Charles Pinckney in Hindsight and the Supreme Court

Yesterday I was struck by Pema Levy’s article at Mother Jones about a false document being cited to the U.S. Supreme Court.

Levy based her article on September essay at Politico by Ethen Herenstein and Brian Palmer, and by briefs that have been filed with the court since.

Levy writes:

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 [shown here]. 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. . . .

“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.

Max Farrand included the Pinckney document in his comprehensive twentieth-century compilation of documents related to the U.S. Constitution, but with a note and additional documents making quite clear that it was not a reliable historical source. A genuine contemporaneous copy of Pinckney’s actual plan survived in the papers of James Wilson and was published in 1904.

Advocates for the “Independent State Legislature” theory have seized on one small detail in the post-Constitution Pinckney document, arguing that it shows the Framers (not just Pinckney) planned at the start of the Constitutional Convention (not two to four decades later) to give states unlimited power over federal elections.

Levy says:

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. . . .

It’s possible that the lawyers…who cited the version of the document in Farrand’s 1911 compendium, simply failed to read past the plan to the historian’s conclusion that it was a fake, and that they likewise failed to read Madison’s public takedown or his private letters expressing doubts, all of which were included by Farrand. Whether they meant to or not, they hung their argument on a fake document because it offered a glimmer of originalist evidence to back up their case.

Historians and legal scholars, including some on the political right, have filed briefs arguing against reliance on this document in particular and the theory being espoused in general.

The response has been legal tap-dancing:

the lawyers filed a new brief defending their use of the Pinckney plan. They argued that the plan was not technically “a fake” because it is “undisputed” that Pinckney wrote it, and allege that the generations of historians who discredited the document were hoodwinked by Madison’s “campaign to diminish the significance of [Pinckney’s] role at the convention.”

Justices on the Supreme Court today have been willing to deny photographic evidence and ignore decades of legal and historical precedent in order to reach the verdicts they want. In this case, a majority could adopt the “Independent State Legislature” theory without mentioning one problematic document. But if the final decisions do mention Pinckney, that will be yet more evidence that the “originalists” on the court aren’t interested in the original Constitution at all.

The Real Lessons of the Three-Fifths Compromise

American historians’ Twitter feeds lit up yesterday with links and responses to an essay from James Wagner, the president of Emory University, extolling the value of compromise. Though the essay started talking about national politics, by the end it was clear that Wagner was also addressing the opposition to his program to change the university.

But what really raised eyebrows was the example of compromise Wagner chose to praise:

One instance of constitutional compromise was the agreement to count three-fifths of the slave population for purposes of state representation in Congress. Southern delegates wanted to count the whole slave population, which would have given the South greater influence over national policy. Northern delegates argued that slaves should not be counted at all, because they had no vote. As the price for achieving the ultimate aim of the Constitution—“to form a more perfect union”—the two sides compromised on this immediate issue of how to count slaves in the new nation. Pragmatic half-victories kept in view the higher aspiration of drawing the country more closely together.

Some might suggest that the constitutional compromise reached for the lowest common denominator—for the barest minimum value on which both sides could agree. I rather think something different happened. Both sides found a way to temper ideology and continue working toward the highest aspiration they both shared—the aspiration to form a more perfect union.

Wagner in the past has expressed regret about slavery on Emory’s behalf and written of the university’s “elective amnesia.” But he seems to have had a relapse.

Wagner’s new essay expresses an old view of the Constitution, casting the lifelong servitude of generations of Americans as an acceptable price for creating or preserving the U.S. of A. The rich, white politicians who forged this compromise and benefited most from that union didn’t give up much for it. The provision’s burden fell almost entirely on poor black slaves, and to a lesser extent on relatively poor free farmers in other districts and states who lost voting power.

In fact, most of the states had already agreed to a version of the three-fifths compromise proposed by James Madison during a debate over taxation under the Articles of Confederation. Only two states—New Hampshire and New York—objected, but that was enough to kill the provision under that constitution. James Wilson and Charles Pinckney proposed the same ratio at the Constitutional Convention. After debating the idea, applied to both representation and a “direct tax,” off and on for weeks, the convention adopted it in Article One, Section 2. The convention also declared that its document would be adopted even if four states voted no.

Wagner has other historical examples of compromises to point to. The Constitutional Convention also had to work out deals on a bicameral legislature with two forms of apportionment and the overlapping powers of the government’s three branches. (Of course, some might say those decisions led to periodic gridlock in Washington later.) Nineteenth-century politicians hailed legislative compromises like the Missouri Compromise and the Kansas-Nebraska Act—but they, like the three-fifths clause, had the effect of strengthening slavery.

If I had to choose one example of political compromise from early America that eventually brought wide benefits, it would be the agreement during the states’ ratification conventions to make immediate amendments to the Constitution. The result, today called the Bill of Rights, was mostly a statement of individual rights and protections. But that compromise arose out of a much wider public debate than the elite convention. And Americans didn’t fully enjoy those rights until the Fourteenth Amendment and twentieth-century judicial decisions requiring state and local governments to respect them.

In contrast, the three-fifths clause is now inoperative and repudiated by all. Indeed, it’s so far back in our past that most people don’t understand how it operated. The Constitution didn’t define blacks as three-fifths human, as some now interpret that clause. For purposes of calculating representation in Congress, the Constitution counted enslaved people in a district and multiplied by three-fifths before adding that number to the free people (white and black). But for all other purposes, the Constitution defined slaves as no-fifths of humans—they were property without rights.

Enslaved Americans might have been better off not being counted for representation. As it was, their numbers, multiplied by three-fifths, provided more influence for the rich white men in the parts of the country where they were enslaved. Those elite voters wielded disproportionate power in the U.S. Congress, the Electoral College, and state legislatures that followed the same system. Their representatives used that power to maintain their status and their human property for decades.

That’s the real lesson of the three-fifths compromise: decision-making by the elite alone tends to maintain the advantages of that elite at a cost to others. Real compromises require the participation of all the people involved and real sacrifices, even from the top.