued rulings that help the Republican Party win elections, allowing GOP gerrymanders and opening the door to modern voter suppression schemes. The court’s conservative wing has also embraced originalism, a method of constitutional interpretation that purports to enshrine the framers’ original intent, and use it to settle disputes over modern constitutional questions. Increasingly, the conservative justices are embarking on historical excavation to craft rulings that they claim comport with America’s history and tradition. Under this new standard, justices can cast about for examples of laws or practices that fit their ideological goals. But in Moore v. Harper, the court’s partisan leanings and originalist methodology rest in conflict, because there is no evidence that the framers of the Constitution intended to give legislatures such authority over federal elections. Nor is there any record this interpretation was accepted in the republic’s early years. In fact, history shows that the independent state legislature theory is a modern invention, designed to further Republican power. 

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