How James Madison’s forensic science work could save American democracy, 200 years later

Nov 20, 2022 | Salon.com

James Madison | US Constitution Photo illustration by Salon/Getty Images

It might surprise you to learn that an amateur forensic investigator from 200 years ago may have inadvertently helped save American democracy. More surprising yet, this particular detective was also an American president — and while his methods may have been crude by today’s standards for laboratory detective work, the results speak for themselves.

The story begins with James Madison, who is best known as America’s fourth president — during which time he lead America through the War of 1812 — as well as a co-author of both the United States Constitution and the Federalist Papers. Yet in the final years of his life, Madison took it upon himself to debunk a document that its writer claimed had been an early draft of the Constitution. That author, South Carolina politician Charles Pinckney, had been a delegate at the Constitutional Convention in 1787, so his assertion was at least superficially plausible. Yet Madison was convinced that Pinckney was wrong about the purported early draft, and went about proving exactly that.

“I think this is a great example of why historians should be trusted to to do the deep research and uncover the historical evidence.”

More than two centuries later, Madison’s actions may (as stated before) help save democracy. This is because Pinckney’s document argued that state legislatures should have near-absolute authority over federal elections, a belief known as the independent state legislature doctrine. Conservatives on the Supreme Court are now contemplating saying that this was the founding fathers’ intention all along, using Pinckney’s draft as a foundational document, even though his ideas were never implemented and the father of the Constitution himself personally discredited the Pinckney draft’s authenticity. If the far right-wing faction of the Supreme Court prevails in Moore v. Harper, they will have effectively used Pinckney’s language to empower partisan legislatures to throw out unfavorable election results for any reason they please — just as Donald Trump tried to convince swing states to do after losing the 2020 presidential contest

It is safe to say that this is not what Madison would have wanted, as indicated by how nearly 70 amicus briefs have already been filed so far urging the Supreme Court not to buy into the Trump movement’s spurious argument. Yet President Joe Biden’s victory over Trump wasn’t even a glint in Madison’s eye when he went out debunking the Pinckney draft. He was just trying to make sure that the record about the Constitution’s drafting in 1787 was as accurate as possible.

The story begins in 1818 when John Quincy Adams, then Secretary of State, was creating an archive of documents about the events that had happened during the Constitutional Convention more than 40 years earlier. In addition to the records owned by the federal government, Adams also accepted records sent to him by various major principals. Since it was not traditional practice at the time to transcribe debates, the records usually included the motions and their voting results. There were also various purportedly original documents submitted for consideration, however, and Adams learned from the record that Pinckney had authored an early draft for a possible constitution. Yet that draft was lost, so Adams and President James Monroe reached out to Madison to (among other things) see if he happened to have it. Madison replied that he did not, so Adams then reached out to Pinckney. The South Carolinian replied that he had four or five drafts of what could have been his original plan that were very similar to each other, but was unable to recall which one he submitted. Pinckney sent Adams the one he asserted was most likely to be that original document, and Adams included it in his volume with a footnote that it was not part of the official historical record.

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As Madison proved years later, it actually wasn’t part of Constitutional history at all. Because he was a product of the Enlightenment, Madison understood the importance of using an empirical methodology when trying to assess a document’s authenticity. Forensic science did not exist in 1787 — indeed, criminalistics would not be created for more than a century — but Madison had mastered the use of deductive logic through vigorous research practices through his careers as lawyer, diplomat and statesman. He was, in other words, a forensic scientist in all but name (largely because the name of the field had yet to be coined). That is why, when he exposed the Pinckney draft as inauthentic, he was apparently “perfectly confident” in doing so.

As the records show, Madison was “perplexed” when he first saw the Pinckney draft — because, in several significant ways, it was exactly the same as the final version of the Constitution. This was especially odd because Pinckney’s version had been filed at the beginning of the convention, and “some of these very points [that were identical to the final version] grew out of the long debates” which had only occurred as the convention dragged on. Because Pinckney’s version included ideas that hadn’t been contemplated until later discussion, Madison speculated that Pinckney may have revised his earlier drafts as the proceedings continued and then forgotten having done so, meaning he mistook his modified version for the original document.

Madison was not relying solely on his memory. He also pointed out that, after comparing Pinckney’s letter with documents from various Virginia delegates who had also attended the convention, he had noticed a number of discrepancies. He had wished to write to Pinckney “asking, and even requiring, an explanation,” but had been unable to do so before Pinckney’s death in 1824. Even though Madison acknowledged to feel “some embarrassment” bringing this up posthumously and to Pinckney’s detriment, doing so was necessary because Madison was entirely confident that — whatever the explanation — Pinckney had submitted an inauthentic document. Madison was not an official historian, but he was a diligent student of history, and knew that even though he had lived through these events, his word was not enough. He used a historian’s methods to confirm his suspicions.

“The only evidence that exists for this claimed Pinckney plan is on paper that is dated by watermark 1797.”

“Over time he became increasingly obsessed,” historian Mary Sarah Bilder, of Boston Law School, wrote to Salon. “By 1831, he had decided that the evidence was ‘irresistible’ that it wasn’t the original plan.” He stayed in contact with a historian named Jared Sparks who was also working to figure things out, and had heard perspectives from other founding fathers who were likewise dubious of Pinckney’s document. Sparks “suggested that it was that Pinckney was trying to claim lots of credit and Adams had never been able to get another copy from Pinckney,” Bilder observed.

The story does not end in Madison’s era. Flash forward to 1902, when a man named Gaillard Hunt is the Chief of the Manuscripts Division for the Library of Congress. While examining James Madison’s papers for a work editing them, he had a chance to check out the Pinckney draft and noticed something intriguing about the watermarks: They were from 1797, a decade after the Constitutional Convention. In addition, Hunt believed that the Pinckney draft’s paper and ink were identical to the paper and ink that Pinckney had used to reply to Adams.

“Having done watermark/penmanship forensic work, I’d be conservative on this,” Bilder told Salon. “All one can say is that the draft was created after 1797. Pinckney could have been copying something over, he could have been recreating it in 1818, he could have created it in 1797 and then used that paper to write Adams … all unknowable. But what we can say is that the only evidence that exists for this claimed Pinckney plan is on paper that is dated by watermark 1797.”

At this point, the only question that remains is whether the Supreme Court is willing to seriously consider the argument made by North Carolina’s legislature, which is controlled by Republicans and is pushing for the independent state legislature doctrine. Political and judicial arguments aside, it would be bitterly ironic if history winds up being significantly changed by people who ignore proper historiographical practices.

“I think this is a great example of why historians should be trusted to to do the deep research and uncover the historical evidence,” Eliza Sweren-Becker, counsel in the Voting Rights & Elections Program at the Brennan Center for Justice, told Salon about both Madison’s research and the amicus briefs submitted in 2022 that back him up. “That’s what they’re trained to do and reflects the dangers of the court or others undertaking a historical analysis without the full history in front of them and without the training as historians.”

Originally from Salon.com