SCOTUS Seems Poised to Overrule Democracy By Drawing on a Historical Forgery

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 decision could provide a dramatic example of the court’s flaunting of inconvenient facts.

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.