St. Mary's Law Journal St. Mary's Law Journal
Volume 53 Number 3 Article 2
9-29-2022
The Deep South’s Constitutional Con The Deep South’s Constitutional Con
Lynn Uzzell
St Mary's University
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Recommended Citation Recommended Citation
Lynn Uzzell,
The Deep South’s Constitutional Con
, 53 ST. MARY'S L.J. 711 (2022).
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711
ARTICLE
THE DEEP SOUTH’S CONSTITUTIONAL CON
LYNN UZZELL
*
I. Introduction .............................................................................................. 712
II. Historical Background ............................................................................. 714
A. Charles Pinckney’s Admirers .......................................................... 714
B. History of the Lost Plan .................................................................. 720
C. History of the Scholarship on the Lost Plan ................................ 726
III. Challenging Jameson’s Identification..................................................... 740
A. The Superior Claims of McLaughlin’s Manuscript over
Jameson’s............................................................................................ 740
B. An Alternative Theory to Explain the Jameson Draft:
Examining the New Jersey Extract ................................................ 748
C. The Alternative Theory, Tested by Internal Evidence ................ 751
D. The Alternative Theory, Confirmed by the McLaughlin Draft . 753
IV. The Deep South’s Constitutional Con ................................................. 766
V. Conclusion ................................................................................................ 774
Appendix 1 The Jameson Manuscript .................................................. 776
Appendix 2 The McLaughlin Manuscript ............................................ 780
*
Visiting Assistant Professor of Politics at Washington and Lee University. I am grateful to
numerous friends and colleagues for their encouragement, assistance, and advice: John Patrick Coby,
Nicholas Cole, Donald L. Drakeman, William Ewald, Mary Hackett, and Lorianne Updike Toler.
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Was the Constitution an inherently pro-slavery document? Surprisingly, a full answer
to that question depends, in part, on correctly understanding the mysterious Pinckney
Plan. Charles Pinckney of South Carolina proposed a plan of government at the start of
the Constitutional Convention, but no authentic copy of the original survives. Three
decades later, Pinckney circulated a plan which he claimed was the one he offered in 1787.
He also claimed that he was the author of most of the Constitution and that the Privileges
and Immunities Clause he proposed was conceived with a racist and pro-slavery
understanding. Most experts, beginning with James Madison, determined that the
1818 Plan was far too close to the final Constitution to be genuine, and for many years
Pinckney’s constitutional con was thoroughly discredited. But in 1903, John Franklin
Jameson discovered a manuscript and wrongly identified it as an extract of the Lost Plan.
That error sparked a surprising surge of credulity in Pinckney’s fraudulent claims. Today,
a vast accumulation of errors on the Pinckney Plan can be found throughout the scholarly
and popular literature on the Constitution’s formation. Today’s Supreme Court wrongly
attributes the Privileges and Immunities Clause to Pinckney. Getting the story right
requires overturning more than a hundred years of faulty scholarship on the Pinckney
Plan. The true story will cast some doubt on the thesis that the Constitution was conceived
as a racist and pro-slavery document.
I. INTRODUCTION
In 2019, the New York Times published a special feature titled The 1619
Project. The series of essays not only sought to commemorate the 400-year
anniversary of the first arrival of enslaved Africans to the shores of British
North America; it also sought to reframe the American story by naming this
date as the true founding of the nation. Nikole Hannah-Jones, who
spearheaded the project and wrote the lead essay, argued that the more
commonly cited Founding moments (whether 1776 or 1787) were merely
continuations of the story of white Americans brutalizing and oppressing
black Americans.
1
“Anti-black racism runs in the very DNA of this
country,” she wrote;
2
in particular, the Framers of the Constitution
“carefully constructed a document that preserved and protected slavery.”
3
Her assertions were provocative but not novel. Arguments that the
Constitution was designed either to promote or to undermine slavery are as
old as the Constitution itself; interested parties have staked out claims on
1
. See Nikole Hannah-Jones, The Idea of America, N.Y. TIMES MAG., Aug. 18, 2019, at 17–19
(illuminating the atrocities that were being committed against black Americans when the country was
founded).
2
. Id. at 21.
3
. Id. at 18.
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both sides of this question since the Constitution first made its public
appearance. Nor will this question ever be definitively decided on one side
or the other, since there are individual facts that weigh on both sides.
Nevertheless, references found in several Supreme Court cases lend further
support to the 1619 interpretation of the Constitution. In Austin v. New
Hampshire,
4
the Court attributes the final wording of the Constitution’s
Privileges and Immunities Clause (which differs from a similar clause in the
Articles of Confederation) to Charles Pinckney of South Carolina.
5
Other
cases have followed Austin’s lead.
6
As Julian N. Eule neatly summarizes:
Pinckney “is generally believed to have drafted the shorter version” of the
Privileges and Immunities Clause.
7
As evidence for the clause’s origins, Austin cited a congressional speech
Pinckney delivered in 1821.
8
In that speech, the representative from South
Carolina not only boasted that he authored the Privileges and Immunities
Clause; he claimed exclusive right to interpret its true meaning.
9
Its true
meaning (if Pinckney’s words can be trusted) foreshadowed Roger Taney’s
infamous ruling in Dred Scott v. Sandford.
10
According to Pinckney in 1821,
“at the time I drew that constitution, I perfectly knew that there did not then
exist such a thing in the Union as a black or colored citizen, nor could I then
have conceived it possible such a thing could ever have existed in it.”
11
Charles Pinckney came from a notable family in South Carolina, and his
political career spanned a lifetime, both in his home state and on the national
stage. He owned hundreds of slaves throughout his life and was an
unapologetic defender of the proposition that slavery was a positive good.
12
If his claims in 1821 (to say nothing of the Supreme Court’s assumptions
today) are accurate, then the fiercest critics of the Constitution have
additional ammunition to add to their arsenal when they argue that racism
4
. Austin v. New Hampshire, 420 U.S. 656 (1975).
5
. Id. at 662 & n.6.
6
. Zobel v. Williams, 457 U.S. 55, 79 (1982) (O’Connor, J., concurring); Sup. Ct. of N.H. v.
Piper, 470 U.S. 274, 280 n.7 (1985).
7
. Julian N. Eule, Laying the Dormant Commerce Clause to Rest, 91 YALE L.J. 425, 447 (1982).
8
. Austin, 420 U.S. at 662 n.6.
9
. Congressional Speech by Charles Pinckney (Feb. 13, 1821), in 37 ANNALS OF CONG. 1129,
1134 (1821) (Joseph Gales ed., Gales and Seaton 1855).
10
. See Dred Scott v. Sandford, 60 U.S. 393, 404–05 (1857) (arguing the Framers did not intend
for citizenship to be extended to non-whites).
11
. Congressional Speech by Charles Pinckney (Feb. 13, 1821), in 37 ANNALS OF CONG. 1129,
1134 (1821) (Joseph Gales ed., Gales and Seaton 1855).
12
. Marty D. Matthews, Forgotten Founder: The Life and Times of Charles Pinckney 79, 131–
32, 134 (2004).
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is an integral part of the Constitution and the nation’s DNA. However,
Charles Pinckney’s claims in 1821 were not true; multiple sources the
Supreme Court has relied on for understanding the Pinckney Plan are
unreliable; and this 200-year-old tangle of falsehoods and errors forms what
is probably the most intractable constitutional con in history.
Part I of this Article relates the long and complicated history of the
Pinckney Plan (both the mysterious 1787 Plan, which disappeared after it
was submitted at the Constitutional Convention, and the spurious 1818 Plan
that Pinckney fabricated three decades later). This history begins with the
numerous tributes to Pinckney’s supposed importance as a constitutional
Framer; it recounts the history of the Lost Plan; and it surveys the history
of the scholarship on the Lost Plan (which in many instances deviates
significantly from the actual history). Part II will scrutinize the manuscript
that John Franklin Jameson identified as an extract of the Lost Plan in 1903.
By examining the internal evidence of that manuscript, as well as comparing
it to a more credible extract of the Lost Plan, we can see that Jameson was
almost certainly mistaken in his identification. Correcting Jameson’s error
is crucial, because most of the faulty scholarship on the Pinckney Plan—
more than a century’s worth—sprang from this initial mistake. Finally,
Part III will show the constitutional significance of getting this story wrong.
Charles Pinckney, along with others in the South, made false claims about
the Constitution’s formation in order to demonstrate that the Privileges and
Immunities Clause was formed with a racist understanding. But the drafting
history of that clause tells a story that is almost the opposite of the one
Pinckney told in 1821: this part of the Constitution was understood by the
Framers as anti-racist and anti-slavery when it was formed. By uncovering
this constitutional con, we can see that Charles Pinckney of South Carolina
has hitherto received far more credit for the final content of the Constitution
than was his due, and James Wilson of Pennsylvania deserves more than he
has received.
II. HISTORICAL BACKGROUND
A. Charles Pinckney’s Admirers
Although most Americans have probably never heard the name Charles
Pinckney, there exists a cadre of devoted admirers who promote his legacy.
Pinckney was the youngest of four South Carolina delegates at the
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Constitutional Convention held in 1787.
13
Because of his youth, Pinckney’s
education was humbler than that attained by some of his contemporaries.
Tensions between England and the colonies in the years leading up to the
War for Independence stymied his family’s plans to educate him in London;
instead, he read law at home in Charleston.
14
But Pinckney’s ambitions were formed early, and his youth and
inexperience did not prevent him from proposing his own Plan of
Government for consideration in the Convention’s opening days.
Apparently, the rest of the delegates ignored that Plan, and no one kept an
authentic copy.
15
However, three decades later Pinckney circulated a plan
which he claimed was the one proposed at the outset of the Convention.
The 1818 Plan was strikingly similar to the final Constitution adopted by the
Convention. According to Pinckney’s own (unsubstantiated) account in
1821, numerous senators and Supreme Court Justices told him that it was
now widely recognized that his Plan formed the basis for most of the U.S.
Constitution:
I had been not only the first but the only member [of the Constitutional
Convention] that had ever submitted a complete Plan to the Convention, &
as the Constitution as adopted was more than three-fourths of it in the very
words of my plan . . . [I] ought to have more credit for the first thought &
first plan & therefore the Constitution itself than any other man in America.
16
At the time he wrote those lines, intellectual giants like John Marshall and
Joseph Story were among the Supreme Court Justices, and they frequently
wrote about the Constitution. But they left behind not a word which would
substantiate Pinckney’s claim that they believed the Constitutional text is
primarily indebted to his Plan of Government.
In fact, the only contemporaneous corroboration of Pinckney’s
remarkable claims came from his friend and fellow South Carolinian,
13
. William S. Elliott, Art. V.—Honorable Charles Pinckney, LL.D., of South Carolina, 34 DE BOW’S
REV. 59, 63 (1864).
14
. MATTHEWS, supra note 12, at 11–12.
15
. Plans of Government Proposed at the Convention, CTR. FOR THE STUDY OF THE AM. CONST.,
https://csac.history.wisc.edu/document-collections/the-constitutional-convention/the-plans-at-the-
convention/ [https://perma.cc/8U43-PFK2].
16
. Letter from Charles Pinckney to Robert Y. Hayne (Mar. 31, 1821) (on file with the New
York Public Library), from the Charles Pinckney letters and financial documents, Manuscripts and
Archives Division, The New York Public Library, Astor, Lenox, and Tilden Foundations. Profound
thanks to Mary Hackett, who helped me decipher Pinckney’s impenetrable scrawl.
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Senator William Loughton Smith. Smith declared on the floor of the Senate
that “it must be acknowledged that Mr. Charles Pinckney of South Carolina,
had submitted propositions upon which almost all the important provisions
of the Constitution were based.”
17
By the mid-nineteenth century, another
South Carolinian was also touting the importance of the Pinckney Plan. W.
S. Elliott asserted that “the greater part” of Pinckney’s Plan of Government
had been adopted into the Constitution; “so much so, that he has always
been considered as entitled to the high and honorable designation of ‘THE
FATHER OF THE CONSTITUTION.’”
18
Elliott, the author of this eulogy, was
Pinckney’s grandnephew.
In other words, throughout the nineteenth century, Pinckney’s most
ardent admirers appeared to be confined to his immediate circle of friends
and family. But the circle of enthusiasts who exaggerated the claims of the
Pinckney Plan widened considerably beginning in the first decade of the
twentieth century, and they remain stalwart to this day. These accolades of
Pinckney’s 1787 Plan of Government mushroomed in spite of the fact that
no authentic copy of the original survives—or rather, perhaps because of
that fact. Charles C. Nott, writing in 1908, believed that the Constitution’s
content, wording, and design were drawn almost entirely from that Lost
Plan and that “there is no framer of the Constitution more entitled to be
commemorated in bronze or marble than Charles Pinckney of South
Carolina.”
19
According to Hannis Taylor in 1911: “The only plan or
‘system’ actually presented to the Convention was that of Charles Pinckney,
which, as the documentary evidence now available shows, was very largely
used by the Committee of Detail in preparing their draft of the Constitution
submitted to the Convention on August 6.”
20
In 1937, Andrew J. Bethea
complained that, had Pinckney been born in one of the Northern states, he
“would have long since been commemorated in bronze and marble and . . .
been accorded his rightful place among the immortals of history.”
21
In
1950, Joseph R. Bryson, a representative from South Carolina, took to the
17
. William Loughton Smith, On the Report of the Committee on the Petition of Matthew
Lyon, Address Before the United States Senate (Jan. 17, 1821), in 37 ANNALS OF CONG. 405, 410
(1821) (Joseph Gales ed., Gales and Seaton 1855).
18
. Elliott, supra note 13, at 63.
19
. Charles C. Nott, The Mystery of the Pinckney Draught 253–54, 256 (1908).
20
. Hannis Taylor, The Origin and Growth of the American Constitution 36 (1911).
21
. Andrew J. Bethea, The Contribution of Charles Pinckney to the Formation of the American
Union 121 (1937). Bethea’s title was taken from the name of the competition of which his manuscript
was the winning entry. The competition, designed to trumpet Pinckney’s contributions to the
Constitution, was sponsored by the South Carolina Bar Association. Id. at v.
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floor of Congress to praise his state’s favorite son, since Pinckney “probably
supplied more original work in making the Constitution than did any other
individual.”
22
In the first half of the twentieth century, the most fervent tributes to the
Lost Pinckney Plan were still primarily confined to the scholarship and
pseudo-scholarship coming out of South Carolina. However, by mid-
century, Sydney Ulmer was responsible for bringing Pinckneyphilia to a
wider audience. He wrote a pair of articles arguing that it was Pinckney, not
James Madison, who deserves the title, “Father of the Constitution;” he also
argued that Madison had managed to ruin Pinckney’s posthumous
reputation through envy.
23
Taking Ulmer’s hint, numerous subsequent
scholars have scoured Madison’s Notes of the Constitutional Convention,
searching for clues that would prove that Madison had attempted to
suppress Pinckney’s contributions at the Convention, and several historians
believe they found what they were looking for.
24
In each case, however,
the evidence they uncovered proved faulty, to say the least.
25
Yet Ulmer
has had at least as much success in raising Pinckney’s standing among
constitutional scholars as he has had in lowering Madison’s.
Brothers Christopher and James Lincoln Collier, who wrote a popular
history of the Convention in the 1980s, took their bearings from Ulmer.
They were not coy when announcing their intentions for the book; they
were part of the larger project tending to “cast a small shadow over the
reputation of James Madison,” whom they regarded as “the darling of
generations of scholars.”
26
They believed that Madison’s contributions to
the Constitution were overrated, and they concluded that it was Pinckney’s
“viewpoint . . . that was finally adopted by the Convention, and eventually
22
. Extension of Remarks of Hon. Joseph R. Bryson, in 96, Part 17 UNITED STATES
CONGRESS, CONGRESSIONAL RECORD: PROCEEDINGS AND DEBATES OF THE 81ST CONGRESS,
SECOND SESSION, at A6280, A6280 (U.S. Gov’t Prtg. Off. 1950).
23
. Sidney Ulmer, Charles Pinckney: Father of the Constitution?, 10 S.C. L.Q. 225, 225 (1958)
[hereinafter Ulmer, Charles Pinckney]; Sidney Ulmer, James Madison and the Pinckney Plan, 9 S.C. L.Q. 415,
415, 426 (1957) [hereinafter Ulmer, James Madison].
24
. Christopher Collier & James Lincoln Collier, Decision in Philadelphia:
The Constitutional Convention of 1787, at 70 (1986); Richard R. Beeman, Plain, Honest Men: The
Making of the American Constitution 100–01 (2009); Mary Sarah Bilder, Madison’s Hand: Revising
the Constitutional Convention 132 (2015).
25
. Lynn Uzzell, Madison’s Notes: At Last, a New and Improved Look, LAW & LIBERTY (Mar. 8,
2018), https://lawliberty.org/madisons-notes-at-last-a-new-and-improved-look/ [https://perma.cc/
8KUG-JRVQ].
26
. Collier & Collier, supra note 24, at 64.
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the country as a whole.”
27
Richard Beeman, author of another popular
history written 20 years later, drew heavily from both Ulmer and the Colliers.
He suggested that Pinckney may fairly lay claim “to making an important, if
not the most important, contribution to the Constitution.”
28
And a recent
textbook on executive power claims that a careful review of the historical
records “seems to accord Pinckney a greater share of the credit for writing
the Constitution than Madison and his partisans have allowed.”
29
This elevation of Pinckney’s stature among constitutional scholars has
not been lost on the courts. Coinciding with the renewed appreciation of
Charles Pinckney that began in the early twentieth century, the Supreme
Court has increasingly built decisions on the presumed contents of
Pinckney’s Plan. In 1901, Missouri v. Illinois & Sanitary District of Chicago
30
claimed that his Plan gave to the Senate “sole and exclusive power to declare
war and to make treaties.”
31
In 1908, the Pinckney Plan was cited by
Williamson v. United States
32
as the source of the constitutional clause
guaranteeing “[f]reedom of speech and debate” in Congress.
33
In 1926,
Myers v. United States
34
credited the Pinckney Plan with requiring “the
concurrence of the Senate in appointments of executive officials.”
35
According to 1987’s Tyler Pipe Industries v. Washington State Department of
Revenue,
36
the Pinckney Plan gave to Congress an exclusive power to regulate
interstate commerce.
37
And finally, although it is well known that the
Articles of Confederation contained a version of the “privileges and
immunities” clause, the Supreme Court has on numerous occasions,
beginning in 1975, credited Pinckney’s Plan for providing “the shorter
version now found in Art. IV, § 2, cl. 1” of the Constitution.
38
If we
expanded our survey to include district court decisions, we would find that
the Pinckney Plan is also believed to be a major influence on the
27
. Id.
28
. Beeman, supra note 24, at 98.
29
. Michael Nelson, The Puzzle of the Pinckney Plan, in GUIDE TO THE PRESIDENCY AND THE
EXECUTIVE BRANCH 16, 16 (Michael Nelson ed., CQ Press 5th ed. 2013).
30
. Missouri v. Illinois, 180 U.S. 208 (1901).
31
. Id. at 221–22 (quoting Charles Pinckney) (internal quotation marks omitted).
32
. Williamson v. United States, 207 U.S. 425 (1908).
33
. Id. at 437.
34
. Myers v. United States, 272 U.S. 52 (1926).
35
. Id. at 85 n.86.
36
. Tyler Pipe Indus. v. Wash. Dep’t. of Revenue, 483 U.S. 232 (1987).
37
. Id. at 260–61 (Scalia, J., concurring in part).
38
. Austin v. New Hampshire, 420 U.S. 656, 662 n.6 (1975); Zobel v. Williams, 457 U.S. 55, 79
(1982) (O’Connor, J., concurring); Sup. Ct. of N.H. v. Piper, 470 U.S. 274, 280 n.7 (1985).
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Constitution’s provisions for amendments
39
and on trying criminal offenses
in the states where they were committed.
40
Given the growing and glowing tributes to Pinckney and his Plan in the
last century, it is worthwhile to step back and remind ourselves of one crucial
fact: no authentic copy of the Pinckney Plan survives.
41
Therefore, we
cannot know with certainty what was in it. Moreover, when surveying with
a critical and disinterested eye the list of provisions that the Court has
attributed to Pinckney’s Plan, it seems that the likelihood that these clauses
actually were found in the original Plan ranges from arguable (the exclusive
power over interstate commerce)
42
to highly unlikely (every other provision
the courts have attributed to Pinckney’s Plan).
43
How did we arrive at this point where the importance and presumed
contents of the Lost Pinckney Plan have been inflated well beyond anything
warranted by our most reliable evidence? There is no single answer to that
question. Much of the problem rests with Charles Pinckney himself. He
left to posterity no authentic version of his 1787 Plan of Government, but
he did draft more than one spurious account of it.
44
Nevertheless, for a
long time Pinckney was unable to convince anyone outside of Charleston,
South Carolina, of the importance of his Plan.
45
The real problem began
after two manuscripts were discovered in the first decade of the twentieth
39
. Dyer v. Blair, 390 F. Supp. 1291, 1303 n.29 (N.D. Ill. 1975); Idaho v. Freeman, 529 F. Supp.
1107, 1129–30 (D. Idaho 1982).
40
. United States v. Parker, 19 F. Supp. 450, 458 (D.N.J. 1937).
41
. Plans of Government Proposed at the Convention, supra note 15.
42
. Resolution 12 of Wilson’s extract of the Plan included a provision giving to Congress the
“exclusive Power of regulating Trade.” See infra Appendix 2 (quoting the entire McLauglin
Manuscript). However, from the context, it might be argued that only international trade was in
contemplation. Still, a good case could also be made that Pinckney intended to include interstate trade
when he wrote Resolution 12 and that he meant it to be an exclusive power. Nevertheless, one
stubborn fact that should not be overlooked is this: we cannot know Pinckney’s intentions for this
clause with certainty based on the documents that survive.
43
. The reasons for skepticism regarding most of the other provisions should become clear
over the course of this Article.
44
. See, e.g., Charles Pinckney, Observations on the Plan of Government, in 3 THE RECORDS
OF THE FEDERAL CONVENTION OF 1787, at 106, 106–23 (Max Farrand ed., 1911) [hereinafter
Pinckney, “Observations”] [hereinafter 3 RECORDS] (writing an account of his Plan proposed in the
Constitutional Convention).
45
. See, e.g., William Loughton Smith, On the Report of the Committee on the Petition of
Matthew Lyon, Address Before the United States Senate (Jan. 17, 1821), in 37 ANNALS OF CONG. 405,
410 (1821) (Joseph Gales ed., Gales and Seaton 1855) (advocating, as a fellow South Carolinian, for the
acknowledgment of Pinckney’s contributions to the Constitutional Convention).
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century.
46
Both manuscripts were in the handwriting of James Wilson
47
(presumably written while he served on the Committee of Detail), and both
were identified as extracts of the Lost Plan.
The first discovery was made by John Franklin Jameson. He published a
transcript of what he identified to be the Pinckney Plan in 1903,
48
and he
provided a lengthier explication of the Lost Plan later that same year.
49
Andrew McLaughlin made the second discovery in 1904.
50
When these
two manuscripts were combined, they gave the impression that Pinckney
was the originator of numerous clauses within the Constitution. However,
the first discovery, the one found by Jameson, appears to be a case of
mistaken identity. Many of the clauses that have long been attributed to
Pinckney should properly be credited to James Wilson, a delegate from
Pennsylvania who was later a Supreme Court Justice and founder of the
University of Pennsylvania Law School.
51
Telling the true story requires
dismantling more than a hundred years of faulty scholarship on Charles
Pinckney and his contributions to the Constitution. It begins with
questioning Jameson’s claim to have found the first extract of the Lost
Pinckney Plan.
B. History of the Lost Plan
Even the warmest admirers of Charles Pinckney rarely deny that he was
vain and ambitious.
52
At 29, Pinckney was among the youngest members
46
. See generally John Franklin Jameson, Portions of Charles Pinckney’s Plan for a
Constitution, 1787, 8 AM. HIST. REV. 509, 509 (1903) [hereinafter Jameson, Portions of Pinckney’s
Plan] (discussing a transcript identified as the Pinckney Plan); Andrew C. McLaughlin, Sketch of
Charles Pinckney’s Plan for a Constitution, 1787, 9 AM. HIST. REV. 735, 735 (1904) [hereinafter
McLaughlin, Sketch of Pinckney’s Plan] (examining a manuscript of Pinckney’s Plan).
47
. Jameson, Portions of Pinckney’s Plan, supra note 46; McLaughlin, Sketch of Pinckney’s Plan, supra
note 46.
48
. Jameson, Portions of Pinckney’s Plan, supra note 46, at 510–11. Jameson actually credits the
first discovery of the manuscript to William M. Meigs. Id. at 509. However, since Meigs never
published or even examined it carefully, it seems fitting to credit Jameson with the true discovery.
49
. John Franklin Jameson, Studies in the History of the Federal Convention of 1787, in 1 ANNUAL
REPORT OF THE AMERICAN HISTORICAL ASSOCIATION FOR THE YEAR 1902, at 87, 87 (1903)
[hereinafter Jameson, Studies]. The portion devoted to the Pinckney Plan spans pages 111–132.
50
. McLaughlin, Sketch of Pinckney’s Plan, supra note 46.
51
. James Wilson, PENN UNIV. ARCHIVES AND RECS. CTR, https://archives.upenn.edu/
exhibits/penn-people/biography/james-wilson [https://perma.cc/Q35T-SHU7].
52
. Among Pinckney’s greatest defenders, see NOTT, supra note 19, at 23 (stating Pinckney was
“egotistical,” just like “most men of great ability and prominence”); Mark D. Kaplanoff, Charles Pinckney
and the American Republican Tradition, in INTELLECTUAL LIFE IN ANTEBELLUM CHARLESTON 85, 113
(Michael O’Brien & David Moltke-Hansen eds., 1986) (“[Pinckney] was known for his personal vanity
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at the Constitutional Convention (although he evidently lied about his age
to boast that he was the youngest member).
53
Despite his youth, the junior
delegate from South Carolina was determined to distinguish himself at the
momentous gathering which, before the summer was out, would propose a
new Constitution for the fledgling United States. Pinckney arrived in
Philadelphia early and lodged at Mary House’s boarding house, in company
with many of the delegates from Virginia. James Madison had likewise
arrived early. Madison convinced his fellow Virginians that “some leading
propositions at least would be expected from” their state; he therefore urged
them to arrive promptly so they could devise a plan of government to guide
the upcoming debates.
54
While Madison and his colleagues were engaged
in composing what would later be known as “The Virginia Plan,” Pinckney
was drafting a Plan of his own. Madison later recalled that Pinckney “was
fond of conversing on the subject” with his fellow lodgers during those
tense days while they all waited for the required quorum to open business.
55
Pinckney’s vanity and loquacity served posterity in one important respect,
for it induced him to give a copy of his Plan to another boarder, George
Read of Delaware. That copy has never been found, but Read subsequently
described some of its contents in a letter he wrote a few days before the
Convention opened.
56
This letter is important because it is the only
contemporaneous account we possess of the Lost Plan that Pinckney
presented just a week later. Nevertheless, it describes only a few details
about the structure of the government Pinckney wanted, and it notes
correctly that many of these structural details are similar to the Virginia Plan.
Although the Convention officially began on May 25, its first few days
were occupied in seating the members, reading their credentials, and
and his persistent political ambition.”); FRANCES LEIGH WILLIAMS, A FOUNDING FAMILY: THE
PINCKNEYS OF SOUTH CAROLINA 361 (1978) (“[Pinckney] was considered by his admirers to have a
scintillating brilliance. This induced a vanity that irked many older political leaders . . . .”); MATTHEWS,
supra note 12, at 24, 42, 48. But cf. id. at 141 (dismissing the charge of vanity as a smear concocted by
his enemies, especially James Madison, but also acknowledging in his “Final Assessments” that
Pinckney “was at times arrogant and vain”).
53
. William Pierce, Character Sketches of Delegates to the Federal Convention, in 3 RECORDS,
supra note 44, at 87, 96 & n.1.
54
. Letter from James Madison to Edmund Randolph (Apr. 8, 1787), in THE PAPERS OF JAMES
MADISON DIGITAL EDITION, http://rotunda.upress.virginia.edu/founders/JSMN-01-09-02-0197
[https://perma.cc/59BF-AQ2T] (J.C.A. Stagg ed., University of Virginia Press, Rotunda 2010).
55
. Letter from James Madison to Jared Sparks (Nov. 25, 1831), in 3 RECORDS, supra note 44,
at 514, 515.
56
. Letter from George Read to John Dickinson (May 21, 1787), in 3 RECORDS, supra note 44,
at 24, 25.
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devising the rules to govern them for the summer. The real business did
not begin until May 29. Edmund Randolph, the Governor of Virginia,
opened the discussions by describing their precarious condition under the
present Articles of Confederation; he proposed the Virginia Plan as a viable
remedy for what ailed them.
57
Undaunted, Pinckney followed Randolph’s
lead by submitting his own Plan as another alternative to the Articles, even
though he “confessed that it was grounded on the same principle as of the
above resolutions.”
58
(In other words—actually, in the words of George
Read—the Pinckney Plan was “nearly similar” to the Virginia Plan.)
59
Both
of these plans were formally submitted to the Committee of the Whole
which was formed on the next day.
It appears that no notice whatsoever was taken of the Pinckney Plan for
the next several weeks. The Convention’s debates were entirely based on
the Virginia Plan, except for the few days in mid-June when the delegates
considered the rival New Jersey Plan (read by William Paterson on June 15),
which, along with the Virginia Plan and the Pinckney Plan was also formally
submitted to the Committee of the Whole.
60
Hamilton spent an entire day
on June 18 criticizing as inadequate both plans under discussion (Virginia’s
and New Jersey’s). He recommended yet another Plan of his own devising
(which he read aloud but never formally submitted to the Convention).
61
In all, there were four plans read at the Constitutional Convention: three
were formally submitted (the Virginia Plan, the Pinckney Plan, and the New
Jersey Plan), and one was read but never actually proposed (the Hamilton
Plan). The Committee voted to reject the New Jersey Plan on June 19,
62
which made the Virginia Plan the only significant influence on the shape of
the delegates’ debates and proposals for the first two months of the
Convention.
On July 26, the Convention appointed a five-member Committee of
Detail tasked with writing the “first draft” of the Constitution based on the
57
. Madison’s Notes (May 29, 1787), in 1 THE RECORDS OF THE FEDERAL CONVENTION OF
1787, at 17, 18–23 (Max Farrand ed., 1911) [hereinafter 1 RECORDS]. All references to the debates in
the Convention are from Madison’s Notes, unless otherwise noted.
58
. Yates’ Notes (May 29, 1787), in 1 RECORDS, supra note 57, at 23, 24. For whatever reason,
Madison’s original notes for May 29 were exceedingly sparse, only a few lines. He later acquired
Randolph’s speech from its author and filled in the procedural details from the Journal. He was never
able to acquire an authentic copy of Pinckney’s Plan—the most significant lacuna in his Notes.
59
. Letter from George Read to John Dickinson (May 21, 1787), supra note 56, at 25.
60
. Madison’s Notes (June 15, 1787), in 1 RECORDS, supra note 57, at 242, 242–45.
61
. Madison’s Notes (June 18, 1787), in 1 RECORDS, supra note 57, at 282, 282–93.
62
. Madison’s Notes (June 19, 1787), in 1 RECORDS, supra note 57, at 313, 322.
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decisions the delegates had made up to that point. This body met for more
than a week while the rest of the delegates took a break. Three documents
were committed to their care: a list of twenty-three Resolutions to which the
Convention had so far agreed (these Resolutions were drawn from,
amended from, and at times added to the Virginia Plan), the New Jersey
Plan, and the Pinckney Plan.
63
The mysterious Pinckney Plan thus became
the property of the Committee of Detail from July 26 through August 6,
when the members of the Committee made their report. From that point,
the document trail ends. It is impossible to know what became of the
original manuscript, and no authoritative copy has ever surfaced. No one
denies that the Pinckney Plan had no measurable influence on the debates
during the first two months of the Convention; however, several scholars
have maintained that it had an enormous influence on the Committee of
Detail Report. Many of the provisions devised by the Committee Report
were original; these provisions shaped the debates for the remainder of the
Convention; and many of them were adopted into the final Constitution. If
the Committee drew from Pinckney’s Plan as much as his defenders have
argued, then the eulogies to Charles Pinckney have not been inflated—at
least, not by much. However, the papers from that committee are sparse,
and it is impossible to know for certain where the members were looking
for inspiration.
64
The lack of any authentic copy of the Lost Plan is not the only problem
researchers face when attempting to gauge its influence on the final
Constitution; a greater problem surfaces because Pinckney supplied
posterity with more than one spurious version of that Plan. Shortly after
the Convention adjourned, Pinckney published a self-promoting pamphlet,
“Observations on the Plan of Government Submitted to the Federal
Convention . . . By Mr. Charles Pinckney” (“Observations”).
65
The
“Observations” did not include a copy of the Plan, but it described and
defended the ostensible contents of the Plan in such detail that, if it could
be trusted as a source, the reader would glean a fair grasp of its substance.
63
. Madison’s Notes (July 26, 1787), in 2 THE RECORDS OF THE FEDERAL CONVENTION OF
1787, at 118, 128 (Max Farrand ed., 1911) [hereinafter 2 RECORDS].
64
. The documents of the Committee of Detail are still waiting for a comprehensive analysis;
thus far, the most thorough examinations have been done by University of Pennsylvania law professor,
William Ewald. William Ewald, The Committee of Detail, 28 CONST. COMMENT. 197, 201 (2012)
[hereinafter Ewald, The Committee of Detail]; William Ewald & Lorianne Updike Toler, Early Drafts of the
U.S. Constitution, 135 PENN. MAG. OF HIST. &BIOGRAPHY 227, 235–36 (July 2011).
65
. Pinckney, “Observations”, supra note 44, at 106–23.
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However, no one, not even Pinckney’s defenders, believes that the
“Observations” is thoroughly trustworthy for ascertaining the contents of
the Lost Plan. To state just one problem, it is impossible to reconcile with
the 1818 Plan, so at least one of Pinckney’s later versions must be wrong.
Although the “Observations,” like the 1818 Plan, undoubtedly contains
many elements which were in the original, it also bears evidence of being
“touched up” after the fact.
66
Pinckney self-published the “Observations” as a pamphlet, probably in
the first half of October 1787.
67
It was also reprinted in South Carolina’s
State Gazette in installments from October 29 through November 29,
1787.
68
The following year, Pinckney also tried to get a copy printed in
Matthew Carey’s Philadelphia-based publication, American Museum;
however, Carey indicated he was more interested in publishing the actual
Plan. In reply, Pinckney said he no longer had a copy, since the original was
“laid before the convention, & the copy I gave to a gentleman at the
northward” (presumably referring to George Read); nevertheless, Pinckney
could assure Carey that “the System” he proposed at the outset of the
Convention “was very like the one afterwards adopted.”
69
In other words,
he wanted Carey to believe that his Plan was very like the final Constitution.
Pinckney made another problematic claim to Carey. He said that the title
66
. To see only the most obvious sign of Pinckney’s retroactive editing of his Plan in the
“Observations,” see Pinckney, “Observations”, supra note 44, at 116 (describing the sixth article of his
Plan); Letter from George Read to John Dickinson (May 21, 1787), supra note 56, at 25; see infra
Appendix 2 (proposing a three-fifths clause in Resolution 4). According to the two most authoritative
sources for the Pinckney Plan (George Read’s letter and the McLaughlin Draft), Pinckney’s original
Plan had used the ratio of three-fifths for counting slaves toward apportionment, but not for taxation.
Applying that same ratio to taxation did not come up in the Convention until much later. According
to Pinckney’s “Observations,” however, the Plan had used the three-fifths ratio for taxation but not
for representation. The reason for the change is obvious. Although Pinckney seconded James Wilson’s
motion to adopt the three-fifths rule for apportionment, he subsequently changed his mind and argued
for full representation of the enslaved population. The “Observations” expunges from the record that
he had initially proposed the rule for apportionment and substitutes taxation; decades later (within the
1818 Plan and within a speech he delivered in 1820) Pinckney denied outright any involvement in the
three-fifths compromise. See Charles Pinckney in the House of Representatives (Feb. 14, 1820), in
3 RECORDS, supra note 44, at 439, 440–42 (arguing that the three-fifths clause was forced upon the
South); Max Farrand, Appendix D: The Pinckney Plan, in 3 RECORDS, supra note 44, at 595, 596, 599
(using “the whole number of inhabitants of every description” as a rule for both taxation and
representation instead of the three-fifths ratio).
67
. Pinckney, “Observations”, supra note 44, at 106 n.1.
68
. Id.
69
. Letter from Charles Pinckney to Matthew Carey (Aug. 10, 1788), in SUPPLEMENT TO
MAX FARRAND’S RECORDS OF THE FEDERAL CONVENTION OF 1787, at 296, 296 (James H. Hutson
ed., 1987) [hereinafter SUPPLEMENT].
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of the pamphlet, “Observations,” was a mistake; it should have made clear
that it was “a speech at opening the system.”
70
Since nearly every scholar is in
agreement that the “Observations” was not a speech delivered when
Pinckney presented his Plan, this was clearly untrue.
71
He went on to tell
Carey that he was “sorry it is not in my power to procure [a copy of the
Plan] for you.”
72
He told a very different story exactly three decades later.
In 1818, Secretary of State John Quincy Adams was preparing the first
publication of the official Journal records of the Constitutional Convention.
William Jackson, the Convention’s secretary, had indicated that the
Pinckney Plan was submitted on May 29, yet Jackson had failed to include a
copy of it or, indeed, any of the plans of government submitted that
summer. Adams had no difficulty acquiring copies of the Virginia and New
Jersey Plans, but after his initial attempts to acquire a copy of the Pinckney
Plan bore no fruit, he wrote to Pinckney asking if he could supply one.
Pinckney responded immediately: “From an inspection of my old papers
not long ago I know it was then easily in my power to have complied with
your request.”
73
When he was able to return to his papers two weeks later,
he wrote again that he had found “several rough draughts of the
Constitution I proposed to the Convention,” though they differed
somewhat in wording and arrangement; nevertheless, he repeatedly assured
Adams that the differences were immaterial, since the drafts “were all
substantially the same.”
74
He sent to Adams “the one I believe was it.”
75
Adams published the plan that Pinckney sent to him, along with the rest of
the records, in December of the following year, and most people reading
the Journal records in 1820 would have no reason to doubt its authenticity.
But it would not be long before doubts were raised, especially in the mind
70
. Id.
71
. Cf. Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA L. REV. 421,
431 (2009) (claiming that the question about “the truth or falsity” of the “Observations’” claim to
represent the original Plan “can likely be put to a rest,” since Pinckney’s title page states that the
contents were delivered at different times during the Convention). As with so many of Pinckney’s
claims, few will put the question of truth or falsity finally to rest, since his claims changed so often over
time.
72
. Letter from Charles Pinckney to Matthew Carey (Aug. 10, 1788), supra note 69, at 296.
73
. Letter from Charles Pinckney to John Quincy Adams (Dec. 12, 1818), in 3 THE WRITINGS
OF JAMES MADISON: 1787, THE JOURNAL OF THE CONSTITUTIONAL CONVENTION 22, 22 n.2
(Gaillard Hunt ed., 1902).
74
. Letter from Charles Pinckney to John Quincy Adams (Dec. 30, 1818), in 3 RECORDS, supra
note 44, at 427, 427.
75
. Id. at 428.
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of the longest-living Framer of the Constitution and the keeper of the best
records of the Convention, James Madison.
C. History of the Scholarship on the Lost Plan
In a private conversation with historian Jared Sparks in 1830, Madison
confided that he was bewildered when he first saw Pinckney’s 1818 Plan,
since he knew it could not be the one submitted in 1787.
76
He claimed to
Sparks that “he intended to write to Mr. Pinckney asking, and even
requiring, an explanation; but Mr. Pinckney died, and the opportunity was
lost.”
77
Some scholars have found this explanation less than satisfactory.
78
Madison received two copies of the Journal in 1820; we know he started
looking over the records that same year; and Pinckney’s death was in 1824.
Be that as it may, Madison never did confront Pinckney during his lifetime,
so we have no way of knowing how Pinckney might have responded.
Nevertheless, within the last few years before Madison’s death in 1836,
numerous correspondents began communicating to him their own doubts
and suspicions about the authenticity of the Plan.
79
Since Madison spent
76
. See Jared Sparks, Journal (Apr. 19, 1830), in 3 RECORDS, supra note 44, at 478, 479 (“Mr.
Madison seems a good deal perplexed on the subject. . . . How it happened that it should contain such
particulars as it does, Mr. Madison cannot tell; but he is perfectly confident that they could not have
been contained in the original draft as presented by Mr. Pinckney, because some of them were the
results of subsequent discussions.”).
77
. Id. at 480.
78
. See Ulmer, James Madison, supra note 23, at 423 (hearing “a strange ring” in Madison’s
explanation for not confronting Pinckney). Ulmer’s suspicions are likely overly harsh. Sparks reported
in his Journal that Madison seemed very embarrassed by the whole subject, and that reaction seems
only too natural—especially during a time when openly accusing a man of lying could lead to a duel.
Jared Sparks, Journal (Apr. 19, 1830), supra note 76, at 480. Therefore, I count it as among history’s
misfortunes that Madison never followed through on his intention to confront Pinckney during his
lifetime, but it seems to me neither surprising nor suspicious that he put off the awkward confrontation
until it was too late.
79
. See Letter from Jared Sparks to James Madison (May 5, 1830), in 3 RECORDS, supra note 44,
at 482, 482 (reporting how John Quincy Adams told him that Massachusetts Framer Rufus King had
also questioned the Plan before his death); Letter from Jared Sparks to James Madison (Nov. 14, 1831),
in 4 DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1786–
1870, at 372, 372–74 (1905) (saying Sparks’ “mind has got into a new perplexity” regarding some
additional suspicious features he noticed in “Pinckney’s Draft of a Constitution”) [hereinafter
DOCUMENTARY HISTORY]; Thomas S. Grimké to James Madison, 25 March 1834, FOUNDERS ONLINE
(Mar. 25, 1834), http://founders.archives.gov/documents/Madison/99-02-02-2958
[https://perma.cc/TH6S-B2SB] (stating how the account of the Pinckney Plan Madison sent to
Grimké “confirms the vehement suspicion I have always had” that it could not be genuine); William
A. Duer to James Madison, 25 April 1835, FOUNDERS ONLINE (Apr. 25, 1835),
http://founders.archives.gov/documents/Madison/99-02-02-3119 [https://perma.cc/66TX-A8KC]
(asking Madison to account for the strange discrepancy Duer had noticed: that the Pinckney Plan which
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his last remaining years arranging for the posthumous publication of his own
records of the Convention’s debates, he was forced to decide how he would
address the subject of the Lost Pinckney Plan of 1787 and the spurious
1818 Plan.
It is at this point that the history of the Pinckney Plan intersects with the
history of the scholarship on the Pinckney Plan. Madison, who was one of
the main actors in this little drama, also launched the first research project
on the Lost Plan. He recollected that, shortly after the Constitutional
Convention had concluded, Pinckney had sent him copies of his pamphlet,
the “Observations” on his Plan, and Madison believed that a close
comparison of Pinckney’s 1787 account and his 1818 version might shed
light on the subject.
80
However, when he checked his own papers, he found
that the old copy he retained was “so defaced & mutilated” that it was
unreadable.
81
Since it had originally been printed in New York, he sought
another copy from a friend living there, J. K. Paulding. Paulding located
and sent him a copy, and Madison immediately set to work examining the
1818 Plan in minute detail. In seven manuscript pages divided into two
columns, he noted numerous differences between the plan which Pinckney
described in 1787 and the one he submitted to Adams in 1818.
82
By the
time he completed his research project, he had compared the content of the
1818 Plan to: (1) Pinckney’s 1787 “Observations;” (2) his speeches during
the Convention; and (3) even a letter Pinckney wrote to Madison in 1789.
He noted several inconsistencies between the 1818 Plan and the opinions
Pinckney had expressed during and immediately following the Convention,
all tending to cast doubt on the authenticity of the 1818 Plan.
From Madison’s replies to various correspondents, it is clear that he
genuinely struggled with the question of what to do with his conclusions
regarding the spurious 1818 Pinckney Plan. He repeatedly appealed to the
the Journal reported as being read on May 29 “was so full & extensive,” yet in the records of the
proceedings as reported by Robert Yates, it seemed the Plan was never “referred to in the subsequent
debates”).
80
. Letter from James Madison to J. K. Paulding (Apr. 1831), in 3 RECORDS, supra note 44,
at 501, 501.
81
. Id.
82
. Image 605 of James Madison Papers: Subseries 5e, James Madison’s Original Notes on
Debates at the Federal Constitutional Convention, 1787, LIB. OF CONG.,
https://www.loc.gov/resource/mss31021a.01x01/?sp=605 [https://perma.cc/FYQ4-FXV6]
(identifying the pages relating to Pinckney’s plans, beginning on image 605 and continuing through
611). A transcript can be found in James Madison on the Pinckney Plan, in 3 RECORDS, supra note 44,
at 504, 504–13.
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“delicacy” of the topic, and he asked his correspondents to keep the
information he provided them private, or at least not to name him as a
source if they repeated any of it.
83
On the one hand, Madison had personal
reasons for keeping Pinckney’s indiscretions a secret: “I knew Mr. P. well,”
he wrote just two years before he died, “and was always on a footing of
friendship with him;” on the other hand, Madison also believed that this
personal “consideration ought not to weigh against justice to others, as well
as against truth on a subject like that of the Constitution of the U. S.”
84
Shortly before his death he evidently made up his mind. He decided to
reprint Pinckney’s 1818 Plan along with the rest of his records for May 29
within the Convention Debates that would be published posthumously.
However, he drafted a short refutation to the Plan, which he indicated
should be printed as an appendix. In it, he repeated only the most
compelling discrepancies he had found when comparing the 1818 Plan and
Pinckney’s earlier opinions. Madison never breathed even a hint of a
suggestion that the 1818 Plan was an intentional fraud; instead, he explained
how “considerable error had crept into the paper,” and he provided
numerous excuses to account for the possibility of Pinckney’s “error”: the
confusion of different drafts, subsequent “erasures and interlineations,” and
a faulty memory “after a lapse of more than thirty years.”
85
For the most part, the appendix that Madison wrote on Pinckney’s
1818 Plan had its intended effect. At least, for the next sixty years after the
publication of Madison’s writings in 1840, all subsequent allusions to
Pinckney’s 1818 Plan fell into two categories: there were those who were
apparently oblivious that Madison had written a refutation (and who
therefore treated the 1818 Plan as genuine), and there were those who had
read Madison’s refutation and were convinced by it (and who therefore
83
. Letter from James Madison to J. K. Paulding (Apr. 1831), supra note 80, at 501; see Letter
from James Madison to Jared Sparks (Nov. 25, 1831), supra note 55, at 514–15 (requesting of Sparks,
“may it not be best to say nothing of this delicate topic relating to Mr. Pinckney, on which you cannot
use all the lights that exist and that may be added?”); see also Letter from James Madison to Thomas S.
Grimké (Jan. 6, 1834), in 3 RECORDS, supra note 44, at 531, 531–32 (writing to Grimké, “it is my wish
that what is now said of it may be understood as yielded to your earnest request, and as entirely confined
to yourself”); James Madison to William A. Duer, 5 May 1835, FOUNDERS ONLINE (May 5, 1835),
http://founders.archives.gov/documents/Madison/99-02-02-3123 [https://perma.cc/N3RA-
LDXU].
84
. Letter from James Madison to Thomas S. Grimké (Jan. 6, 1834), supra note 83, at 532.
85
. James Madison, Note of Mr. Madison to the Plan of Charles Pinckney, May 29, 1787, in 3 THE
PAPERS OF JAMES MADISON app. 2 at v, vi (Henry D. Gilpin ed., Langtree & O’Sullivan 1840).
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discounted the authenticity of the 1818 Plan altogether).
86
Hence we find
that, on the one hand, Chief Justice Fuller cited Pinckney’s 1818 Plan as if
it were an authoritative source in his 1895 decision in Pollock v. Farmers’ Loan
& Trust Co.
87
However, on the other hand, this decision was immediately
followed by a sharply worded rebuke in The Nation from Paul Leicester Ford.
Relying on Madison’s analysis, Ford argued that the 1818 Plan, “instead of
being quoted by our Supreme Court, should be relegated to the repository
of historical lies.”
88
Thus, the turn of the century would seem to have lain
to rest all of Pinckney’s latter-day professions to be the primary author of
the Constitution.
The first few years of the twentieth century did not hold out much
promise for resurrecting Pinckney’s reputation; indeed, it seemed destined
to sink still lower. Gaillard Hunt, the editor of the nine-volume Writings of
James Madison, sought out the original 1818 correspondence between John
Quincy Adams and Charles Pinckney. In 1902, he reported that the paper,
ink, penmanship, and watermarks of the sheets on which Pinckney wrote
his Plan of Government matched those of his 1818 letter to Adams.
89
The
watermarks on all the sheets bore the date 1797.
90
Therefore, Pinckney
could not have been telling the literal truth when he claimed that he was
sending Adams one of several “draughts” in his possession from among his
Convention papers; it was clear, at a minimum, that Pinckney had drafted a
copy contemporaneously with his letter to Adams. Since the contents of
that Plan already seemed doubtful to many, Hunt’s discovery seemed to add
additional fuel to the suspicion that Pinckney had manufactured, rather than
merely copied, the plan he sent to Adams in 1818.
The following year, John Franklin Jameson published his monumental
“Studies in the History of the Federal Convention of 1787,”
91
twenty pages
of which was entirely devoted to “The Text of the Pinckney Plan.”
92
It was
the first scholarly treatment of the Lost Plan since Madison’s appendix,
published in 1840. After Jameson surveyed the history of the Pinckney Plan
86
. Jameson, Studies, supra note 49, at 112–17 (providing a helpful survey of the nineteenth-
century allusions to the Pinckney Draft).
87
. Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 562 (1895).
88
. Paul Leicester Ford, Pinckney’s Draft of a Constitution, 60 NATION 458, 458–59 (1895).
89
. MADISON, supra note 73, at ix, xvi–xvii.
90
. Gaillard Hunt, The Journals of the Constitutional Convention (Introduction), in 3 THE
WRITINGS OF JAMES MADISON: 1787, THE JOURNAL OF THE CONSTITUTIONAL CONVENTION, supra
note 73, at ix, xvi–xvii.
91
. Jameson, Studies, supra note 49.
92
. Id. at 111–32.
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up to that point, he added additional reasons for discrediting the 1818 Plan.
This aspect of his study is important, and unfortunately it has been largely
forgotten today. In a cruel twist of fate, Jameson’s best analysis (the
definitive debunking of the 1818 Plan) was ignored by Pinckney’s admirers,
who later sought to resurrect the credibility of the spurious plan; yet his
single important error (the misidentification of the Wilson manuscript) was
accepted without scrutiny and would become the catalyst for numerous
future errors.
Notably, Jameson believed that the 1818 Plan was already so thoroughly
discredited that this contribution was unnecessary. “That the so-called
‘Pinckney plan’ is not authentic has been so publicly and so successfully
demonstrated,” he wrote, “that a writer who does not like to spend his time
in slaying the slain might be excused if he took this for granted and passed
on to cast what new light he could upon the problem of the real Pinckney
plan.”
93
Nevertheless, Jameson did have additional arguments to make,
compelling ones, based on newly available papers from the Committee of
Detail. Jameson demonstrated not only that the 1818 Plan was not a
genuine copy of the original; he convincingly showed that the whole thing
was largely plagiarized from the Committee of Detail Report.
94
These
arguments were so convincing, in fact, that his five pages of closely-reasoned
disemboweling of Pinckney’s late-life professions seemed destined to pound
the final nail into the coffin which was to forever inter the credibility of the
1818 Plan. The scholarship over the next hundred years would have
surprised him.
Jameson’s primary reason for writing about the Pinckney Plan, however,
was not to bury the dead; rather, he was endeavoring, “by critical methods
which he believes to be more rigid than those hitherto pursued, and in part
novel, to reconstruct the actual text of that long-lost project.”
95
In other
words, his original intention was to provide his readers with a plausible
recreation of a document that was no longer extant, drawn from everything
that could be known about Pinckney’s Plan from contemporaneous sources.
What he actually provided, however, was far more exciting. Jameson
described in dramatic fashion how, when his work “was nearly completed,
chance brought forward an incomplete but contemporary text of the
original document itself.”
96
The entire manuscript was in James Wilson’s
93
. Id. at 112–13.
94
. Id. at 123–28.
95
. Jameson, Portions of Pinckney’s Plan, supra note 46.
96
. Id.
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handwriting, and the first half was clearly an extract of the New Jersey Plan.
Jameson “easily identified” the second half “as parts of the much-sought
Pinckney plan.”
97
Although he was writing on numerous topics about the
Federal Convention, Jameson believed that his examination of the Pinckney
Plan, especially when joined with the new manuscript discovery, was “the
most important” contribution he had to make.
98
Since Jameson published his findings, no one has ever questioned how it
was that he “could see at the first glance” that the second half of this
manuscript was from Pinckney’s Plan.
99
On the contrary, later scholars
characterized Jameson’s identification of Pinckney’s extract as “a piece of
brilliant criticism”
100
and “a fine piece of close textual analysis.”
101
Yet, in
reality, there are troubling aspects to Jameson’s hasty conclusion that this
manuscript was drawn from the Lost Plan. According to his account, the
manuscript he found perfectly matched his earlier predictions (before the
discovery) of what it would contain. He described how he felt “like some
watcher of the skies . . . before whose telescope appears an asteroid which
pursues exactly the orbit that he had predicted.”
102
That description is a
little perplexing, however, since very little of what he had predicted would
be in the Pinckney Plan is actually found in the manuscript he discovered,
and very little of the provisions in the manuscript he discovered had been
anticipated by Jameson before he found it. In his conclusion, he did little
more than assert that his discovery was an extract of the Lost Plan.
In light of the new manuscript, Jameson concluded by offering a mild
boost to Pinckney’s deflated reputation. He believed “that as a maker of
the Constitution Charles Pinckney evidently deserve[d] to stand higher than
he ha[d] stood of late years, and that he would have [had] a better chance of
doing so if in his old age he had not claimed so much.”
103
Owing almost
entirely to the renewed appreciation of the long-lost Pinckney Plan by so
eminent a historian as John Franklin Jameson, Pinckney’s star was now on
97
. Jameson, Studies, supra note 49, at 128.
98
. Id. at 90.
99
. Jameson, Portions of Pinckney’s Plan, supra note 46, at 510.
100
. Max Farrand, Appendix D: The Pinckney Plan, supra note 66, at 604.
101
. Ewald, The Committee of Detail, supra note 64, at 206. Despite Ewald’s evident endorsement
of Jameson’s identification of the Pinckney Plan, it is important to note that he repeatedly states in the
same article that the Plan “raises subtle issues,” yet he says that he will defer any discussion of those
“issues” until a later time. Id. at 215, 220, 279.
102
. Jameson, Studies, supra note 49, at 128.
103
. Id. at 132.
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the rise. And the reputations of both the man and his Plan would eventually
reach a zenith that might have satisfied even Pinckney’s overweening vanity.
Just one year after the 1903 discovery, Andrew McLaughlin turned up the
heat on Jameson’s tepid praise of Pinckney after he published what he
believed to be a second extract that Wilson made of the same Plan.
McLaughlin never doubted for a moment that Jameson might have been
mistaken when identifying the first Wilson manuscript; indeed, he claimed
that his finding “confirms the conclusion, if confirmation were needed,”
that Jameson’s manuscript was simply another (probably later) extract of the
same plan.
104
In retrospect, McLaughlin’s judgment seems a little odd,
since the two manuscripts actually have very little in common; consequently,
his unexplained “confirmation” is far from self-explanatory.
When the two manuscripts were combined, the collective provisions now
attributed to Pinckney’s Plan represented a significant contribution to the
U.S. Constitution. McLaughlin estimated that Pinckney’s Plan was
responsible for “some thirty-one or thirty-two provisions which were finally
embodied in the Constitution.”
105
But even that estimate did not seem to
do Pinckney justice. McLaughlin believed that some of the annotations
made by John Rutledge in the Committee of Detail papers might also owe
their origin to the Pinckney Plan.
106
He also noted that, since the
manuscript he discovered resembled in key places the “Observations” that
Pinckney published shortly after the Convention, more credence should be
given to that document.
107
(However, it should be remembered that no
one ever doubted that Pinckney’s 1787 “Observations,” like his 1818 Plan,
contained elements from the real Plan; the pesky question has always been:
to what degree might Pinckney have embellished his Plan after the fact?) In
short, McLaughlin concluded: “It must not be assumed that we know all
that Pinckney thus contributed to the fabric of the Constitution. . . . [O]ther
portions of the Constitution might be pointed to as coming from the
ingenious and confident young statesman from South Carolina.”
108
The first few years of the twentieth century were thus a series of
momentous revelations about the Lost Pinckney Plan—revelations which
at first threatened to plunge Pinckney’s reputation into the nether regions
before they reversed course and catapulted him into the stratospheric
104
. McLaughlin, Sketch of Pinckney’s Plan, supra note 46.
105
. Id. at 741.
106
. Id. at 739–40.
107
. Id. at 736.
108
. Id. at 741.
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heights of our Founding heroes. Almost all subsequent scholarship on
Pinckney’s role in the Constitution’s formation was transformed. Some of
these developments were predictable, but others were surprising. The
predictable developments include the rise in stature of Pinckney’s presumed
contributions to the Constitution. When Max Farrand attempted a
reconstruction of the actual Pinckney Plan for his magisterial Records of the
Federal Convention of 1787, he took his cue entirely from McLaughlin.
109
Not
only did he draw from both Wilson manuscripts now attributed to Pinckney;
he also included portions from Pinckney’s “Observations,” portions from
some proposed amendments to the Articles of Confederation that Pinckney
had drafted in 1786, and (somewhat more surprising) parts of the New York
Constitution. Farrand’s reconstruction of the Pinckney Plan was, in short,
exceedingly generous to Pinckney; nevertheless, it has sometimes been cited
as if it were one of the authoritative records from the 1787 Convention.
110
Also unsurprising is the number of constitutional clauses which have
subsequently been attributed to Pinckney: later tallies have generally
followed McLaughlin’s lead. Although his estimate that Pinckney’s Plan
contributed “some thirty-one or thirty-two provisions”
111
has fluctuated
slightly over the years, most scholars have hovered around that number ever
since. The writer of Pinckney’s epitaph was being conservative when he
attributed “at least twenty-five provisions” to Pinckney.
112
Sydney Ulmer
found “thirty provisions of the Constitution contained in the Pinckney
plan,” and numerous histories have followed Ulmer’s accounting
method.
113
Jared McClain was one such follower, but he inadvertently
109
. Max Farrand, Appendix D: The Pinckney Plan, supra note 66, at 604–09.
110
. See MICHAEL KAMMEN, THE ORIGINS OF THE AMERICAN CONSTITUTION:
A DOCUMENTARY HISTORY 25–30 (1986) (reproducing Farrand’s reconstruction as if it were part of
the documentary history of the Constitution); MATTHEWS, supra note 12, at 44–45 (relying on
Kammen’s reproduction of Farrand’s reconstruction when delineating the contents of Pinckney’s
Plan); Tyler Pipe Indus. v. Wash. Dep’t. of Revenue, 483 U.S. 232, 261 (1987) (Scalia, J., concurring in
part) (referencing a law review article by Albert S. Abel, who in turn is relying on Farrand’s recreated
plan (citing Albert S. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment,
25 MINN. L. REV. 432, 434 & n.6 (1941))).
111
. McLaughlin, Sketch of Pinckney’s Plan, supra note 46, at 741.
112
. THORNWELL JACOBS, THE UNVEILING OF THE MEMORIAL LEDGER TO CHARLES
PINCKNEY 21 (1949). The grave marker was laid in St. Philips churchyard in downtown Charleston
(142 Church Street) sometime in the middle of the last century. Id. at 7–8.
113
. Ulmer, Charles Pinckney, supra note 23, at 244; Drafting and Ratifying the Constitution in THE
PAPERS OF THE REVOLUTIONARY ERA PINCKNEY STATESMEN DIGITAL EDITION (Constance B.
Schulz ed., Univ. of Va. Press, Rotunda 2016)
https://rotunda.upress.virginia.edu/founders/default.xqy?keys=PNKY-print-01-01-01-0005-0003
[https://perma.cc/YDX9-J7PP] (relying entirely on Ulmer’s analysis).
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knocked off two from the final tally, wrongly stating that “Ulmer concluded
that twenty-eight provisions in the Constitution originated in Pinckney’s
draft.”
114
Some authors have repeated the raw numbers given by McLaughlin or
Ulmer, but they inadvertently inflated the importance of Pinckney’s Plan
because they misunderstood what those numbers represented. When
McLaughlin and Ulmer counted constitutional “provisions” which were
ostensibly derived from Pinckney’s Plan, they were often referring to short
clauses or even single words (such as crediting Pinckney’s Plan for naming
the chief executive the “president”). Therefore, while the number might
seem high, the proportion of constitutional text actually attributed to
Pinckney was still quite small. Andrew Bethea and Theodore Jervey,
however, divided the entire Constitution into paragraphs and claimed that
Pinckney was the source for more than a third of them. Thus, we find
Bethea attributing “thirty-one or thirty-two” out of the “eighty provisions”
in the Constitution to Pinckney;
115
and Jervey claiming “that of its eighty-
four provisions [in the Constitution], no less than thirty-two, and probably
more, were incorporated at his suggestion.”
116
Richard Barry, employing
an accounting method that he does not explain and which is by no means
clear, finds that the Pinckney Plan can be found “[in] practically half of the
final document.”
117
None of these authors quite matched Pinckney’s own
claim that “more than three-fourths” of the Constitution was “in the very
words of my plan,”
118
but they were edging ever closer to Pinckney’s own
grandstanding.
Since reputable scholars now attributed both Wilson manuscripts to
Pinckney, not to mention relying more on his “Observations,” it was not
surprising that many subsequent scholars would begin hailing Pinckney as
an unsung hero of the Constitutional Convention. What was surprising,
however, was the way this scholarship resurrected the credibility of the
1818 Plan. The best-informed scholars on the records of the Federal
Convention, such as McLaughlin and Farrand, believed that Jameson’s
114
. Jared McClain, An Analysis of Charles Pinckney’s Contributions at the Constitutional Convention of
1787, 24 J. S. LEGAL HIST. 1, 7 (2016).
115
. BETHEA, supra note 21, at 64.
116
. Theodore D. Jervey, Robert Y. Hayne and His Times 2–3 (The MacMillan Co. 1909).
117
. RICHARD BARRY, MR. RUTLEDGE OF SOUTH CAROLINA 314 (1942) (finding the
Constitution “has sixty components,” of which “twenty-nine appeared in that first version as written
by Charles Pinckney”).
118
. Letter from Charles Pinckney to Robert Y. Hayne (Mar. 31, 1821), supra note 16.
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arguments had demolished forever Pinckney’s later embellishments. These
three united as if with one voice to proclaim that the 1818 Draft was no
better than a fraud.
119
Nevertheless, that message was drowned out in the
rush to bestow on Pinckney the accolades that had so long been denied.
Almost immediately after Jameson and McLaughlin brought their
manuscript discoveries to light, a succession of books were published, all
touting Pinckney’s 1818 fabrication as if it were authentic, or at least nearly
so.
120
Nott, a retired Chief Justice of the U.S. Court of Claims, even floated
an imaginative theory purporting to explain the disappearance of the Lost
Plan. The Committee of Detail, he speculated, had used Pinckney’s Plan as
a “printer’s copy;” that is, after its members made a few minor changes
directly onto the draft of Pinckney’s Plan, they submitted this manuscript to
the printers, who used it to typeset the broadsides which were distributed as
the Committee of Detail Report.
121
The printers, after they finished
typesetting the (only slightly modified) Pinckney Plan, presumably discarded
the original. Nott’s account thus explained both the original Plan’s
disappearance and the uncanny resemblance between the 1818 Plan and the
Committee’s Report. Nott’s speculations were strained to the breaking
point, but Taylor would pay them the highest compliment possible: he
would describe them as forming a united front with Jameson’s painstaking
analysis which, he claimed, both vindicated the 1818 Plan. According to
Taylor, the united efforts of Jameson and Nott “have, in a luminous and
convincing way, demonstrated the genuineness of the copy of that all-
important plan furnished by Pinckney to the Secretary of State in 1818.”
122
Jameson, it should be remembered, believed he had definitively established
that it could not be genuine.
The trio of books that came out in these early decades after the
manuscript discoveries were all so obviously partisan that, if the mania had
stopped there, they might have made no significant impact on subsequent
scholarship. One unnamed reviewer of Nott’s book declared that he
remained “somewhat skeptical” that Judge Nott had made a convincing case
for Pinckney; he reminded readers that Jameson had, only a few years earlier,
119
. Jameson, Studies, supra note 49, at 124; McLaughlin, Sketch of Pinckney’s Plan, supra note 46,
at 736; ANDREW C. MCLAUGHLIN, A CONSTITUTIONAL HISTORY OF THE UNITED STATES 157–58
(D. Appleton-Century Co., Inc. 1935); Max Farrand, Appendix D: The Pinckney Plan, supra note 66,
at 603–04.
120
. NOTT, supra note 19; TAYLOR, supra note 20; BETHEA, supra note 21.
121
. NOTT, supra note 19, at 111.
122
. TAYLOR, supra note 20, at 9.
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“confirmed” the opinion of leading lights that the 1818 Plan was not
authentic.
123
But the tide turned definitively in the 1950s, when Sydney
Ulmer wrote a pair of articles defending the 1818 Plan and accusing
Madison of trying to discredit it through envy.
124
His methods of
establishing its credibility were questionable, but even more dubious was his
failure to engage with the most serious arguments that had been advanced
to discredit it. Ulmer claimed that, since Madison published his appendix,
“not a single critic has come up with a criticism” of the 1818 Plan.
125
Even
more unaccountably, he accused Jameson of providing no reasons for
doubting its integrity: “To make or imply the charge of fraud lacking
conclusive evidence is a nadir to which even Madison never sank. But that
is precisely what Jameson, Farrand and others do.”
126
Ulmer not only
ignored Jameson’s five pages of original and closely reasoned textual analysis
debunking the 1818 Plan; he flatly denied their existence. Ulmer’s charge,
though disingenuous, was effective. Since his articles were published more
than a half century ago, there has been a near-total amnesia among scholars
that Jameson’s 1903 analysis had convincingly discredited Pinckney’s
1818 Plan.
127
Few of Pinckney’s admirers have even acknowledged
Jameson’s arguments against the 1818 Plan; thus far, none have attempted
to refute them. Ulmer’s interpretation of the Pinckney Plan reigns supreme
in scholarship today.
128
By the twenty-first century, we thought we at least understood all that was
mysterious about the Lost Pinckney Plan, but in 2016 Margie Burns
discovered yet another mystery.
129
She found that the first edition of the
Documentary History of the Constitution of the United States of America (Documentary
History), allegedly published in 1894, had actually been printed as two
separate and distinct editions spaced at least eight years apart. Most
123
. Who Drafted the Federal Constitution?, 22 GREEN BAG: AN ENTERTAINING MAG. L.
131, 131 (Feb. 1910).
124
. Ulmer, Charles Pinckney, supra note 23, at 245; Ulmer, James Madison, supra note 23, at 426.
125
. Ulmer, Charles Pinckney, supra note 23, at 237.
126
. Id. at 246.
127
. See McClain, supra note 114, at 17 (following Ulmer, likewise claiming that “little has since
been added” after Madison’s criticism of the 1818 Plan).
128
. See generally Drafting and Ratifying the Constitution, supra note 113 (following Sidney Ulmer’s
interpretation of the 1818 Plan). This essay about Pinckney’s contributions to the Constitution relies
entirely on Ulmer’s 1956 PhD dissertation, but the analysis of the Pinckney Plan found in that source
is identical to Ulmer’s later articles. The Pinckney Statesmen editors make no mention of Jameson’s
scholarship or the lingering controversy over the 1818 Plan.
129
. Margie Burns, The Mystery of Charles Pinckney’s Draft of the U.S. Constitution Revisited, 117 S.C.
HIST. MAG. 184, 184 (2016).
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intriguing of all, the two editions both included a “Pinckney Plan,” yet the
two versions of this “Plan” were notably different. Doing a “line-by-line
comparison” of the two versions,
130
she discovered “hundreds of
minuscule differences” between them.
131
The second version was clearly
an exact transcript of the 1818 Plan that Pinckney had enclosed in his letter
to Adams. What, then, was the first? She indulges in “[t]he most attractive
possibility,”
132
to wit: the editors of the Documentary History had discovered
among their papers an authentic copy of Pinckney’s 1787 Plan, which they
had published in their first printing. For some inexplicable reason, the
editors chose to replace the “1787 Pinckney manuscript”
133
with the less
authentic 1818 Plan in their second printing, and that original 1787
manuscript—the one they had ostensibly relied on for their first version—
has since disappeared. Burns concludes her article with numerous
provocative speculations to explain what might have happened: “Did
official evaluation of Pinckney change so much from 1894 to 1901 that
archivists in effect suppressed the superior earlier text? Did they throw it
away, by accident or intent?”
134
She notes that earlier historians were more
under the influence of James Madison; however, “since the mid-twentieth
century [they] have been far more willing to credit Pinckney in framing the
U.S. Constitution.”
135
Never were truer words spoken.
For scholars who are knowledgeable about the documentary history of
the Federal Convention, the mystery that Burns weaves is not actually
mysterious at all. Even the internal evidence provided in her article is
sufficient to explain what really happened. The most important clue was
provided by the editors of the Documentary History themselves, who did not,
as it happens, leave their readers to wonder why they had published a
different version of the “Pinckney Draught” in their later printing. In a
marginal notation at the outset of the Pinckney papers, they explained that
they had only “recently found” the letter from Pinckney to Adams “and its
accompanying draft of a Constitution;” therefore, they were printing a
transcript from those documents; they went on to say that these texts would
“replace the copy of the draft made by Mr. Adams’ direction,” which is what
130
. Id. at 192.
131
. Id. at 195.
132
. Id. at 191.
133
. Id.
134
. Id. at 204.
135
. Id.
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they had originally printed in “the first edition of this volume.”
136
In other
words, the only difference between the two versions was that the later one
was a verbatim copy taken directly from Pinckney’s 1818 manuscript,
whereas the first printing had reproduced Adams’ 1819 copyedited
transcription of Pinckney’s 1818 Plan.
Every circumstance that Burns unearths from her meticulous research
only serves to confirm that the editors of the Documentary History had given
an accurate account of the two versions. Those “hundreds” of distinct
discrepancies she found between the two plans amount to nothing more
than the changes that any careful editor would perform when cleaning up
an author’s sloppy manuscript. Adams had apparently normalized
Pinckney’s erratic punctuation and capitalizations; he had corrected his
misspellings and grammatical errors; he had spelled out scores of
ampersands and abbreviations; he had integrated Pinckney’s marginal and
superscripted insertions into the body of the text; and he had introduced
regular indentation.
137
Other than these “hundreds” of trivial corrections
to Pinckney’s original, there was no difference between the two drafts. After
the editors of the Documentary History found the authentic manuscript of
Pinckney’s 1818 Plan, they replaced Adams’s sanitized version and left all of
Pinckney’s grammatical errors and idiosyncrasies scrupulously intact for
their second printing.
Burns herself reveals one of the most important clues establishing that
the difference between the two drafts was exactly what the editors had
claimed it was. She observes that the first version they published matches
exactly the “Pinckney Plan” that Adams published in 1819. Burns
speculates, contrary to all evidence, that Adams had actually been in
possession of a genuine copy of Pinckney’s 1787 Plan among the other State
Department papers, and he had printed that authentic version in 1819.
138
136
. Appendix, in 1 DOCUMENTARY HISTORY, supra note 79, at 309 (1894) (emphasis added);
see also Burns, supra note 129, at 191 (reprinting the same marginal note by the editors, but emphasizing
other sections of the text and ignoring what the editors said about the document they had included in
the first printing).
137
. Burns, supra note 129, at 192–93.
138
. Id. at 186, 188, 191 (speculating that Pinckney may have turned his Plan over to the State
Department at the same time that Washington deposited the Journal records there); Id. at 201–203,
203 n.52 (noting that the earliest publication of what she calls the “1787 Pinckney Draft” was in the
Journal published by Adams, confirming that this draft is identical to the first version printed in the
Documentary History, and indulging in a wild speculation about how the State Department possessed an
authentic copy of the Pinckney Draft in 1819, but Adams “fear[ed]” Madison’s displeasure if he openly
acknowledged his association with this project).
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Yet that account is contradicted by Adams, who stated on multiple
occasions throughout his life that the Pinckney Plan that was published
along with the other Journal records was the one that Pinckney sent him in
1818.
139
Adams not only told Jared Sparks in 1830 that he had printed the
plan that Pinckney sent to him; he also added “that he has never been able
to hear of another copy.”
140
Once Burns had discovered that the first
version published by the 1894 Documentary History was an exact replica of the
version Adams had published in 1819, that discovery should have cleared
up any vestiges of the mystery that yet remained. Every reference that Burns
makes in her article to the so-called “1787 Pinckney manuscript,”
141
or the
“1787 version” of the Pinckney Plan
142
—which she contends was a
manuscript possessed by the Adams State Department in 1819 and later
acquired by the editors of the Documentary History in 1894, before
suspiciously disappearing—is pure fantasy. There are simply no grounds
for supposing that the State Department ever possessed such a manuscript.
The most recent scholarship on the Pinckney Plan thus brings modern
researchers full circle back to the condition that unsuspecting readers would
have been placed 200 years ago: they would be led to believe that the
Pinckney Plan published in 1819 with the rest of the Journal records was
the very one that Pinckney had proposed to the Constitutional Convention
in 1787. In reviewing the most recent accounts of the Pinckney Plan, it
almost seems as if the most important and valid scholarship on the Pinckney
Plan—which primarily took place between 1830 and 1903 (in the first
century after the bogus 1818 Plan was published)—has vanished, and only
139
. See John Quincy Adams, Advertisement, in Journal, Acts and Proceedings of the Convention,
Assembled at Philadelphia, Monday, May 14, and Dissolved Monday, September 17, 1787, Which
Formed the Constitution of the United States 5, 11
(John Quincy Adams ed., Thomas B. Wait 1819) (giving an account of where the documents contained
in the volume were procured, and saying that “the plan of Mr. C. Pinckney . . . has been furnished by
him”); John Quincy Adams, Memoirs (May 13, 1819), in 3 Records, supra note 44, at 430, 430–431
(noting that he had written to Pinckney “and obtained a copy” of his Plan, which, with the rest of the
“papers suitably arranged, a correct and tolerably clear view of the proceedings of the Convention may
be presented”); John Quincy Adams, Memoirs (May 4, 1830), in 3 Records, supra note 44, at 481, 482
(relating a conversation Adams had with Jared Sparks about the Pinckney Plan, and retelling what
transpired in 1818 and 1819: “when I compiled the Journal of the Convention, Charles Pinckney
himself sent me the plan now in the book”); Jared Sparks, Journal (May 4, 1830), in 3 Records, supra
note 44, at 481, 481 (relating that same conversation with Adams, in which the latter told him about
how he had written to Pinckney requesting a copy of his Plan, “and received from him the one that is
printed”).
140
. Letter from Jared Sparks to James Madison (May 5, 1830), supra note 79.
141
. Burns, supra note 129, at 191.
142
. Id. at 191–92.
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the errors, misunderstandings, and Pinckney partisanship remain.
Sometimes, developments in historical research are not the same thing as
progress.
Since 1903, there have been numerous junctures where scholarship on
the Lost Pinckney Plan took a wrong turn. Nevertheless, Jameson’s twin
articles in that year are the cornerstone upon which all subsequent castles in
the air have been built. Ironically, scholars have largely ignored the most
compelling part of Jameson’s research on the Pinckney Plan while they have
accepted uncritically his most questionable claims. Jameson’s careful
demolition of the 1818 Plan has never even been acknowledged by
Pinckney’s admirers, much less refuted. Meanwhile, the claim that was
barely more than bare assertion—that he “could see at the first glance” that
the manuscript he discovered was derived from the very Lost Plan he was
then researching
143
—has been accepted without scrutiny from the time it
first appeared. It is long past due for a more critical examination of that
claim, for it appears that Jameson’s exciting discovery in 1903 was a case of
mistaken identity. And what began as an innocent mistake by an otherwise
careful historian eventually bourgeoned into a dense thicket of errors and
fallacious assumptions about Charles Pinckney and his Lost Plan.
III. CHALLENGING JAMESON’S IDENTIFICATION
A. The Superior Claims of McLaughlin’s Manuscript over Jameson’s
Jameson had undertaken such extensive and rigorous research on the
Lost Pinckney Plan that it somehow seemed fitting and decorous that he
should have been the one to discover a manuscript that was a
consummation and even vindication of the subject he spent so much time
investigating. After all, when he began his inquiries into the Plan, his
scholarly approach was cautious and restrained, an approach in keeping with
the entirety of his “Studies in the Federal Convention.” He initially warned
that the only reliable way to reconstruct the contents of Pinckney’s Plan was
to examine statements made about the Plan, or its author’s opinions on the
proposed Constitution, which had been recorded either shortly before or
within the first two weeks of the Convention.
144
Any of Pinckney’s
opinions expressed after about mid-June should be deemed less reliable as
143
. Jameson, Portions of Pinckney’s Plan, supra note 46, at 510.
144
. Jameson, Studies, supra note 49, at 117–20.
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a guide to the Plan he proposed on May 29.
145
Jameson regarded
Pinckney’s 1787 “Observations” and his 1818 Plan of little value and
worthless, respectively, for ascertaining the contents of the authentic
Plan.
146
However, this initial caution was thrown to the winds when, only
a few paragraphs from completing this section in his examination, Jameson
happened upon the fateful manuscript in Wilson’s handwriting, and he
“easily identified” the second half “as parts of the much-sought Pinckney
plan.”
147
This unabashed confidence seemed out of keeping with his prior
restraint. Indeed, the powers Wilson listed in the second half of the
manuscript that Jameson found bear little resemblance to the details of
Pinckney’s Plan as he had reconstructed them when adhering to his earlier
narrow criteria.
Still, the discovery he made in 1903 might to this day be considered a
strong contender for the Lost Plan were it not for McLaughlin’s discovery
the following year. Even if that discovery had never been made, an internal
examination of Jameson’s manuscript is sufficient to raise some doubts
about its authenticity. But it is when comparing his manuscript to the Plan
that McLaughlin found just a year later that Jameson’s tenuous claims to
have unearthed the real one seem to evaporate. McLaughlin’s 1904
discovery demonstrates that the muse of history does not always reward the
most deserving; for it would seem that Clio vouchsafed the real manuscript
discovery to someone who wasn’t searching for it and who had done less
original research on Pinckney’s Plan than Jameson.
Since the two manuscripts we are considering are both in James Wilson’s
handwriting, and since both have been identified as being extracts of
Pinckney’s Plan, they will here be distinguished from one another by the
names of their discoverers (in keeping with Jameson’s analogy of the
astronomer discovering an asteroid). The “Jameson Manuscript” refers only
to the second half of the Wilson document he found—the only part
purportedly drawn from Pinckney’s Plan. That portion is reproduced in
Appendix 1, and to aid references and comparisons, bracketed numbers
have been inserted before each clause. The “McLaughlin Manuscript” is
reproduced in its entirety in Appendix 2.
Before launching into the reasons for doubting Jameson’s identification
of the manuscript he found, it is worthwhile to give a precise account of
145
. Id.
146
. Jameson, Portions of Pinckney’s Plan, supra note 46.
147
. Jameson, Studies, supra note 49, at 128.
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what it is, as well as the best case that can be given for concluding that it
really was drawn from Pinckney’s Plan. This manuscript is a single sheet of
paper, written on both sides in James Wilson’s handwriting.
148
The first
three-fourths of the first side is plainly an extract of the New Jersey Plan,
but it is an extract that was constructed in a telltale way. Wilson was clearly
extricating only the powers listed in the Plan, not the structural details; even
more significant, he copied only those powers which he favored, and he
expunged those he deemed unworthy of inclusion in the Committee Report.
Although Wilson’s draft is considerably abridged from the original, it is
otherwise an almost perfect verbatim copy; there is no mistaking its origin.
After Wilson finished copying parts of the New Jersey Plan, there is a
noticeable break in the written text. Wilson then began a second list of
powers, and this list is continued on the back of the same page. It is this
second list of powers that Jameson believed was derived from Pinckney’s
Plan. And certainly, it is not an unreasonable supposition that, after distilling
what he considered to be the most desirable features to be found in one of
the plans deposited with the Committee of Detail, Wilson would proceed to
give Pinckney’s Plan the same kind of treatment. In addition to that
perfectly reasonable supposition, Jameson gave three reasons for believing
that the second half of this manuscript was derived from Pinckney’s
Plan.
149
First, he argued that “we have here a body of material plainly
derived from two documents.”
150
However, he gave no reasons for
believing why this claim ought to be so plain. The first half was indeed,
without any room for doubt, taken from another document, the New Jersey
Plan. We can draw this conclusion because it matches extant copies of that
Plan so perfectly. But the second half could just as easily have been
generated ex nihilo during the Committee of Detail, either by Wilson alone
or by Wilson in conference with others, or it might have been compiled
from several different sources. It is not at all obvious why one should simply
assume at the outset that the second half was drawn from a single source in
the same way that the first half was.
148
. William Ewald & Lorianne Updike Toler, Committee of Detail Documents, 135 PA. MAG. HIST.
& BIOGRAPHY 239, 307, 309 (July 2011). The Ewald & Updike Toler article includes reproductions
of all the Committee of Detail manuscripts with facing transcriptions. Farrand transcribed the same
manuscript in Committee of Detail, VII, in 2 RECORDS, supra note 63, at 157, 157–59.
149
. Jameson, Studies, supra note 49, at 131.
150
. Id.
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Second, Jameson pointed out that the names given for the different
branches of government match the ones that Pinckney used.
151
This
observation is probably the strongest reason Jameson gave for believing that
this part of the manuscript was derived from Pinckney’s Plan. From several
sources, we can see that Pinckney named the chief executive the “president,”
the two branches of the legislature were denominated the “house of
delegates” and the “senate,” and the judiciary he called a “federal judicial
Court.”
152
The second half of the Wilson manuscript employs all of those
terms; therefore, if it was not drawn from the Pinckney Plan, we must
acknowledge that it is at least a noteworthy coincidence that Wilson used
precisely the same language that Pinckney did when describing the various
branches of government. Of course, at least some of those terms may have
been drawn from the constitution of Wilson’s home state of Pennsylvania.
There, we find that the head of the executive council was likewise named
the “president,” and its unicameral legislature, though named a “house of
representatives,” included members that the constitution called “delegates.”
Many delegates used the word “senate” to describe the upper chamber. If
Wilson had employed only those terms, these names would provide scant
reason for tracing this part of the document to Pinckney in particular.
Nevertheless, the name “federal judicial Court” is more unusual; the usage
of that term is the single most striking coincidence between the Jameson
Draft and Pinckney’s terminology. However, as we shall see when
comparing this manuscript to McLaughlin’s, the placement of these
particular words, the most distinctively Pinckneyesque phrase within the
Jameson Draft, is significant.
Jameson’s third reason for believing that the list was drawn from
Pinckney’s Plan requires more critical scrutiny. He argued that, “out of
some forty provisions” written in Wilson’s handwriting, “not one is in
conflict with what we otherwise know of Pinckney’s real plan, developed
according to the method established on previous pages.”
153
While that
statement is true, and may appear at first glance to be a weighty
consideration, its value as verification of Pinckney’s Plan is highly
questionable. The features that Jameson had identified as properly
151
. Id. Curiously, Jameson lists only “House of Delegates” as coming from Pinckney, which
is not especially distinctive. Id. I am actually building a much stronger case than the one Jameson
presents, taking into account Pinckney’s use of “federal judicial court,” a more unique phrase which
Pinckney employs on several occasions, both before and after the Convention.
152
. Id. at 130–31.
153
. Id. at 131.
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belonging to the Pinckney Plan consisted almost entirely of structural
elements of government. Almost nothing was said about the powers
granted to each branch, and nothing whatsoever was said about denying
powers to these branches. Therefore, one could say about almost any list
of powers, no matter how it was constructed or what it contained, that it did
not conflict with Jameson’s initial reconstruction of Pinckney’s Plan.
Indeed, it can be said with equal truth about the list of powers in the first
half of the manuscript—that half which was indubitably drawn from the
New Jersey Plan—that “not one is in conflict with what we otherwise know
of Pinckney’s real plan.”
154
But making that observation about the first half
of the manuscript hardly constitutes proof that Charles Pinckney authored
the New Jersey Plan. Making that declaration about the second half of the
manuscript, then, is in reality of little worth in determining whether
Pinckney might have been its author.
Reduced to brass tacks, the thrust of Jameson’s argument really comes
down to a negative claim: no one can definitively prove that this list of
powers did not come from the Pinckney Plan. And it would have been far
more difficult to find evidence tending to disprove the identity of Jameson’s
manuscript discovery if, just one year later, McLaughlin had not found
another manuscript with far greater claims to being an extract of the Lost
Plan. Before Jameson discovered the first Wilson manuscript, he had named
a number of features he predicted would probably be found in the Pinckney
Plan.
155
The manuscript that he later found contains only a few rather
generic details which match those predicted features. They can be summed
up in this single sentence: we should expect the Pinckney Plan to formulate
a national government with a bicameral legislature, a single executive, and a
judiciary.
156
However, since this basic structure of government mimics
most of the state constitutions at the time, and matches the expectations of
most delegates to the Convention and all the members of the Committee of
Detail, these sparse features alone are very thin gruel for identifying a
manuscript as coming from Charles Pinckney in particular. Furthermore,
this generic structure of government can also be found in McLaughlin’s
manuscript discovery, and both documents employ Pinckney’s distinctive
154
. Id.
155
. Id. at 118–19.
156
. See id. at 118–19, 130–31 (showing Jameson’s initial predictions, and the contents of the
manuscript he later found).
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names to describe each branch of government.
157
Thus, as far as this
skimpy verification goes, each Plan has an equal claim.
However, whereas the Jameson manuscript contains only the most
skeletal outline matching his expectations for Pinckney’s Plan, the
McLaughlin manuscript contains most of the notable features which
Jameson predicted we would find in the Plan; and, indeed, we find some
features that could have come from nowhere else. We know from more
than one source that Pinckney’s Plan shared several features with the
Virginia Plan, and these shared features are all found in McLaughlin’s
extract.
158
The most distinctive of these features was a power lodged in the
national legislature to veto state laws.
159
Pinckney also shared with the
Virginians a wish to see that senators would be elected by members of the
lower house and that the executive would be elected by the whole
legislature.
160
All of the features we would expect to find in both the
Pinckney and the Virginia Plan are present in the McLaughlin discovery.
Even more telling, however, were the features unique to Pinckney.
Although both plans presented on May 29 contained a proposal to
apportion representation to each state’s population, only Pinckney proposed
counting slaves according to a three-fifths ratio for the lower house.
161
He
also wanted to choose senators from four national districts, made up by
grouping several states together, and to have senators serve for staggered
four-year terms.
162
The McLaughlin manuscript contains all of these
features. Finally, while both the Virginia Plan and the Pinckney Plan
157
. See infra Appendix 1, Appendix 2.
158
. The Virginia Plan, in 1 RECORDS, supra note 57, at 20, 20–22.
159
. Id.
160
. Jameson, Studies, supra note 49, at 118–20. See Letter from George Read to John Dickinson
(May 21, 1787), supra note 56, at 25 (“[S]enate, to be elected by the delegates so returned, either from
themselves or the people at large, in four great districts, into which the United States are to be divided
for the purpose of forming this senate . . . .”); Madison’s Notes (May 31, 1787), in 1 RECORDS, supra
note 57, at 47, 52 (describing Pinckney’s motion on May 31); Madison’s Notes (June 7, 1787), in
1 RECORDS, supra note 57, at 150, 155 (summarizing Pinckney’s speech on June 7, 1787). Jameson
actually says that the members of the senate “were to be elected either by the State legislatures or by
the first branch, it is not certain which.” Jameson, Studies, supra note 49, at 119. Nonetheless, both
Read’s May 21 letter and Pinckney’s May 31 motion suggest that Pinckney’s first preference was for
senators to be chosen by the lower house, and this earlier choice is confirmed by the McLaughlin
manuscript. The opinion Pinckney later expressed, on June 7, that senators should be chosen instead
by the state legislatures, appears to have reflected a change of opinion that took place only after the
first week of debates.
161
. Jameson, Studies, supra note 49, at 118–19.
162
. Id. at 119–20. This provision appears to be closely modeled on the New York
Constitution.
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provided for a Council of Revision (an unusual institution at the time,
whereby the veto power over Congress was lodged in a committee formed
from the executive and a council), the one described in the McLaughlin
manuscript was definitely Pinckney’s.
163
The Council of Revision found in
the Virginia Plan closely mimicked the one in the New York Constitution
(the only existing model for such a council), whereby the executive would
share the veto power with members of the Supreme Court.
164
Pinckney’s
Council altered the New York model by uniting the president with the heads
of the several executive departments (similar to South Carolina’s Privy
Council, which advised the governor, though it did not—like the Council of
Revision—share a veto power with him).
165
The Wilson extract found by
McLaughlin contained all these provisions unique to Pinckney, which makes
its claim to being drawn from the Pinckney Plan almost unassailable, even
when confining its examination to Jameson’s predictions alone. But to add
to its authentication, McLaughlin also traced some of its provisions to a
report that Pinckney wrote in 1786 when he chaired a congressional
committee on amending the Articles of Confederation,
166
and he outlined
some noteworthy similarities between the manuscript he found and
Pinckney’s “Observations.”
167
There are additional features that Jameson had predicted would be in the
Pinckney Plan but which are not found in the McLaughlin discovery.
Taking each one individually, it is impossible to say for certain whether
Wilson omitted them in his extract or whether they were never actually in
the Plan at all. Since Jameson was reconstructing his Plan by drawing in
part from Pinckney’s opinions as they were expressed in speeches early in
the Convention, we cannot be sure which of these opinions were really
derived from the Plan he read on May 29 and which ones were generated in
situ and perhaps in response to the debates. As a parallel example: although
Madison is generally acknowledged as being the primary author of the
Virginia Plan, he made several suggestions in the opening weeks of the
Convention which were unrelated to anything found in that Plan, and a few
of his proposals and opinions even contradicted provisions in that Plan. If
we were trying to reconstruct the Virginia Plan based on Madison’s
163
. Id. at 119 (stating “Pinckney had provided for a council of revision” and describing its
structure); see infra Appendix 2 (describing a council of revision’s structure in Resolution 6).
164
. The Virginia Plan, supra note 158, at 21; N.Y. CONST. art. III (1777).
165
. My thanks to Donald L. Drakeman for pointing out this similarity.
166
. McLaughlin, Sketch of Pinckney’s Plan, supra note 46, at 738–39.
167
. Id. at 737–38, 741–47.
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statements before the Convention and in its first two weeks, we would be
led astray in several points.
168
When attempting to reconstruct the
Pinckney Plan, if we confine our expectations to those features described in
the most reliable source we possess, George Read’s snapshot picture of the
Plan in his letter prior to the Convention, we find that only two of these
features described there are not in the Wilson extract found by McLaughlin:
that members of the lower house would be chosen by state legislatures and
that the president would serve a seven-year term.
169
There is one and only one element in the McLaughlin manuscript that
jars with our expectations. According to Resolution 5 of Wilson’s extract,
the president was to be chosen “annually” by Congress.
170
However,
according to Read’s description of the plan as well as Pinckney’s early
speeches in the Convention, he wanted a president with a seven-year
term.
171
Although it is just barely possible that Pinckney wavered on this
question, McLaughlin is likely correct to suggest that Wilson made a copying
error when jotting down the fifth Resolution.
172
All of this is to say:
although the McLaughlin Draft may not be a perfect extract of the Pinckney
Plan, it cannot be denied that Wilson was copying Pinckney’s Plan when he
wrote it.
168
. For examples of the variance between Madison’s opinions in the opening weeks and the
plan that the Virginia delegates presented, see King’s Notes (June 1, 1787), in 1 RECORDS, supra
note 57, at 70, 70–71 (recording a speech by Madison, stating “the best plan will be a single Executive”);
Pierce’s Notes (June 1, 1787), in 1 RECORDS, supra note 57, at 73, 74 (“Mr. Maddison was of opinion
that an Executive formed of one Man would answer the purpose”). Whereas the Virginia Plan was
silent as to the number of occupants filling the executive branch (probably in deference to Randolph
and Mason, who both preferred a plurality in the executive), on June 1 Madison expressed his own
preference for a unity in the executive. Id. Similarly, Resolution 6 of the Virginia Plan authorized
Congress “to call forth the force of the Union [against]” delinquent states. The Virginia Plan, supra
note 158, at 21. But when that provision was debated at the Convention just two days after the Plan
was read, Madison demurred, observing “that the more he reflected on the use of force, the more he
doubted the practicability, the justice and the efficacy of it when applied to people collectively and not
individually.” Madison’s Notes (May 31, 1787), supra note 160, at 54. These examples illustrate the
hazards one might encounter when reconstructing a Plan based on the author’s subsequent opinions,
even those expressed shortly after the Plan was presented.
169
. Letter from George Read to John Dickinson (May 21, 1787), supra note 56, at 25.
170
. McLaughlin, Sketch of Pinckney’s Plan, supra note 46, at 742.
171
. Madison’s Notes (June 1, 1787), supra note 168, at 68 (describing Pinckney moving for a
seven-year presidential term); Letter from George Read to John Dickinson (May 21, 1787), supra
note 56, at 25 (discussing a federal system where a president has “only executive powers for seven
years”).
172
. See McLaughlin, Sketch of Pinckney’s Plan, supra note 46, at 742 n.4 (noting the mistake in
using the term “annually” in the fourth footnote).
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B. An Alternative Theory to Explain the Jameson Draft: Examining the
New Jersey Extract
Before particularizing the various reasons for doubting Jameson’s
identification of the second half of the manuscript he discovered, it would
be helpful at this stage to advance an alternative hypothesis to explain its
contents. For, if we find that the evidence decisively weighs against the
supposition that Wilson was simply copying from Pinckney in the second
half of this manuscript, then what was he doing in this half, after he finished
abridging the New Jersey Plan? To all appearances, it seems most likely that
he was engaged in a brainstorming exercise—either alone or in consultation
with some fellow committee members—adding those powers which he
believed should belong to the branches of government as they occurred to
him. It does appear that he consulted the Pinckney Plan during this process,
but not until he was nearly finished. Out of 41 total clauses, we do not find
any that look definitively like they owed their origin to Pinckney until
Clause 36 (comparing the contents to the McLaughlin Draft), though
Wilson probably began consulting the Plan at Clause 35. And even when
examining these last six clauses, it would appear that Wilson was probably
modifying Pinckney’s provisions as he was drafting (which is noticeably
different from his more faithful abridgement of the New Jersey Plan).
Drawing back a little and seeking the most probable explanation for the
entirety of this manuscript Jameson found—combining both the New
Jersey Plan extract and the second half—it seems to be a list of Wilson’s
preferred powers for the new government. Few of the powers he listed in
either half are “original;” Wilson was indubitably drawing from other
sources in this manuscript: not only the New Jersey Plan, but also the
Pinckney Plan, the Articles of Confederation, and probably some state
constitutions. Nevertheless, this manuscript is an important insight into
Wilson’s thinking at this stage of the deliberations, and his choices for which
powers to accept and which to reject clearly had an important influence on
the final Constitution. Wilson’s efforts in this manuscript were performed
in pursuance of the committee’s task of creating a newly minted
enumeration of powers for the government they were creating. Before the
Committee of Detail met, the Convention had on several occasions debated
the possibility of enumerating or specifying the powers belonging to the
legislature and executive branches, but they had never done so. During
these debates, Wilson was among those who expressed a preference for not
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enumerating the powers for Congress.
173
However, either because he was
outvoted on the Committee of Detail or because he voluntarily changed his
mind by this stage, this manuscript—both the selectively abridged powers
from the New Jersey Plan and the additional powers listed in the second
half of the manuscript—demonstrates that he was actively engaged in the
process of choosing which powers ought to belong to the respective
branches of government.
174
The Committee of Detail Report was the first document considered by
the Convention (with the exception of the rejected New Jersey Plan) which
attempted anything like a comprehensive enumeration of powers. When
the Report’s list of powers was eventually debated by the entire Convention
in August, several delegates proposed to remove, alter, or add to the
individual powers the committee had enumerated. But no delegate ever
questioned the committee’s proposal to enumerate powers, nor did anyone
challenge or criticize the committee members for their presumption in
making out these lists absent any explicit directive. This silence suggests
that there was at least a tacit expectation among the delegates that the
Committee of Detail had been charged with this task, even though that was
never made clear in any of the records. Some historians of the Convention
have suggested that delegates who were not members of the committee may
have informally made suggestions while the committee sat,
175
but we have
no formal records of what transpired during their meetings. We must
therefore reconstruct their thinking by piecing together just a few scraps of
notes left by individual members, such as this manuscript in Wilson’s
handwriting found by Jameson.
When Wilson and his colleagues sat down to enumerate a set of powers
for the new government, they would have found that the twenty-three
173
. Pierce’s Notes (May 31, 1787), in 1 RECORDS, supra note 57, at 57, 60 (explaining Wilson
believed enumerating powers was impossible); Madison’s Notes (July 17, 1787), in 2 RECORDS, supra
note 63, at 25, 26 (showing that Wilson seconded a motion by Sherman, granting broad, generalized
powers to Congress).
174
. Cf. William Ewald, James Wilson and the Drafting of the Constitution, 10 U. PA. J. CONST.
L. 901, 981 n.212, 986–89 (2008) [hereinafter Ewald, James Wilson and the Drafting of the
Constitution] (doubting Wilson’s active involvement in the Committee’s enumeration of powers
because of his prior objections to it).
175
. See CLINTON ROSSITER, 1787: THE GRAND CONVENTION 200 (W. W. Norton & Co.
1966) (conjecturing that those delegates who stayed in Philadelphia while the Committee met may have
spent their time, “when they could not resist the temptation, giving free advice to the committee”);
THOMAS JEFFERSON, A MANUAL OF PARLIAMENTARY PRACTICE § xxvi (Applewood Books 1801)
(“Any member of the House may be present at any select committee, but cannot vote . . . .”).
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Resolutions decided by the Convention up to that point—the revised
Virginia Plan—would be of little help. On this question, the delegates had
not significantly modified the original proposal of the Virginia Plan, which
simply gave to Congress all legislative powers enjoyed by the old
Confederation as well as this sweeping directive: “and moreover [the power]
to legislate in all Cases for the general Interests of the Union, and also in
those Cases to which the States are separately incompetent, or in which the
Harmony of the United States may be interrupted by the Exercise of
individual Legislation.”
176
Therefore, if the Committee members intended
to depart from the Convention’s decisions up to that point and to begin
enumerating powers, they would need to turn to other sources for
inspiration, including the other documents entrusted to them: the New
Jersey and Pinckney Plans.
The first part of the Jameson document, then, is Wilson’s extract taken
from the enumerated powers found in the New Jersey Plan, yet it clearly
extracts only those powers that Wilson favored. Skipping over all the
provisions relating to the structure of government, he copied only some of
the powers the New Jerseyans had assigned to the three branches of
government. In some cases, Wilson also abbreviated sentences for brevity,
but he did not otherwise alter or add any words to the main body of the
text. There is only one line that is even out of order when compared to the
original. The fragment, “An Appeal for the Correction of all Errors both in
Law and Fact,” was originally placed at the end of Article Two in the New
Jersey Plan (relating to the appeal of judgments rendered by state courts),
but Wilson placed that line at the top of the page.
177
Maybe he skipped
over that line by accident when copying Article Two, or perhaps he changed
his mind about its desirability after copying the rest of the document. Other
than these major abridgements and that one minor alteration, the extract
that Wilson copied is in all other respects recognizable as a faithful and
verbatim copy of the New Jersey Plan.
It is important to note, however, that Wilson also added in the left-hand
margin a few lines that were not in the New Jersey Plan but which he
evidently believed to be desirable powers. For instance, after entirely
expunging Article Three, which was a new proposal for requisitioning
revenue from the states, Wilson added an alternative power in the left
176
. Committee of Detail, I, in 2 RECORDS, supra note 63, at 129, 131–32.
177
. Ewald & Toler, supra note 148.
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margin: “to lay and collect Taxes.”
178
Constitutional scholars will
immediately recognize that phrase as the opening line of Article I, Section 8
of our Constitution. The delegates by this time had already decisively
rejected the requisition mode of raising money, which had proved so
disastrous under the Articles of Confederation. The taxing phrase that
ultimately found its way into the Constitution was apparently Wilson’s own
brainchild, and it was evidently conceived while he was engaged in this
exercise of mostly copying and slightly amending the New Jersey Plan.
Wilson’s thinking in the first half of the manuscript—while deciding
which provisions in the New Jersey Plan he favored, and which he
rejected—is therefore easy to reconstruct, because we have authoritative
copies of the New Jersey Plan against which we may compare it. Only the
second half presents us with puzzles to solve.
C. The Alternative Theory, Tested by Internal Evidence
When Jameson described the entirety of the manuscript he discovered,
he declared that it was “a body of material plainly derived from two
documents.”
179
However, even when examining the internal evidence
found in this manuscript, that statement is questionable. The first half is
clearly modeled after another form of government, not only because it
matches exactly the arrangement of the New Jersey Plan, but also because
it follows a logical structure. It begins with a paragraph listing powers for
the legislature; it proceeds to a separate line about executive power (the New
Jersey Plan had very little to say about executive power, and even less that
Wilson chose to adopt); it then outlines a third section on the jurisdiction of
the federal judiciary; and the final two sections relate, respectively, to federal
authority to compel state infractions and a mandate for uniform rules of
naturalization throughout the states. Even if we did not possess a copy of
the New Jersey Plan for purposes of comparison, we could recognize in this
half a logical arrangement of federal powers.
The second half, by contrast, not only fails to conform to what we can
know about the order of Pinckney’s Plan (and more on this presumed order
anon), but it does not appear to follow any order at all. If we examine this
178
. Id. at 306, 307; Committee of Detail, VII, supra note 148, at 157. It is important to note
that when Farrand transcribed the manuscript, he placed Wilson’s marginal notes in italics and
integrated them into the rest of the text, which obscures the distinction between the verbatim
transcription of the New Jersey Plan in the main body of the text and Wilson’s original marginalia
placed to the left of the main body.
179
. Jameson, Studies, supra note 49, at 131.
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half (Appendix 1), we see that Clauses 1–6 describe the arrangement and
internal rules governing the two Houses of Congress. Clauses 7–21 outline
the powers of the President. After finishing with the presidential powers,
Wilson returned to the subject of Congress, enumerating their exclusive
powers in Clauses 22–34. Clauses 35–36 outline the jurisdiction of the
courts. Clause 37 returns again to the legislature, granting it the power to
establish admiralty courts in the states. Clauses 38–39 describe the
impeachment power, which is shared between the legislature and the
“foederal court.” And the last two clauses, 40–41, return again to the subject
of exclusive powers lodged in the legislature. There is little discernable order
to the list of powers supposedly drawn from Pinckney’s plan of government.
The structure, if it can be called that, rather has the appearance of someone
brainstorming; it seems as though Wilson were listing powers willy-nilly, as
they occurred to him, rather than copying powers as they appeared in any
preexisting plan of government.
Furthermore, in the manuscript half that is supposedly copied from the
Pinckney Plan, there are emendations that would not ordinarily occur in a
simple act of copying. By way of comparison, in the extract of the New
Jersey Plan (the first half of the manuscript), there are no strikethroughs.
Wilson’s only visible error when copying from this source was his choice to
include one line out of order, found at the top of the manuscript.
180
In the
second half, however, there are two strikethroughs, which together seem to
indicate that Wilson was weighing different alternatives in the act of
composition, but it does not seem as though he were merely copying the
wording found in another source. For instance, in Clause 6, Wilson wrote
that neither House in Congress should be able to adjourn for more than
some unspecified number of “Days, without the other Consent of both.”
181
This provision has no known origin (it certainly was not copied from any
corresponding provision found in the McLaughlin manuscript), and it
appears that Wilson was drafting an original provision, and changing his
mind as to its composition, rather than copying the wording from another
source. Further down, in Clause 36, Wilson started to write a line about the
appellate power of the federal courts (a line that is similar in content and
even wording to a line in the Pinckney Plan discovered by McLaughlin), but
he crossed out the line before he was finished, leaving an incomplete
180
. Ewald & Toler, supra note 148, at 306.
181
. Id.
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thought.
182
Thus, even the structure and appearance of this half of this
manuscript, when considered independently, raises questions about the
likelihood that Wilson was simply copying from a second source after he
finished his extract of the New Jersey Plan.
D. The Alternative Theory, Confirmed by the McLaughlin Draft
Thus far, we have seen that the McLaughlin manuscript has very strong
claims to being an extract of the Pinckney Plan, but the authentications for
the Jameson manuscript have always been quite weak, and in a couple of
points are even problematic. Nevertheless, is it still possible to maintain the
supposition that they were both extracts of the same Plan, simply that
Wilson was making different kinds of extracts? It is here that McLaughlin’s
discovery poses embarrassments for Jameson’s. For if both manuscripts
were drawn from the same source, and drafted by the same person, then
why do they share so little in common? To all appearances, the McLaughlin
Draft is a faithful, albeit abridged, copy of the original, so we would expect
any other extract to be comparable to it. Yet not only is the substance of
the Jameson manuscript dissimilar, but so is its wording, arrangement, style,
and even spelling. The reproduction of the Jameson Draft in Appendix 1 is
formatted to highlight its notable lack of conformity to the McLaughlin
Draft (Appendix 2), a lack of conformity that persists until the last few lines.
This failure of the Jameson manuscript to conform to what we know
about the structure and wording of Pinckney’s Plan appears especially
suspect when we compare it to Wilson’s extract of the New Jersey Plan,
which immediately preceded the supposed Pinckney extract: it was nearly
perfect as a verbatim copy, albeit an abridged one. If McLaughlin’s
manuscript was a faithful extract (and for reasons given below, that seems
likely), then we must suppose that even on those few points where the two
extracts are in agreement over substance, Wilson nevertheless lavishly
reordered and reworded Pinckney’s Plan in the second extract (in striking
contrast with the New Jersey Plan extract found on the same page). We also
must suppose that he omitted many details from both extracts, but on
entirely different principles; that is, not only were the structural details of
government omitted from the Jameson extract, but each manuscript
included numerous powers and omitted others, but each one included and
omitted different powers. The textual analysis necessary for this
comparison is multifaceted (and unfortunately, it is at times tedious), yet
182
. Id. at 309.
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each nonconformity between the two documents must be examined to
appreciate the cumulative improbability of Jameson’s manuscript being
drawn from the same source as McLaughlin’s. First, a few words on
ordering are in order.
There are several reasons to believe that the arrangement of the Pinckney
extract found by McLaughlin is true to the original. In the first place, Wilson
numbered the various articles, and it seems unlikely that he would have done
so if he were reordering it according to his own fancy. Second, as
McLaughlin points out, there is a “marked similarity in the succession of the
articles” when comparing this manuscript to the plan described in
Pinckney’s “Observations.”
183
They are not numbered the same, and
Pinckney probably embellished and somewhat reordered his Plan when
drafting this pamphlet, but he appears to have retained much of the order
of the provisions that were indeed in his original. Finally, if the various
provisions found in McLaughlin’s extract of Pinckney’s Plan were traced to
their probable sources, its structure is recognizable: it is clearly both an
abridgment and a modification of the Articles of Confederation, larded with
various amendments that are drawn either from the Virginia Plan or are
original to Pinckney. The ordering of Pinckney’s Plan is not a perfect mirror
of the Articles—a few provisions are rearranged—but its provisions track
closely enough to make the underlying structure unmistakable. What we
find in the McLaughlin manuscript, therefore, is an authentic extract of the
Pinckney Plan, probably abridged in some places, but with its basic structure
intact. The great unknown will always be to what extent Wilson might have
abridged the original when writing it, but otherwise it appears to be a faithful
copy.
However, if we lay the two Wilson manuscripts (both contenders for the
Lost Pinckney Plan) side-by-side, we can see at a glance that, even if all the
content of Jameson’s manuscript really were drawn from Pinckney’s Plan,
at a minimum Wilson was following a very different procedure than the one
that he had followed when making his extract of the New Jersey Plan. In
the New Jersey extract, although Wilson had excised much of the content,
he otherwise wrote sentences that tracked as a verbatim copy, word-for-
word, line-by-line, and the provisions (with only one exception) were written
in the exact same order as the original. This faithfulness to the original is
not at all true of the second half. We don’t even begin to find clauses in the
Jameson document that bear a close resemblance to corresponding passages
183
. McLaughlin, Sketch of Pinckney’s Plan, supra note 46, at 737.
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in the McLaughlin draft until midway through the document, beginning with
the powers of the legislature (Clause 22 of 41). If we start at Clause 22 and
try matching similar provisions in the two documents, we find that
Pinckney’s order, as represented in the McLaughlin draft, was completely
rearranged in Jameson’s manuscript. Several individual clauses from the
Jameson Draft can be seen that match the content found in Resolutions 11,
12, 13, 15, 16, 18, and 19 of the McLaughlin Draft. But if we isolated all the
corresponding clauses from Jameson’s manuscript and placed them in the
same order that we find in the original, they would look like this: Clause 22,
26, 29, 36, 37, 32, 33, 38, 39, and 40.
When McLaughlin compared his discovery to Jameson’s, he gave this
explanation for the disorder he likewise noticed in Jameson’s manuscript:
“In making the excerpts for his own purposes, Wilson did not exactly follow
the order in which the subjects appeared in the plan.”
184
This explanation
would perhaps suffice, if Wilson were taking clauses out of their original
order for the purpose of creating some other, perhaps more logical, order.
But it’s difficult to fathom why Wilson would be pulling apart Pinckney’s
order for the sake of disorder, yet disorder is precisely what we find in
Jameson’s manuscript. At least, we must believe that Wilson undertook this
process of derangement if we insist that the entirety of the second half of
this document really was drawn from Pinckney’s Plan. Furthermore,
interspersed among the few clauses that correspond between the two plans
are numerous powers in each manuscript that are not found in the other. If
the omissions could be seen only in one direction (i.e., if there were missing
powers in Jameson’s manuscript only), we could easily account for the
missing powers by supposing that Wilson was once again excising those
powers that he did not favor. But it is harder to explain why each
manuscript contains numerous powers that the other one lacks if they were
both drawn from the same Plan and copied by the same person.
Starting from the top of the manuscript, if we look for corresponding
clauses within the first half of the supposed Pinckney Plan that Jameson
found (Clauses 1–21 out of 41), we find that the only commonality between
the two manuscripts relate to the names of the branches of government.
Not a single clause in this first half (which organizes the internal rules of
Congress and enumerates the powers of the president) is a close match.
Indeed, in the third paragraph in particular, a lengthy one on the executive
branch, we find notable differences between the two documents. In
184
. Id. at 735.
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Clause 14 of the Jameson manuscript, the president is given the power “to
inspect” the executive departments. By contrast, Resolution 5 of the
McLaughlin manuscript gives the president the power “to advise with” (not
inspect) “the Heads of the different Departments as his Council.” Also,
whereas Clause 16 of the Jameson manuscript gives the president authority
to “commission all Officers,” Resolution 15 of the McLaughlin draft gives
to Congress the power to “institute Offices and appoint Officers,” and it says
nothing about commissioning officers. Even if neither variance is an
outright contradiction, they both represent notable differences between the
two manuscripts which are hard to reconcile.
On the other hand, it must be said in favor of Jameson’s document that
two of the powers listed for the executive—[10] to correspond with the
Executives of the several States, and [14] “to inspect” the Departments of
foreign Affairs, War, Treasury, and Admiralty—can be found in Pinckney’s
“Observations.”
185
If the “Observations” were a reliable source, the
coincidence would mean more. But given Pinckney’s known penchant for
altering records and borrowing from other people,
186
it seems just as likely
that he was drawing from Wilson’s work on the Committee when he wrote
the “Observations” as that Wilson was drawing from Pinckney’s Plan when
he was working on the Committee’s Report.
The Jameson Draft’s lengthy paragraph on presidential powers
(Clauses 7–21) is not only difficult to square with the McLaughlin extract; it
is also difficult to reconcile with what we otherwise know about Pinckney’s
approach to executive powers. According to Read’s description of the Plan,
the president was to have “only executive powers”
187
—that is, he was
tasked with nothing more than executing the law. However, within the half
of Wilson’s manuscript that was supposedly drawn from the Pinckney Plan,
the list of executive powers is nearly as long as the cumulative powers
enumerated for the legislature. It is difficult to imagine Read reading this
185
. Pinckney, “Observations”, supra note 44, at 111; see infra Appendix 1.
186
. 3 IRVING BRANT, JAMES MADISON: FATHER OF THE CONSTITUTION, 1787–1800,
at 28–29 (Bobbs-Merrill Company, Inc. 1950) (giving some cogent reasons why Pinckney should be
considered “a sponger and a plagiarist,” an accusation that Pinckney’s admirers have treated
dismissively rather than addressing seriously or attempting to refute); cf. COLLIER & COLLIER, supra
note 24, at 64 (rejecting Brant’s characterization of Pinckney outright); BEEMAN, supra note 24, at 93,
462 n.15; Nelson, supra note 29; MATTHEWS, supra note 12, at 43; JOHN RICHARD ALDEN, THE
SOUTH IN THE REVOLUTION: 1763–1789, at 379 n.17 (4th prtg. 1994); William Bole, Pinckney’s Legacy:
A Victim of His Disfavor With Other Founders, 85 LIBERTY: A MAGAZINE OF RELIGIOUS FREEDOM,
July–Aug. 1990, at 20, 20.
187
. Letter from George Read to John Dickinson (May 21, 1787), supra note 56, at 25.
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lengthy list of presidential powers and describing the office as having “only
executive powers.” By contrast, the McLaughlin manuscript reserves the
lengthy enumeration of powers for Congress alone; the executive branch is
merely summed up in Resolution 5 in this way: “In the Presidt. the executive
Authority of the U. S. shall be vested. — His Powers and Duties — He shall
have a Right to advise with the Heads of the different Departments as his
Council.”
188
This terse wording better conforms to Read’s description that,
according to Pinckney’s Plan, the president had no more than executive
powers.
Furthermore, this concise approach to describing executive powers also
matches what Pinckney said about executive powers on June 1 in the
Convention. He opposed adding a clause authorizing the executive “to
execute such other powers not Legislative nor Judiciary in their nature as
may from time to time be delegated,” because such powers were already
included in the “power to carry into effect the national laws.”
189
Is it likely
that someone who argued for a minimalist approach to delegating or naming
executive powers on June 1 would have included a lengthy enumeration of
executive powers in the Plan he read just three days earlier, on May 29? Yet
that is what we must suppose if we insist that the entirety of the second half
of the Jameson manuscript was drawn from Pinckney’s Plan. Indeed, most
of the executive powers listed in the Jameson manuscript either have no
known connection to Pinckney at any time, or they are powers claimed by
Pinckney only after the Convention had adjourned. Hence, the first half of
the Jameson extract—Clauses 1 through 21—contains nothing which
convincingly suggests Pinckney was the author, and it contains some reasons
for entertaining serious doubt.
Proceeding to the next paragraph in Jameson’s manuscript (Clauses 22–
34), relating to the powers of Congress, we do find a few powers listed here
that can likewise be found in McLaughlin’s manuscript. It is significant,
however, that most of the provisions that are shared between these two
manuscripts likewise share a common origin: they are almost all powers
named in the Articles of Confederation. In particular, of the twelve powers
named for Congress in this paragraph of Jameson’s manuscript, four are
188
. See infra Appendix 2; McLaughlin, Sketch of Pinckney’s Plan, supra note 46, at 742.
189
. Madison’s Notes (June 1, 1787), supra note 168, at 67 (providing a June 1, 1787 speech by
Charles Pinckney concerning executive powers).
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derived from the Articles and eight are newly created.
190
Of the four
derived from the Articles (Clauses 29, 31, 32, and 33), three are likewise
found in McLaughlin’s Pinckney Plan. However, of the remaining eight that
are original, only one ([26] “regulating trade”) is found in both documents.
Yet the power to regulate trade has little claim to being a distinctively
Pincknian power. As McLaughlin has pointed out, “such ideas [as the need
to add ‘the power to regulate commerce’ to the new government] were
practically common property in 1787.”
191
If we set aside the powers of
regulating interstate and international trade (counting them as two powers),
the remaining new congressional powers within this paragraph of the
Jameson manuscript—fully six powers—cannot be traced to corresponding
resolutions in the McLaughlin draft, and we have little reason for assuming
that Pinckney arrived at the Convention prepared to grant them to
Congress.
Turning to McLaughlin’s Pinckney Plan, we find sixteen distinct powers
for Congress scattered throughout the various resolutions. Of these, seven
were taken directly from the Articles or were only slightly modified by
Pinckney,
192
and nine powers were entirely new. As already mentioned, of
the seven powers derived from the Articles, three can likewise be found
within the main paragraph of Jameson’s manuscript which delineates
congressional powers. But of the nine new powers, only three can be found
anywhere in Jameson’s manuscript. The least distinctive, the power to
regulate trade, is in Wilson’s main paragraph on congressional powers. Yet
the two truly unique new powers shared by the two manuscripts are not in
that main paragraph; they are added at the bottom. In other words, if we
were looking to match truly distinctive powers between the two
documents—rather than familiar details that each man might have
independently copied from the Articles—we find no notable
correspondence between the two Wilson manuscripts throughout the first
190
. In arriving at twelve powers in the fourth paragraph of Jameson’s manuscript, regulating
interstate and international trade are counted as two separate powers, but the power to levy duties on
imports and exports is counted as one.
191
. McLaughlin, Sketch of Pinckney’s Plan, supra note 46, at 739.
192
. As an example of slightly modified powers from the Articles of Confederation, Pinckney
gives to Congress “the exclusive Right of instituting in each State a Court of Admiralty, and appointing
the Judges.” Id. at 745. In the Articles, Congress is given the right to institute such courts, though not
in each state, and the power to appoint judges is merely implied but not stated. The Jameson
manuscript copies the first power, to institute the courts, but not the second. Another example of a
slightly modified power is that, while the Articles gives to Congress the power to coin money, both the
McLaughlin and Jameson manuscripts make this an exclusive power.
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34 of 41 clauses. Moreover, even when generic details within the first 34
clauses of the Jameson manuscript seem to agree in substance with
McLaughlin’s, they don’t always align in their wording. For instance,
Resolution 16 in the McLaughlin draft begins: “S[enate] & H[ouse of].
D[elegates]. in C[ongress]. ass[embled]. shall have the exclusive Right.” This
formulation (like so much of the Pinckney Plan) was clearly modeled on the
wording found in the Articles of Confederation (in this case, Article IX).
193
By contrast, Clause 22 of the Jameson draft begins: “The Legislature of U.
S. shall have the exclusive Power.” Notably, when Pinckney described his
Plan in the “Observations,” he likewise referred in several places to the
“exclusive rights” of Congress, not exclusive powers.
194
Such differences
in wording between the two manuscripts, though trivial in themselves,
become especially noteworthy when we recall, once again, that Wilson’s
extract of the New Jersey Plan, although abridged, did not alter any of the
language.
Although the Jameson Draft does include two new congressional powers
which seem distinctively drawn from Pinckney, the placement of those
powers within this manuscript is revealing. They are not where we might
expect to find them, in the main paragraph delineating congressional powers
(Clauses 22–34). Setting aside the power to regulate trade, the two
congressional powers which are not named in the Articles of Confederation
but which are shared by both Wilson manuscripts—provisions for
impeachment in Clauses 38 and 39, and a uniform discipline of the militia
in 41—are separated by a list of judicial powers and added, almost as an
afterthought, at the bottom of the manuscript. In other words, it does not
appear that Wilson was drawing from the Pinckney Plan at all until the last
few lines (Clause 35 or 36 through 40). And it was probably due to the
correspondence of these last few lines, and only because of these last few
lines, that McLaughlin rendered his otherwise inexplicable judgment that his
own manuscript discovery “confirms the conclusion, if confirmation were
needed,” that Jameson’s manuscript was yet another extract of the same
plan.
195
It is also significant that it is only within these last few lines that
we find Wilson employing the distinctive phrase, “federal judicial Court,”
193
. Articles of Confederation of 1781, art. IX.
194
. See, e.g., Pinckney, “Observations”, supra note 44, at 116 (“The next article, proposes to
invest a number of exclusive rights, delegated by the present Confederation . . . .”).
195
. McLaughlin, Sketch of Pinckney’s Plan, supra note 46, at 735.
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which is the only name for the branches of government that looks
definitively like Pinckney’s wording.
196
Even more telling, there is one congressional power listed in Jameson’s
manuscript that is notably different from McLaughlin’s Pinckney Plan, and
it is unlikely to have come from Pinckney. In Resolution 12 of McLaughlin’s
extract of the Pinckney Plan, the legislature is given the power to raise
money through “levying Imposts.”
197
Pinckney’s preference for an
“impost” for raising revenue, as well as the particular meaning he attached
to the word, is well documented both in a pamphlet he wrote four years
before the Convention (his “Three Letters”)
198
and in the pamphlet he
wrote immediately after the Convention (his “Observations”).
199
According to Fowler’s Dictionary, an impost has a generic meaning; it is
simply a synonym for a tax.
200
However, in the 1783 and 1787 pamphlets,
Pinckney urges the propriety of raising revenue through a modest import
duty, which he consistently designates by the name impost.
201
Indeed, the
1783 pamphlet was a defense of the “Impost Act” passed by Congress two
196
. See infra Appendix 1.
197
. McLaughlin, Sketch of Pinckney’s Plan, supra note 46, at 744.
198
. Charles Pinckney, Three Letters Addressed to the Public, on the Following Subjects: I.
The Nature of a Fœderal Union. . . . II. The Civil and Military Powers. . . . III. The Public Debt . . . .
24–27 (Philadelphia, T. Bradford 1783).
199
. See Pinckney, “Observations”, supra note 44, at 116 (advocating for an impost system for
the Federal Government); cf. U.S. Continental Cong. et al., The Grand Committee, Consisting of
Mr. Livermore, Mr. Dane, Mr. Manning, Mr. Johnson, Mr. Smith, Mr. Symmes, Mr. Pettit, Mr. Henry, Mr. Lee,
Mr. Bloodworth, Mr. Pinckney and Mr. Houstoun, Appointed to Report Such Amendments to the Confederation, and
Such Resolutions as It May Be Necessary to Recommend to the Several States, for the Purpose of Obtaining From Them
Such Powers as Will Render the Federal Government Adequate to the Ends for Which It Was Instituted, Beg Leave
to Submit the Following Report to the Consideration of Congress, LIBR. OF CONG. 2,
https://www.loc.gov/item/90898174/ [https://perma.cc/N77G-LL6R] (displaying text of
Article XIV). Although Pinckney’s 1786 Report for amending the Articles of Confederation did
include the proposal that Congress should have the power to levy “such imposts, and duties upon,
imports and exports,” as they thought necessary, that 1786 amendment came with this important
qualification: that the revenue collected from these imposts would “accrue to the use of the state in
which the same shall be payable.” Id. In other words, this amendment was not a scheme for raising
revenue for the central government; it was a proposal to ensure that all import and export duties would
be uniform throughout the states (since this issue had been causing friction between New York and
the interior states). But if this amendment had been passed, any revenue raised from export duties
levied in South Carolina, for example, would accrue to the benefit of South Carolina. Clause 28 in the
Jameson manuscript, by contrast, appears to be a scheme for raising revenue for the federal
government through export taxes.
200
. Impost, H. W. FOWLER, A DICTIONARY OF MODERN ENGLISH USAGE: THE CLASSIC
FIRST EDITION (1st ed. 2009).
201
. See Pinckney, “Observations”, supra note 44, at 116 (proposing an “impost” for the Federal
Government); see also PINCKNEY, supra note 198, at 26 (arguing in favor of “imposts”).
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years earlier, proposing to amend the Articles of Confederation to authorize
a five percent tariff on imported goods.
202
By contrast, in Jameson’s
extract, Clause 28 gives Congress the power “of levying Duties upon
Imports and Exports.”
203
Not only can we find no indication from any
Pinckney source that he wished the new Congress to possess the power to
raise revenue through taxing exports; it is highly unlikely that he would have
arrived in Philadelphia intending to propose such a scheme.
Most of the Southern delegates, and all of Pinckney’s colleagues from
South Carolina, were strenuously opposed to granting the new government
any power to tax exports. Pinckney’s older cousin, Charles Cotesworth
Pinckney, said he was “alarmed” when he heard one of the delegates
informally suggest in mid-July that exports might be taxed.
204
The
following week he warned the newly created Committee of Detail that they
would need “to insert some security” against the possibility of export taxes
in their report.
205
If the informal suggestion of taxing exports was enough
to surprise and alarm the elder Pinckney in mid-July, it seems most
improbable that he had already heard his younger cousin formally propose
that same power in the plan of government he read on May 29.
Within the Committee of Detail, South Carolina’s John Rutledge made
notations within Virginian Edmund Randolph’s list of proposed powers for
Congress, and together they satisfied the elder Pinckney’s requirement of
prohibiting all export taxes—whether levied by Congress or the states.
206
Meanwhile, in Wilson’s draft of proposed powers for Congress (the one
supposedly drawn from Pinckney), he pointedly ignored the South
Carolinian’s request and instead granted to Congress the power to tax
exports.
207
This provision conforms to the known preference shared by
Wilson and his fellow Pennsylvanian, Gouverneur Morris. The inclusion of
this power in the Jameson Manuscript is one of the strongest reasons for
doubting that any Southerner participated in its creation. In all likelihood,
this manuscript was either drafted by Wilson alone or in consultation with
202
. See generally PINCKNEY, supra note 198, at 18–28 (defending a national “impost Act”).
203
. See infra Appendix 1.
204
. Madison’s Notes (July 12, 1787), in 1 RECORDS, supra note 57, at 591, 592 (noting General
Pinckney’s concerns regarding the taxation of exports).
205
. Madison’s Notes (July 23, 1787), in 2 RECORDS, supra note 63, at 87, 95 (showing a speech
by General Pinckney, including his warning to the Committee of Detail).
206
. Committee of Detail, IV, in 2 RECORDS, supra note 63, at 137, 142–43.
207
. Committee of Detail, VII, supra note 148, at 158–59.
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the committee members from the North, but not in cooperation with the
two Southern members.
Ultimately, however, the Report that was generated by the Committee of
Detail bowed to the wishes of the South, forbidding Congress to lay export
taxes. Nevertheless, this part of the Committee’s Report was clearly reached
over Wilson’s objections, for it irked him long after they read their Report
to the Convention. Twice in August Wilson expressed his opposition to the
exclusion, at one point saying he was “decidedly” against the prohibition to
tax exports.
208
But another South Carolinian, Pierce Butler, was equally
adamant on the other side, declaring “that he never would agree to the
power of taxing exports.”
209
Hence, if Pinckney had arrived in Philadelphia with a plan to tax exports,
that intention would have been a noticeable alteration from his known
wishes (as he had expressed both before and after the Convention); it also
would render him unusual as a Southerner and unique as a South
Carolinian.
210
It is far more likely that Clause 28 in Jameson’s manuscript
owes its existence to Wilson alone, and its attribution to Pinckney has been
an error.
There is one last small but revealing difference between the two
manuscripts that makes it unlikely that the content we find in Jameson’s
manuscript was simply copied from the Pinckney Plan. Within the
McLaughlin manuscript, the word federal appears twice, and it is spelled in
the modern fashion. Judging by contemporaneous documents, Pinckney
consistently spelled the word in the same way, “federal.” In the manuscript
208
. Madison’s Notes (Aug. 16, 1787), in 2 RECORDS, supra note 63, at 304, 307 (providing
Wilson’s August 16, 1787 speech in which he opposed prohibiting export taxes); Madison’s Notes
(Aug. 21, 1787), in 2 RECORDS, supra note 63, at 355, 362 (describing Wilson’s second August speech,
including his sentiments that, “To deny this power is to take from the Common Govt. half the
regulation of trade”).
209
. Madison’s Notes (Aug. 22, 1787), in 2 RECORDS, supra note 63, at 369, 374 (including a
speech by Pierce Butler regarding export taxes).
210
. Speech by Charles Pinckney in the South Carolina Convention (May 17, 1788), in THE
DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION DIGITAL EDITION,
http://rotunda.upress.virginia.edu/founders/RNCN-02-27-02-0005-0008-0003
[https://perma.cc/A9PW-D2TB] (John P. Kaminski et al. eds., Univ. of Va. Press 2009) [hereinafter
DOCUMENTARY HISTORY OF THE RATIFICATION]. One final reason for doubting that Pinckney
intended to tax exports was his awareness and pride of the enormity of exports from his own state.
During the ratifying debates, he asserted that exports were “a surer mode of determining the productive
wealth of a country than any other,” and he boasted that South Carolina “already exports more than
any state in the union (except Virginia) and in a little time must exceed her.” Id. That being his position,
it seems unlikely that a federal tax on exports would have been his starting position a year earlier.
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Jameson found, the same word appears four times (twice in the New Jersey
extract and twice in the second half). However, Wilson gives the word its
Latinized spelling, “fœderal,” all four times.
211
Interestingly, although
spelling was far from standardized at this time, Wilson generally spelled the
word the same way that Pinckney did.
212
It appears almost certain that
whatever source Wilson was using when copying the New Jersey Plan
(several copies survive, and probably even more existed in 1787 than survive
today), the original writer spelled the word “fœderal.” Apparently, Wilson
was making such a faithful extract in the first half that he even imitated that
writer’s spelling. However, when he proceeded to the second half, even
though he does not appear to be copying from any other source, he did not
revert to Pinckney’s spelling, which we might have expected him to do if he
really were copying from the Pinckney Plan. It is a small but telling
discrepancy between the two manuscripts, once again calling into question
Pinckney as the sole source for the second half of Jameson’s manuscript.
Nevertheless, despite the lackluster and at times even dubious claims of
Pinckney’s authorship when examining the bulk of Wilson’s enumeration of
powers, the last few clauses do appear to bear Pinckney’s fingerprints. As
we have already seen, if we try matching all the possible corresponding
clauses and placing them in their original order, we see that Wilson must
have deranged Pinckney’s arrangement. However, if we suppose instead
that Wilson did not consult Pinckney’s Plan until almost the end of his
manuscript, probably at Clause 35 and almost certainly by Clause 36, an
entirely different picture emerges. From there we find five consecutive
clauses, all appearing to come from Pinckney’s Plan, and all in the same
order we find in that source. Some of them are even worded similarly to
the corresponding clauses in McLaughlin’s manuscript. Clause 35 is not
found in the McLaughlin manuscript, but it is a faithful reproduction of one
clause within Article XIX of Pinckney’s 1786 Report. Clause 36 begins by
tracking Pinckney’s wording in Resolution 15 of the McLaughlin extract
very closely, but before completing the clause Wilson broke off in mid-
sentence and crossed it out. Clause 37 is the only one of the five that
describes a power that Pinckney had modified from the Articles of
Confederation, but Wilson clearly followed Pinckney’s wording rather than
the power as it is expressed in the Articles. Clauses 38 and 39 follow the
substance but not the wording of Resolution 18 in Pinckney’s Plan (and in
211
. See infra Appendix 1.
212
. My thanks to William Ewald for his help researching this question.
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the latter clause we find a change to the spelling of “federal”). And
Clause 40 again follows the substance of Pinckney’s Resolution 19, but
Wilson not only alters the wording considerably but adds another clause—
the last one, 41—which is not found in McLaughlin’s Pinckney Plan. Thus,
even in the last few lines, it was clearly not Wilson’s intent to provide a
faithful reproduction of Pinckney’s Draft; rather, he was copying only those
Pinckney provisions which he favored, and he gave himself license to
modify clauses at will.
If the McLaughlin manuscript had been found first, then it is unlikely that
Jameson would have misidentified the second half of the manuscript he
found as coming entirely from Pinckney. It is only because Jameson found
his manuscript first, and immediately jumped to the conclusion that the
entire second half was copied from the Lost Pinckney Plan, that we have
not only overrated Pinckney’s influence on the final Constitution, but we
have underrated the contributions of Wilson and the probable importance
of the McLaughlin discovery. For more than a hundred years now, scholars
have been relying on Jameson’s identification of the manuscript he found,
even though that conclusion was based on little more than confident
assertion.
In sum, if we try to suppose that the entirety of the second half of the
Jameson Draft (everything following Wilson’s extract of the New Jersey
Plan) was derived from Pinckney, we encounter numerous difficulties,
improbabilities, and a notable lack of conformity with known Pinckney
sources. However, if we suppose instead that Wilson did not consult the
Pinckney Plan until Clause 35 or 36, then the overall structure of the second
half of this manuscript makes more sense. It becomes easy to understand
what Wilson was doing after he finished making an extract of the New Jersey
Plan (one in which he reproduced only those provisions he favored and
added his own original ideas in the margin). In the second half of this
manuscript, it now becomes clear why Wilson has two separate sections for
legislative powers interrupted by a short list of judicial powers. The first
and more comprehensive list (Clauses 22 through 34) was generated by him
alone (or possibly in consultation with the Northern delegates on the
Committee), as was everything listed before that paragraph. However, when
Wilson began drafting his recommendations for the judiciary, it was at that
point that he began borrowing from the Pinckney Plan (at least Clause 36
and probably 35). After finishing his preferences for the judiciary, the
second list of congressional powers (Clauses 37 through 41) is primarily
comprised of provisions that were copied or modified from Pinckney.
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Therefore, Jameson was not wholly wrong when he identified the second
half of the manuscript as coming from Pinckney, but he almost certainly
gave to Pinckney far more credit than was his due. He also unwittingly took
from James Wilson the credit that belonged to him. Many of the
constitutional provisions attributed to Pinckney over the years appear in
reality to be the original contributions of Wilson. Although numerous
modern historians have become convinced that Madison sought to diminish
the importance of the Pinckney Plan because he was jealous of his “rivals’s”
influence on the Constitution, it was never Madison’s reputation that was
threatened by Pinckney’s 1818 exaggerations. Madison’s contributions to
the Constitution are well documented and well understood. Even if the
1818 Plan were genuine, it would not dim his star in the least. Pinckney, in
1818, had stolen glory from the Committee of Detail, and from James
Wilson’s contributions in particular.
Finally, once Jameson’s manuscript is properly identified, we can see that
McLaughlin’s discovery was far more important than he or anyone else has
hitherto appreciated. McLaughlin did not do justice to his own discovery
because he believed that Jameson’s manuscript was another authentic
extract of the same plan. Since Jameson’s manuscript included numerous
details that his own discovery lacked, he was forced to conclude that the
manuscript he found must be woefully incomplete. He even surmised that
there may have been many more significant contributions by Pinckney that
were not found in either manuscript. McLaughlin was evidently too
generous to Pinckney and too modest about his own discovery.
If we disabuse ourselves of the fatal error made by Jameson—that he was
the first to discover an extract of the Lost Plan—then an entirely new
prospect opens before us. It is now firmly within the realm of possibility
that the manuscript McLaughlin found is not only an authentic
contemporaneous extract of Pinckney’s Plan, but it can credibly lay claim to
being a fairly complete one as well.
There are undoubtedly some abbreviations made by Wilson. The most
obvious abbreviations, however, are those clauses that appear to be copied
directly from the Articles of Confederation.
213
Since Wilson knew the
213
. For instance, Wilson wrote merely two words for Resolution 2 in Pinckney’s Plan:
“The Stile.” See infra Appendix 2. Clearly, since so much of the Pinckney Plan tracked the Articles of
Confederation, this was an abbreviation of its Article I: “The Stile of this confederacy shall be ‘The
United States of America.’” ARTICLES OF CONFEDERATION of 1781, art. I.
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Articles inside and out,
214
he evidently did not think it worthwhile to copy
these familiar phrases in full when making his own copy of the Pinckney
Plan. But other than a couple of trivial details, and Wilson’s abbreviated
clauses from the Articles, we have no compelling reason to believe that the
original Pinckney Plan contained much more—that is, much more material
that was both original and substantive—than what we find in the Wilson
manuscript discovered by McLaughlin. And if the plan copied by Wilson
truly is the totality of what Pinckney proposed to the Convention on
May 29, 1787, then the impartial observer will conclude that its influence on
the shape of the final Constitution is far less than Jameson believed, and it
is drastically less than Pinckney professed or his admirers want to believe.
If the Supreme Court wishes to continue its trend of attributing clauses to
Pinckney, they would do well to confine their sources to the Wilson
manuscript McLaughlin found and the George Read letter in 1787. No
other source is credible.
IV. THE DEEP SOUTH’S CONSTITUTIONAL CON
Even if it is true that Pinckney contributed less and Wilson more to the
Constitution than previously believed, it is fair to ask: why does it matter?
In the first place, it matters because knowing the true origin of constitutional
clauses is important to some originalists. In Jared McClain’s words: “As
long as constitutional theorists and federal jurists employ an originalist
approach to interpretation, it remains valuable to attribute the document’s
provisions to the proper source.”
215
Ironically, McClain was here faulting
the decision in NLRB v. Noel Canning,
216
which failed to name Charles
Pinckney as the originator of the constitutional clause that prohibits each
house of Congress from adjourning “without the Consent of the other.”
217
If my analysis is correct, then this clause by rights belongs to Wilson, not
214
. See Ewald, James Wilson and the Drafting of the Constitution, supra note 174 (showing that
Wilson was probably the ablest legal mind in the Convention; he had argued cases involving the Articles
of Confederation as a lawyer; and he was, moreover, a member of the Continental Congress when the
Articles had been drafted).
215
. McClain, supra note 114, at 9.
216
. NLRB v. Noel Canning, 573 U.S. 513 (2014).
217
. See id. at 536 (quoting U.S. CONST. art. I § 5 cl. 4) (internal quotation marks omitted)
(relying on The Federalist Papers to understand the adjournment power of Congress and ignoring any
source written by Charles Pinckney); see also McClain, supra note 114, at 9 (“Despite the relative certainty
that the provision is attributable to Pinckney, both the Court of Appeals for the District of Columbia
Circuit and amicus curiae on the case cited heavily to the Federalist papers, which, unlike the provision
in question, were authored by James Madison.”).
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Pinckney. Admittedly, not all originalists are interested in the source of
constitutional clauses, but for those who are, they need to be alerted to the
long history of misattributing clauses to Pinckney.
But the importance of getting the facts right extends beyond originalist
jurisprudence. Setting aside the legal interpretation of the Constitution,
scholars have long sought the larger and deeper “meaning” of America by
examining the real or supposed intentions of the men who framed our
Founding documents. Rightly or wrongly, these documents are seen as
embodying America’s principles and values; they are viewed as shaping our
collective identity. Probably on no question has this search for America’s
identity been more fraught than determining to what extent the
Constitution’s Framers intended to promote or discourage the institution of
slavery.
As we saw at the opening of this Article, the 1619 Project sought to
establish an American narrative through its interpretation of America’s
history: that racism and slavery are intrinsic to our essence. This particular
framing of American history is intended to be taught in the classroom. In
response, President Trump countered that schoolchildren need a “patriotic
education,” and he established the 1776 Commission to draft a rival
narrative of American history.
218
According to their 1776 Report, the
Constitution’s compromises with slavery must be understood in light of the
“unqualified proclamation of human equality” found in the Declaration of
Independence; when rightly understood, it can be seen that both the
Declaration and the Constitution’s compromises are anti-slavery, because
they “set the stage for abolition.”
219
Neither of these rival interpretations of the Constitution is new. Both
perspectives have existed in varying forms since the Founding generation,
and we can expect that both will continue unabated for as long as people
are interested in understanding (and shaping) the meaning of the U.S.
Constitution. Nevertheless, it is important that serious scholars demand
that, whatever slant might be given to constitutional history, interpreters
must not be allowed to disseminate outright falsehoods. Both the 1619
Project and the 1776 Report have been criticized not only for being biased
218
. Alana Wise, Trump Announces ‘Patriotic Education’ Commission, A Largely Political Move, NPR
(Sept. 17, 2020 5:59 PM), https://www.npr.org/2020/09/17/914127266/trump-announces-patriotic-
education-commission-a-largely-political-move [https://perma.cc/QG5C-6CAG].
219
. The President’s Advisory 1776 Commission, The 1776 Report 11 (Jan. 2021).
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in their rendering of history, but also because of alleged factual
inaccuracies.
220
The current Court’s belief that Charles Pinckney authored the Privileges
and Immunities Clause is one example of a factual error that feeds into the
interpretation that the Constitution was framed according to the wishes and
intent of the slaveholding interests in the Deep South. This was the same
interpretation popularized by Roger Taney in the Dred Scott decision.
Although Taney claimed that the Court’s duty was to interpret the
Constitution “according to its true intent and meaning when it was
adopted,”
221
he made several claims that flew in the face of the historical
evidence. Chief among these claims was that descendants from Africa “are
not included, and were not intended to be included, under the word ‘citizens’
in the Constitution, and can therefore claim none of the rights and privileges
which that instrument provides for and secures to citizens of the United
States.”
222
Although Taney gave no historical support for these assertions, later
historians have trusted that his interpretation was an accurate reflection of
the intentions of the Constitution’s Framers. Herbert Storing acknowledged
that Taney’s decision was wrong in some details but nevertheless believed it
was “right fundamentally;” in particular, Taney was right when he stated,
[T]he Southern states cannot be presumed to have agreed to a Constitution
that would give any Northern state the power to make citizens of free blacks,
who could then go to Southern states, claim there all of the privileges and
immunities of citizens, and by their agitation and example disrupt the whole
police system on which the maintenance of slavery, and the preservation of
the white South, depended.
223
220
. See Leslie M. Harris, I Helped Fact-Check the 1619 Project. The Times Ignored Me., POLITICO
(Mar. 6, 2020, 5:10 AM), https://www.politico.com/news/magazine/2020/03/06/1619-project-new-
york-times-mistake-122248 [https://perma.cc/27SW-TQTY] (showing that the New York Times’ own
fact checker had urged them not to publish a significant inaccuracy in the 1619 Project, a warning
which the editors ignored); Craig Bruce Smith, How Biden Can Fix Trump’s 1776 Disaster, POLITICO
(Jan. 22, 2021, 7:08 PM), https://www.politico.com/news/magazine/2021/01/22/biden-trump-
1776-commission-461483 [https://perma.cc/5JNH-SU76] (claiming numerous alleged inaccuracies in
the 1776 Report).
221
. Dred Scott v. Sandford, 60 U.S. 393, 405 (1857).
222
. Id. at 404.
223
. Herbert J. Storing, Slavery and the Moral Foundations of the American Republic, in THE MORAL
FOUNDATIONS OF THE AMERICAN REPUBLIC 313, 326, 327 (Robert H. Horwitz ed., Univ. Press of
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Yet this scenario, which Storing says cannot be “presumed” to have
happened, is in fact what happened, based on all available evidence. The
Deep South objected to this clause for the very reasons Storing names. But
the clause was nevertheless adopted first into the Articles of Confederation,
then into the Constitution, and both times it was passed over the objections
of the Deep South.
Justice Curtis’s dissent in Dred Scott was far more grounded in historical
fact than Justice Taney’s decision. He went back to the drafting history of
the clause as found in the Articles of Confederation, which read that “free
inhabitants” of each state, with certain named exceptions, were “entitled to
all the privileges and immunities of free citizens in the several States.”
224
Curtis found that, in 1778, South Carolina delegates to the Confederation
Congress tried to amend the language to restrict the clause to “free white
inhabitants.”
225
Their motion failed by a vote of 8–2, with one state
divided; and although the congressional records fail to name which states
voted against the motion, it is safe to assume that the two states voting in
favor of the motion were the two southernmost states, since Georgia’s
House of Assembly had likewise sought to insert the words “white
inhabitants” into the same place within the clause.
226
Evidently, the
Privileges and Immunities Clause in the Articles passed despite the
objections of South Carolina and Georgia. Justice Curtis therefore
concluded: “it is clear, that under the Confederation, and at the time of the
adoption of the Constitution, free colored persons of African descent might
be, and, by reason of their citizenship in certain States, were entitled to the
privileges and immunities of general citizenship of the United States.”
227
The drafting history of the corresponding clause in the Constitution is
likewise shrouded in some obscurity, but it’s clear that it was not drafted as
Va. 1990); see also, MARK A. GRABER, DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL
3–4 (Cambridge Univ. Press 2006) (defending Taney’s account of constitutional history as plausible).
224
. Dred Scott, 60 U.S. at 575 (Curtis, J., dissenting).
225
. Id.
226
. 11 JOURNALS OF THE CONTINENTAL CONGRESS, 1774–1789, at 652 (Worthington C.
Ford ed., Gov’t Prtg. Off. 1908), https://memory.loc.gov/cgi-bin/ampage?collId=lljc&
fileName=011/lljc011.db&recNum=238 [https://perma.cc/RHK8-YNGY]; Georgia House of
Assembly Records (Feb. 26, 1778), in DOCUMENTARY HISTORY OF THE RATIFICATION,
https://rotunda.upress.virginia.edu/founders/default.xqy?keys=RNCN-print-01-01-02-0003-
0014&mode=deref [https://perma.cc/J7Q2-4Y5B] (John P. Kaminski et al. eds., Univ. of Va. Press
2009). For an excellent discussion of the development of this clause in the Articles of Confederation,
see David R. Upham, Exploring “That Unexplored Clause of the Constitution”: The Meaning of the “Privileges
and Immunities of Citizens” Before the Fourteenth Amendment 82–88 (Univ. of Dall. 2002).
227
. Dred Scott, 60 U.S. at 575–76 (Curtis, J., dissenting).
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Charles Pinckney later recollected. As the youngest member of the South
Carolina delegation, Charles Pinckney had not yet reached his twenty-first
birthday (hence, was not yet of voting age) in 1778, when South Carolina
attempted to alter the wording of the Privileges and Immunities Clause in
the Articles of Confederation. In all likelihood, he was ignorant of that
history when he chose to copy this portion of the Articles into his own
1787 Plan of Government. We know that he copied some version of this
wording into his Plan, because in Resolution 3 of the McLaughlin Draft we
find that Wilson wrote: “Mutual Intercourse — Community of Privileges
— Surrender of Criminals — Faith to Proceedings &c.”
228
These word
scraps are a fair summary of the various comity clauses found in Article IV
of the Articles of Confederation. If we had the original Pinckney Plan, we
would probably find that Pinckney copied these clauses verbatim from the
Articles.
Nevertheless, since Pinckney did evidently include some version of the
Privileges and Immunities Clause in his 1787 Plan, how can we know
whether or not his was the final wording adopted into the Constitution? We
know because of one of the final drafts of the Committee of Detail papers,
where the Privileges and Immunities Clause was actually hammered out.
There are no records of the debates in the Committee, but they did leave
behind various stages of their Report, from which their deliberations can be
reconstructed. The members of the Committee added this marginal
notation to one of their final drafts: “The free Inhabs of each State shall be
intitled to all Privileges & Immunities of free Citizens in the sevl. States.”
229
Clearly, this was the same wording, albeit abridged, as the corresponding
clause in the Articles. But the word “Inhabs” was subsequently crossed out
and the word “Citizens” written above it.
230
In the final wording found in
the Committee’s Report, the word “free” was also dropped (probably
because a “free citizen,” unlike a “free inhabitant,” is redundant), and the
final wording found in the Committee of Detail Report was adopted
unchanged into the Constitution.
231
The addition of and changes to the Privileges and Immunities Clause were
in the handwriting of South Carolina Delegate John Rutledge, and numerous
scholars have speculated that Rutledge was responsible for the addition of
228
. See infra Appendix 2; Committee of Detail, III, in 2 RECORDS, supra note 63, at 134, 135.
229
. Ewald & Toler, supra note 148, at 360–61.
230
. Id.
231
. Madison’s Notes (Aug. 6, 1787), in 2 RECORDS, supra note 63, at 177, 187; U.S. CONST.
art. IV, § 2.
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this clause and its wording (and some further suggesting that Rutledge was
copying from the Pinckney Plan when he did so).
232
Yet that interpretation
is unlikely. This manuscript was formed at a late stage of the Committee’s
deliberations. Any changes to their Report could only be made after a
majority of the five members had voted for them; and Rutledge, as chair of
the Committee, was the likely candidate to record all their collective
determinations, including any with which he may have personally
disagreed.
233
That is why we find most of the alterations in this document
in his handwriting; it cannot be presumed that he was the author of all these
changes. The possibility that Rutledge was here recording a change he
personally opposed is supported by South Carolina’s opposition to this
clause when it was later taken up by the whole Convention.
Although we may never know for certain who proposed, altered, or voted
for the final wording of the Privileges and Immunities Clause when it was
drafted within the Committee of Detail, there is one thing we may conclude
with relative certainty: it was not composed by Charles Pinckney. That his
1818 Plan contained the exact wording of the Privileges and Immunities
Clause as it had been altered by the Committee of Detail is just one of the
innumerable clues that prove that the 1818 Plan was a fraud.
The Committee’s Privileges and Immunities Clause passed in the
Convention with little fanfare, but every detail that was recorded marked
South Carolina’s displeasure with its passage. The younger Pinckney may
have been too green to remember South Carolina’s opposition to the similar
clause in the Articles of Confederation, but the other members were not.
When the delegates considered the question, Charles Cotesworth Pinckney
remarked that he “was not satisfied with it. He seemed to wish some
provision should be included in favor of property in slaves.”
234
In a replay
of what happened nearly ten years earlier in the Confederation Congress,
232
. See McLaughlin, Sketch of Pinckney’s Plan, supra note 46, at 739–40 (crediting Rutledge as the
source of the Privileges and Immunities Clause, one of “a number of other provisions, which Pinckney
borrowed from the Articles of Confederation and which . . . found their way into the report of the
committee” and later into the Constitution); Ewald, The Committee of Detail, supra note 64, at 275–76
(crediting Rutledge with inserting the Privileges and Immunities Clause and claiming the Pinckney Plan
was the source of the clause); Robert G. Natelson, The Original Meaning of the Privileges and Immunities
Clause, 43 GA. L. REV. 1117, 1177–79 (2009) (attributing the Privileges and Immunities Clause to
Rutledge).
233
. See Ewald, James Wilson and the Drafting of the Constitution, supra note 174, at 991 (discussing
Rutledge’s duties as chairman of the Committee).
234
. Madison’s Notes (Aug. 28, 1787), in 2 RECORDS, supra note 63, at 437, 443 (recording a
speech by General Pinckney).
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South Carolina again recognized that the Privileges and Immunities Clause
was a potential threat to their slave system; consequently, the state’s
delegates tried to get the wording changed. The two drafting histories also
had nearly identical outcomes: the rest of the delegates were deaf to South
Carolina’s appeals; nine states voted in favor of the clause as it stood; South
Carolina voted against it and Georgia was divided.
235
Since South Carolina
was represented by four delegates (John Rutledge, Charles Pinckney, Charles
Cotesworth Pinckney, and Pierce Butler), their negative vote means that at
least three of them—and possibly all four—voted to reject the
Constitution’s Privileges and Immunities Clause. Since this clause was
adopted over South Carolina’s objection both times it passed (in 1778 and
1787), the modern Court’s assumption that South Carolina was responsible
for the clause’s final wording is deeply ironic, as well as erroneous.
Although the Deep South failed to get the Constitution they wanted in
the eighteenth century, the constitutional con they pulled in the
nineteenth—a con which continues to fool people to this day—managed to
turn their defeat into a sordid sort of victory. They lost the battle over
drafting the Privileges and Immunities Clause, but they won the war over
interpretation.
The Missouri crisis of 1820–1821 was the first time that the Privileges
and Immunities Clause came under close scrutiny. In Missouri’s application
for statehood, their legislature submitted a constitution that sought to bar
free persons of color from entering the state. Northern members of
Congress objected that this provision was unconstitutional, since it denied
black citizens from other states all the privileges and immunities enjoyed by
the citizens of Missouri. Many Southerners countered that only white
Americans could be considered citizens, so Missouri’s constitution did not
run afoul of the U.S. Constitution.
The timing of this controversy could not have been more propitious for
Charles Pinckney. His fraudulent 1818 Plan had been published within the
official records of the Constitutional Convention just a year earlier.
According to the publicly available records, then, it appeared as if Pinckney
was the one who had proposed the exact wording of the constitutional
clause that was just then on everyone’s lips. Writing to his son-in-law,
Pinckney portrayed himself as the hero of the hour during these debates:
“& as it appeared from the Journal of the Convention that in my Plan of
235
. Id. (providing the results of a vote taken immediately following General Pinckney’s
speech).
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Government . . . I had first moved that article in the Convention, reference
was had to me from all sides of the House as to what I meant when I moved
it.”
236
Actually, it does not appear from the records of the House debates
that anyone noticed the Pinckney Plan other than Pinckney, but in that
speech, he made the most of the notice he took. The putative author of the
Privileges and Immunities Clause stated unequivocally that his
understanding at the time that clause was drafted was that no Black
American was then or could ever be a citizen of the United States.
237
It is not known whether Roger Taney ever read Pinckney’s 1821 speech,
but he was certainly channeling its spirit when he drafted the opinion in Dred
Scott. The constitutional con perpetrated by Pinckney in the first decades of
the nineteenth century, and perpetuated by Taney a few decades later, has
been consummated in recent scholarly works and Supreme Course
decisions. The true story is that the Privileges and Immunities Clause was
perceived as a potential threat to the Deep South’s slavery interests both
times it passed, but it passed anyway. This clause of the Constitution, at
least, is demonstrably anti-racist. Pinckney’s later claims that this clause was
drafted by South Carolina and with their racist and pro-slavery
understanding was a fraud. That today’s Supreme Court continues to
believe Pinckney’s duplicitous assertion is a testament to how successful and
intractable the Deep South’s constitutional con has been. But the Court’s
many attributions to Pinckney’s Plan have never been grounded in reliable
sources.
In 1860, Frederick Douglass complained that slaveholders in America
“have given the Constitution a slaveholding interpretation . . . But it does
not follow that the Constitution is in favour of these wrongs because the
slaveholders have given it that interpretation.”
238
For the past fifty years,
Douglass alleged, “the South has made the Constitution bend to the
purposes of slavery.”
239
The nineteenth-century problem Douglass
castigated in 1860 has been made even worse today. Modern scholars and
Supreme Court decisions have not only accepted the constitutional claims
236
. Letter from Charles Pinckney to Robert Y. Hayne (Mar. 31, 1821), supra note 16.
237
. Congressional Speech by Charles Pinckney (Feb. 13, 1821), in 37 ANNALS OF CONG. 1129,
1134 (1821) (Joseph Gales ed., Gales and Seaton 1855).
238
. (1860) Frederick Douglass, “The Constitution of the United States: Is It Pro-Slavery or
Anti-Slavery?”, BLACKPAST (Mar. 15, 2012), https://www.blackpast.org/global-african-history/1860-
frederick-douglass-constitution-united-states-it-pro-slavery-or-anti-slavery/
[https://perma.cc/W84Q-LDV5].
239
. Id.
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made by nineteenth-century Southern partisans; some have imported their
interpretations backwards in time and wrongly superimposed them upon
the Framers in 1787.
The concatenation of falsehoods and errors that have been published
about the Pinckney Plan reminds us of a hard truth. Before anyone can
answer the monumental, overarching, and fascinating questions of
constitutional interpretation—for instance, is the Constitution an inherently
pro-slavery or anti-slavery document?—it is first necessary to undertake the
tedious slog of getting the seemingly trivial facts right.
V. CONCLUSION
No one can deny that Charles Pinckney is primarily to blame for many of
the errors and misinformation regarding the Pinckney Plan and its role in
shaping the Constitution. If he had not circulated so many self-serving
falsehoods, later historians would not have been led so far astray.
Nevertheless, many of the errors in our modern understanding of the
Pinckney Plan are also owing to the misidentification of the Wilson
manuscript that John Franklin Jameson found in 1903. Serious
constitutional experts had already largely discredited the 1818 Plan before
Jameson introduced the error that would revive Pinckney’s reputation.
Once we correct this error, several adjustments in our contemporary
understanding of the Constitution’s formation will necessarily follow. Here
are some of the most obvious ones.
(1) Pinckney’s 1787 Plan of Government was far less important to the
Constitution’s formation than either he or his admirers would have us
believe. (2) The final shape of the Constitution owes more to James
Wilson’s original work on the Committee of Detail than has been hitherto
appreciated. (3) When James Madison discredited the 1818 Plan, he did not
“ruin” Pinckney’s posthumous reputation through envy; he was stating the
plain facts. (4) Andrew McLaughlin’s 1904 discovery of Wilson’s extract of
the Lost Pinckney Plan was more significant than either he or anyone else
has understood until now. And, finally, (5) the original formation of the
Constitution was not as racist or pro-slavery as either the antebellum South
or the modern critics of the Founding have wanted Americans to believe.
Jameson’s misidentification of the Wilson manuscript introduced a
significant error into the scholarship on the Pinckney Plan, but his innocent
mistake cannot be blamed entirely for setting off the wave of Pinckney philia
that engulfed the scholarly literature for generations to come. He never
could have predicted, much less did he wish, that even Pinckney’s spurious
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1818 Plan—which he thought he had buried forever by his lethal
demolition—would one day be disinterred, and its zombie corpse paraded
before an unsuspecting readership as if it were the living truth.
240
But
errors, like zombies, have a way of proliferating when left unchecked.
240
. See generally Burns, supra note 129, at 184.
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APPENDIX 1
THE JAMESON MANUSCRIPT
241
John Franklin Jameson discovered this manuscript among James Wilson’s
papers at the Historical Society of Pennsylvania; it is in Wilson’s own
handwriting and believed to be generated from his days in the Committee
of Detail. The first half of the manuscript (not reproduced below) was a list
of powers clearly extracted from the New Jersey Plan. Only the second half
of the manuscript, the part Jameson believed was an extract of Pinckney’s
Plan, is reproduced here. For ease of reference and comparison to the
McLaughlin Draft, bracketed numbers have been added preceding each
clause; boldface indicates measures corresponding in content (not
necessarily wording) to the extract of the Pinckney Plan found by
McLaughlin; and italics indicate lines which are distinctly different from (though not
necessarily in contradiction to) McLaughlin’s Plan. Strikethroughs were in the
original.
*********
[1] The Legislature shall consist of two distinct Branches — a Senate
and a House of Delegates, [2] each of which shall have a Negative on the
other, [3] and shall be styled the U. S. in Congress assembled.
[4] Each House shall appoint its own Speaker and other Officers, [5] and settle
its own Rules of Proceeding; [6] but neither the Senate nor H. D. shall have
the power to adjourn for more than Days, without the other Consent of both.
[7] There shall be a President, in which the Ex. Authority of the U. S.
shall be vested. [8] It shall be his Duty to inform the Legislature of the
Condition of U. S. so far as may respect his Department — [9] to recommend
Matters to their Consideration — [10] to correspond with the Executives of
the several States — [11] to attend to the Execution of the Laws of the U. S.
— [12] to transact Affairs with the Officers of Government, civil and military
— [13] to expedite all such Measures as may be resolved on by the Legislature
— [14] to inspect the Departments of foreign Affairs — War — Treasury —
Admiralty — [15] to reside where the Legislature shall sit — [16] to
commission all Officers, [17] and keep the Great Seal of U. S. — [18] He shall,
241
. Reproduced from Committee of Detail, VII, supra note 148, at 158–59, and the format
slightly altered according to the images of the original manuscript, which can be seen in the
Pennsylvania Magazine of History and Biography. See generally Ewald & Toler, supra note 148, at 305–
09 (providing images and transcripts of “Excerpts from the New Jersey and Pinckney Plans”).
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by Virtue of his Office, be Commander in chief of the Land Forces of U. S.
and Admiral of their Navy — [19] He shall have Power to convene the
Legislature on extraordinary Occasions — [20] to prorogue them, provided
such Prorogation shall not exceed Days in the space of any — [21] He may
suspend Officers, civil and military
[22] The Legislature of U. S. shall have the exclusive Power — [23] of
raising a military Land Force — [24] of equipping a Navy — [25] of rating
and causing public Taxes to be levied — [26] of regulating the Trade [27]
of the several States as well with foreign Nations as with each other — [28] of
levying Duties upon Imports and Exports — [29] of establishing Post-Offices,
[30] and raising a Revenue from them — [31] of regulating Indian Affairs —
[32] of coining Money — [33] fixing the Standard of Weights and
Measures — [34] of determining in what Species of Money the public
Treasury shall be supplied.
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[35] The foederal judicial Court shall try Officers of the U. S. for all Crimes
&C in their Offices
242
— [36]
and to this Court an Appeal shall be
allowed from the Courts of
243
[37] The Legislature of U. S. shall have the exclusive Right of instituting
in each State a Court of Admiralty for hearing and determining
maritime Causes.
242
. Clause 35 is not in boldface, because it is not found in the McLaughlin Draft. However,
there is a strong case to be made that Clause 35 was originally a part of the Pinckney Plan. In 1786,
Pinckney, acting as head of a congressional committee, drafted a series of proposed amendments to
the Articles of Confederation, and many of these provisions were clearly copied into the Plan he
proposed at the Convention a year later. Article XIX from the 1786 Report states,
[Congress has] exclusive power of declaring what . . . shall be deemed treason, and . . . misprision
of treason, . . . and power to institute a federal judicial court, for trying and punishing all officers
appointed by Congress, for all crimes, offences and misbehaviour in their offices, and to which court an appeal
shall be allowed from the judicial courts of the several states . . . .
U.S. Continental Cong. et al., supra note 199, at 5. All these provisions, with the notable exception of
the italicized words, were copied in abbreviated form into Resolution 15 of the McLaughlin Draft:
Congress “shall have the exclusive Power of declaring what shall be Treason & Misp. of Treason agt.
U. S. — and of instituting a federal judicial Court, to which an Appeal shall be allowed from the judicial
Courts of the several States.” See infra Appendix 2. The judiciary provisions that Wilson wrote into
Clauses 35 and 36 of the Jameson Draft seem to track more closely to Pinckney’s 1786 Report than to
the extract of the Plan found by McLaughlin: “[35] The foederal judicial Court shall try Officers of the
U. S. for all Crimes &C in their Offices — [36] and to this Court an Appeal shall be allowed from the
Courts of.” Both clauses are close approximations of Pinckney’s 1786 Report, though Wilson changed
his mind and crossed out Clause 36 before completing the thought. In sum, it seems irresistible that
Clause 35 must have come from a Pinckney source: either Wilson had the 1786 Report in front of him
or Pinckney’s Plan as he wrote Clauses 35 and 36. Some final confirmation that Pinckney’s original
draft contained this clause is found in his pamphlet, the 1787 “Observations.” This source, in which
Pinckney purports to describe the Plan he proposed the previous May, is untrustworthy as a guide to
the Lost Plan when taken by itself; however, he does propose the clause which is confirmed by its
similarities to both his 1786 Report and the transition point where Wilson turns to Pinckney’s Plan in
Clause 35 of Jameson’s Draft. In the “Observations,” Pinckney proposes a “Federal Judicial Court, . . .
capable of taking cognizance of [the Union’s] officers who shall misbehave in any of their
departments.” Pinckney, “Observations”, supra note 44, at 117.
243
. Clearly, Wilson was copying from Pinckney’s Plan at Clause 36, but he changed his mind
and crossed it out before finishing the sentence. By crossing out this line, Wilson does not merely omit
a provision found in the original Pinckney Plan; he changes the nature of the “federal judicial court”
from Pinckney’s Plan (which is why Clause 36 is in both boldface and italics). Pinckney had given the
Supreme Court appellate jurisdiction over decisions made by the state courts; the Committee of Detail
followed the Convention’s wish to give the Court appellate jurisdiction over lower federal court
decisions. Therefore, this crossed out clause (among others) demonstrates that whatever Wilson’s aim
was in drafting the Jameson Draft, he was not attempting to write a faithful extract of the Pinckney
Plan.
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[38] The power of impeaching shall be vested in the H. D. — [39] The
Senators and Judges of the foederal Court, be a Court for trying
Impeachments.
[40] The Legislature of U. S. shall possess the exclusive Right of establishing
the Government and Discipline of the Militia of — [41] and of ordering the
Militia of any State to any Place within U. S.
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APPENDIX 2
THE MCLAUGHLIN MANUSCRIPT
244
Andrew McLaughlin discovered this manuscript at the Pennsylvania
Historical Society in 1904. It was originally written in James Wilson’s
handwriting, and it was presumably drafted while he was serving on the
Committee of Detail.
*********
1 A Confederation between the free and independent States of N. H. &c. is
hereby solemnly made uniting them together under one general
superintending Government for their common Benefit and for their Defense
and Security against all Designs and Leagues that may be injurious to their
Interests and against all Forc[e] [or “Foes”] and Attacks offered to or made
upon them or any of them
2 The Stile
3 Mutual Intercourse — Community of Privileges — Surrender of Criminals
— Faith to Proceedings &c.
4 Two Branches of the Legislature — Senate — House of Delegates —
together the U. S. in Congress assembled
H. D. to consist of one Member for every thousand Inhabitants 3/5 of Blacks
included
Senate to be elected from four Districts — to serve by Rotation of four Years
— to be elected by the H. D. either from among themselves or the People at
large
5 The Senate and H. D. shall by joint Ballot annually choose the Presidt. U. S.
from among themselves or the People at large. — In the Presidt. the executive
Authority of the U. S. shall be vested. — His Powers and Duties — He shall
have a Right to advise with the Heads of the different Departments as his
Council
6 Council of Revision, consisting of the Presidt. S. for. Affairs, S. of War,
Heads of the Departments of Treasury and Admiralty or any two of them togr
wt the Presidt.
244
. Reproduced from Committee of Detail, III, supra note 228, at 134–37. Images and
transcripts of the original manuscript may be seen in Ewald & Toler, supra note 148, at 249–61.
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7 The Members of S. & H. D. shall each have one Vote, and shall be paid out
of the common Treasury.
8 The Time of the Election of the Members of the H. D. and of the Meeting
of U. S. in C. assembled.
9 No State to make Treaties — lay interfering Duties — keep a naval or land
Force (Militia excepted to be disciplined &c according to the Regulations of
the U. S.
10. Each State retains its Rights not expressly delegated — But no Bill of the
Legislature of any State shall become a law till it shall have been laid before S.
&. H. D. in C. assembled and received their Approbation.
11. The exclusive Power of S & H. D. in C. Assembled
12. The S. & H. D. in C. ass. shall have the exclusive Power of regulating
Trade and levying Imposts — Each State may lay Embargoes in Time of
Scarcity
13 ——— of establishing Post-Offices
14. S. & H. D. in C. ass. shall be the last Resort on Appeal in Disputes between
two or more States; which Authority shall be exercised in the following
Manner &c
15. S. & H. D. in C. ass. shall institute Offices and appoint Officers for the
Departments of for. Affairs, War, Treasury and Admiralty —
They shall have the exclusive Power of declaring what shall be Treason &
Misp. of Treason agt. U. S. — and of instituting a federal judicial Court, to
which an Appeal shall be allowed from the judicial Courts of the several States
in all Causes wherein Questions shall arise on the Construction of Treaties
made by U. S. — or on the Law of Nations — or on the Regulations of U. S.
concerning Trade & Revenue — or wherein U. S. shall be a Party — The
Court shall consist of Judges to be appointed during good Behaviour — S. &
H. D. in C. ass shall have the exclusive Right of instituting in each State a
Court of Admiralty, and appointing the Judges &c of the same for all maritime
Causes which may arise therein respectively.
16. S & H. D. in C. ass. shall have the exclusive Right of coining Money —
regulating its Alloy & Value — fixing the Standard of Weights and Measures
throughout U. S.
17. Points in which the Assent of more than a bare Majority shall be necessary.
18 Impeachments shall be by the H. D. before the Senate and the judges of
the federal judicial Court.
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782 ST. MARY’S LAW JOURNAL [Vol. 53:711
19. S. & H. D. in C. ass. shall regulate the Militia thro’ the U. S.
20. Means of enforcing and compelling the Payment of the Quota of each
State.
21. Manner and Conditions of admitting new States.
22. Power of dividing annexing and consolidating States, on the Consent and
Petition of such States.
23. The assent of the Legislature of States shall be sufficient to invest future
additional Powers in U. S. in C. ass. and shall bind the whole Confederacy.
24. The Articles of Confederation shall be inviolably observed,× and the
Union shall be perpetual; ×unless altered as before directed
245
25 The said States of N. H. &c guarantee mutually each other and their Rights
against all other Powers and against all Rebellions &c.
245
. According to Farrand: “The crosses are evidently intended to indicate that the last two
clauses should be reversed.” Committee of Detail, III, supra note 228, at 136 n.5.
72
St. Mary's Law Journal, Vol. 53 [2021], No. 3, Art. 2
https://commons.stmarytx.edu/thestmaryslawjournal/vol53/iss3/2
