"Independent State Legislature" Legal Theory Based in Fake HistoryBreaking News
tags: Constitution, Supreme Court, elections, democracy, Charles Pinckney
Ethan Herenstein is counsel at the Brennan Center for Justice at NYU Law.
Brian Palmer is editorial director at the Brennan Center for Justice at NYU Law.
Supporters of a legal challenge to completely upend our electoral system are citing a fraudulent document in their brief to the Supreme Court. It’s an embarrassing error — and it underscores how flimsy their case really is.
This fall, the court will hear Moore v. Harper, an audacious bid by Republican legislators in North Carolina to free themselves from their own state constitution’s restrictions on partisan gerrymandering and voter suppression. The suit also serves as a vehicle for would-be election subverters promoting the so-called “independent state legislature theory” — the notion that state legislators have virtually absolute authority over federal elections — which was used as part of an attempt to overturn the 2020 presidential election.
The North Carolina legislators’ case relies in part on a piece of paper from 1818. But there’s a problem: The document they quote in their brief is a well-known fake. So as the Supreme Court considers whether to blow up our electoral system, it should know the real American history.
The story starts at the 1787 Constitutional Convention, when an ambitious young South Carolinian named Charles Pinckney submitted 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. The Convention records, however, reveal that the framers hardly discussed Pinckney’s plan and, at key moments, rejected his views during the debates.
Those documents were sealed for decades following ratification. This created a vacuum in the historical record, into which Pinckney strode. In 1818, when the government was gathering records from the Convention for publication, Pinckney submitted a document that, he claimed, represented his original plan. It was uncannily similar to the U.S. Constitution.
James Madison, one of the main authors of the Constitution, was “perplexed” when he saw Pinckney’s document. He was “perfectly confident” that it was “not the draft originally presented to the convention by Mr. Pinckney.” Some of Pinckney’s text, Madison observed, was impossibly similar to the final text of the U.S. Constitution, which was painstakingly debated over the course of months. There was no way Pinckney could have anticipated those passages verbatim. In addition, Madison was quick to point out, many provisions were diametrically opposed to Pinckney’s well-known views. Most telling, the draft proposed direct election of federal representatives, whereas Pinckney had loudly insisted that state legislatures choose them. Madison included a detailed refutation of Pinckney’s document along with the rest of his copious notes from the Convention. It was the genteel, 19th-century equivalent of calling BS.
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