The Mystery of the Pinckney DraughtNott, Charles C.
History
The Mystery of the Pinckney Draught
Nott, Charles C.
Constitutional history -- United States; Pinckney, Charles, 1757-1824
This assuredly seems to be an instance which confirms Madison; that is
to say an instance where as Madison said there are to be found in the
draught in the State Department, "the results of critical discussion and
modification in the Convention." Must we also add, with Madison "which
could not have been anticipated"? Moreover if Pinckney obtained this
provision by purloining it, he must have taken it from the Constitution
itself. The language in his draught apparently involves and combines
three distinct acts of the Convention; the adoption of the resolution of
Martin on the 17th of July; the acceptance of the Committee's draught of
the 6th of August; the revision by the Committee of Style, just before
the dissolution of the Convention. This makes a dark charge against
Pinckney--far darker and more specific than any charge that Madison
preferred against him. At first sight it seems as if at last Pinckney
was taken in the toils of his own weaving, as if there were no escape
for him and that he must be convicted. But the simple explanation is
that Pinckney took his provision and its verbiage from the Congress of
the Confederated States in the resolution of March 21st 1787. Luther
Martin did not adhere to the language of the resolution; and he did not
intend to; for his resolution was a compromise, an alternate for a
proposed power in Congress to negative the laws of the States, and he
intended that his resolution should bear directly and explicitly upon
"the respective States." The subject was one of great importance, of
surpassing interest and had but recently been disposed of by compromise
in the Convention, and the Committee properly adhered to Martin's
resolution, correcting only one word by the substitution of another,
"several" for "respective," "shall be the supreme law of the several
States."
Pinckney had been a member of the Congress when the resolution of March
21st was passed; he may have draughted it himself; and certainly it
covered a matter in which he was interested above all other things, the
supremacy of the National Government. The Committee of Style may have
taken the concluding phrase from the resolution of Congress or they may
have placed it in the Constitution on their own motion; for _Trevett_ v.
_Weeden_ had been heard and adjudicated by the Supreme Court of Rhode
Island on September 25th, 26th, 1786, and the words "THE LAW OF THE
LAND" were in the air; and the term had received a judicial significance
which has never been adequately appreciated. It meant an authority
higher than a statute.
Public-domain text, read in full here on John Shaqi.
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