January 28, 2023

The Nerve

Where Government Gets Exposed

S.C. founding father at center of U.S. Supreme Court elections case

By Dallas Woodhouse

One of South Carolina’s early governors – and one of the nation’s most controversial founding fathers – is taking center stage in a critical U.S. Supreme Court case this week that could fundamentally alter the control of federal congressional elections.

Nearly 200 years after the death of Charles Pinckney, who was among four South Carolina signers of the U.S. Constitution, a contentious legal theory has renewed a fierce historical debate surrounding Pinckney’s role in the establishment of the Constitution and American government.

A wealthy Charleston planter and slave owner, Pinckney (1757-1824) became political royalty in South Carolina, initially serving as governor from 1789-1792 and later elected to two more non-consecutive gubernatorial terms. He also served in the S.C. Legislature and U.S. House and Senate. His cousin from South Carolina was a fellow signer of the Constitution.

At issue in oral arguments set for Wednesday before the U.S. Supreme Court in the case of Moore v. Harper is whether the N.C. Supreme Court had the authority under the Elections Clause of the Constitution to throw out that state’s congressional-districts map passed by the N.C. General Assembly and substitute another map drawn by court-appointed special masters.

N.C. Republicans, who control the state’s Legislature, want the nation’s top court to adopt the “independent state legislature” (ISL) theory of the Elections Clause. Under that interpretation, the Constitution allows only state legislatures – not state courts or governors – to draw their respective congressional maps, reviewable only by Congress and federal courts.

The Elections Clause, found in Article 1, Section 4 of the Constitution, reads in part: “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”

So how is South Carolina’s Pinckney connected to the North Carolina case?

N.C. Republicans contend in court papers that by designating the state legislatures’ sole authority in regulating federal elections in their respective states, the Constitution’s framers deliberately rejected a more broadly worded version of the Elections Clause submitted by Pinckney.

Pinckney’s version of the Elections Clause would have allowed “Each State,” as opposed to specifically state legislatures, to “prescribe the time & manner of holding Elections by the People for the House of Delegates.”

Now, 198 years after his death, Pinckney could play a central role in determining which branch of government will set rules for federal elections.

“This is the single most important case on American democracy, and for American democracy, in the nation’s history,” said former longtime U.S. 4th Circuit Court of Appeals Judge Michael Luttig, who is widely known in legal circles for his conservative views but opposes the ISL theory.   

“By striking the (N.C.) General Assembly’s congressional map and redrawing their own, with the help of Democrat partisans, the (state) courts have, once again, violated the separation of powers,” said Republican House Speaker Tim Moore, the lead appellant in the case. “This effort to circumvent the elected representatives of the people will not stand.”

In a friend-of the-court brief, attorneys general from 13 states, including South Carolina, supported North Carolina’s arguments in the case. The Palmetto State’s seven congressional districts are drawn by the S.C. Legislature and are subject to the governor’s veto, though a ruling in favor of the N.C. General Assembly could eliminate the S.C. governor’s role in congressional redistricting as well as oversight from the state Supreme Court.

Given their traditional practice, the nine U.S. Supreme Court justices likely won’t issue a ruling until next summer. But it’s not the first time that the high court has dealt with Pinckney’s views.

In a 1926 case, for example, then-Chief Justice and ex-U.S. President William Howard Taft relied on an 1818 version of Pinckney’s various constitutional proposals, collectively known as the “Pinckney Plan.”

More recently, in his  2015 dissent in an Arizona redistricting case, Chief Justice John Roberts referred to the 1818 version as the “first known draft” of the Elections Clause presented at the 1787 Constitutional Convention.

The fact that a later draft revision included a reference to state legislatures “indicates that the Framers thought carefully about which entity within the State was to perform congressional districting,” Roberts wrote.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh have all expressed some support for the ISL theory.

Dangerous election theory?

Critics, mostly on the left side of the political debate, have said that the ISL theory could be used to steal future presidential elections. However, some legal experts who oppose the theory don’t buy that argument.

Matthew Seligman, a fellow at the Constitutional Law Center at Stanford Law School, wrote in  Politico:

“If the court rules as many expect, it could have dire consequences for state courts’ ability to ensure that federal elections are free and fair. But the baseless speculation that it would empower Trumpian state legislatures to execute a legal coup in 2024 by ignoring the results of the popular vote is worse than wrong. It’s dangerous.”

“This case is extremely dangerous to American democracy, but it would not remove all checks on state legislatures,” Helen White, an attorney for the voting rights group Protect Democracy, told The (Raleigh) News & Observer this summer, when the U.S. Supreme Court first agreed to hear the case. “This would not give anyone ‘license to coup.’”

Still, at a minimum, the case could remove governors and state courts from congressional redistricting questions. It also has significant partisan considerations, as Republicans control about two dozen more legislative chambers than Democrats.

But did the nation’s founding fathers intend state legislatures to be the sole political actors responsible for federal election policy in the states? N.C. legislative leaders believe so, and the Pinckney Plan is central to their arguments to be heard Wednesday in the nation’s top court.

They contend in court papers that contrary to its actual wording, the Elections Clause “could have said that (federal election) rules are to be prescribed ‘by each State,’ which would have left it up to each State to decide which (state entity) should exercise that power.”

“If a redistricting process more starkly contrary to the U.S. Constitution’s Elections Clause exists, it is hard to imagine it,” the lawmakers wrote.

Critics, though, of the ISL theory have blasted the use of the Pinckney Plan, with The Brennan Center for Justice at the New York University School of Law even calling the plan document “fake.”

Responding, N.C. legislators in court papers said:

“The document is not ‘a fake’: it is undisputed that Pinckney submitted a Plan on May 29, 1787; and it is undisputed that the 1818 version was written by Pinckney himself and published by (John Quincy) Adams as an authentic historical document.”

Pinckney’s influence debated

Among the dozens of  provisions that Pinckney submitted for the new Constitution, he is credited with the notion of the separation of church and state, and is said to have coined the phrase, “the legislature of the United States shall pass no law on the subject of religion,” though the wording doesn’t appear in the First Amendment of the Bill of Rights (1789).

At the same time, however, Pinckney and Pierce Butler, another wealthy plantation owner and South Carolina signer of the Constitution, supported treating runaway slaves as criminals. Butler introduced a constitutional provision known as the Fugitive Slave Clause, which eventually became a focal point in South Carolina’s secession from the U.S. in 1860 and later was invalidated with the passage of the 13th Amendment  banning slavery.

The 1787 Constitutional Convention voted to refer the Pinckney Plan to its Committee of Detail.  It was there, N.C. lawmakers contend in court papers, that the draft Elections Clause was changed to allocate authority to each state’s legislature, rather than to the state generally.

Pinckney’s original constitutional plan was lost. But details were reconstructed from convention records, his own notes and rough drafts assembled decades after the fact.

As noted by NPR:

“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.”

In 1818, when then-Secretary of State John Quincy Adams, who later became the 6th U.S. president, was tasked to oversee the first publishing of the Constitutional Convention’s official records, he wrote to Pinckney 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 version was published as the Pinckney Plan, sparking debates – which have continued to this day – about Pinckney’s actual contributions to the Constitution.

James Madison, the 4th U.S. president who later was referred to as the “Father of the Constitution” and proposed the Bill of Rights, had a low opinion of Pinckney, who, as a man in his 20s, was one of the youngest delegates at the Constitutional Convention.

 As noted by Michigan State University historian S. Sidney Ulmer:

“His youth, however, did not keep him from taking an active part in Convention affairs. Indeed his willingness to take the initiative, his aggressiveness at such a youthful age, when surrounded by older and more experienced sages, made him somewhat less than popular. It is known that both Madison and Washington, among others, considered him indiscreet and presumptuous.”

South Carolina historian Marty D. Matthews, regarded as the most knowledgeable Pinckney biographer, wrote that Madison found Pinckney “intemperate and factious.” Later Madison would conclude Pinckney was arrogant and a less-than-effective delegate, holding those views until his death.

Ulmer, however, 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.”

But whatever Madison’s criticisms were with Pinckney, they didn’t appear to be related to the Elections Clause or the argument that the Constitutional Convention’s Committee of Detail “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,” N.C. legislators wrote in their Moore v. Harper brief.

Legislators also point to Virginia delegate Edmund Randolph’s handwritten markup of the Committee of Detail’s early draft constitution, contending that because the Pinckney Plan appeared to have been the only one submitted to the committee that contained a version of the Elections Clause, “it stands to reason that that Plan was the source of the wording in the Committee’s initial draft.”

In addition, the lawmakers also claim that Pennsylvania delegate James Wilson’s handwritten notes on the Committee of Detail show that Pinckney’s original draft of the Elections Clause was “considered, debated and intentionally changed.”

‘Forgotten founder’

Nobody can say for certain what the U.S. Supreme Court will decide in Moore v. Harper. Critics of the ISL theory predict chaos in federal elections if governors and state courts are completely removed from the setting of election policy in federal elections at the state level.

Others, including the author of this article, have forecast an extremely narrow ruling that would prevent gross overreach from state courts when it comes to congressional redistricting, as was the case in North Carolina.

Although not involved in the court case, South Carolina historian Marty D. Matthews has contended that Pinckney is “truly a forgotten founder” of American government.

“Despite the major roles he played in the establishment of the United States, the development of republican ideology that informed the founding and his successes in nearly every public political office he held, he has been overlooked by most,” Matthews wrote.

Yet, when it comes to elections policy, Pinckney’s role at the Constitutional Convention is now front and center. In Moore v. Harper, Pinckney’s words and actions are going to matter – 235 years after the fact.

Woodhouse is the executive director of the South Carolina Policy Council – The Nerve’s parent organization. He can be reached at dallas@scpolicycouncil.org.

We need your help to continue our mission of holding government officials accountable! As part of the South Carolina Policy Council, a nonprofit, nonpartisan research organization, we rely on donations to operate. Please consider giving today so we can keep bringing accountability to government. It’s your power, and it’s time to take it back!
The Nerve