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February 9, 2010 9:31 AM

Discovering a New (Old) Constitution

Posted by Zach Lowe

As a history nerd, we really perked up when we read the story of a lawyer/researcher who had discovered a previously unknown draft of the U.S. Constitution written by one of the document's framers, James Wilson. The researcher, Lorianne Updike Toler, founded a nonprofit organization called the Constitutional Sources Project in 2005. The project's mission: track down and post online documents related to America's founding. 

We poked around a little and found out that ConSource, as the organization calls itself, has deep--and unglamorous--roots in the Am Law world. Specifically, the idea of ConSource came out of one Am Law 100 partner's experience with something we imagine many parents truly dread: helping their high-school-age child complete a massive academic project. 

The Am Law partner in question is Randall Guynn of Davis Polk & Wardwell, a history buff who heads the firm's financial institutions practice and has played a central part in several high-profile bank deals during the Wall Street crisis and in its aftermath.

In the summer of 2004, Guynn's son, Steve, was set to begin his senior year at New Canaan High School and needed to come up with an idea for a senior project. About twenty years earlier, when Guynn himself was a first-year associate at Davis Polk, he had done some research for an article on religious freedom and the U.S. Constitution. (A religious law journal eventually published the paper.)

Guynn remembered the frustration of trekking to various dusty libraries to find court briefs and other documents dating to the early 1800s. He thought it would be a good idea to build a Web site where users could find those documents, and he suggested his son build the site as his senior project. "He thought it was a great idea initially," Guynn says. "And I underline initially."

A member of the U.S. Supreme Court bar at the time, Guynn traveled with his son to Washington, D.C. The two spent eight hours one day in the Court's archives, photocopying briefs from early cases dealing with religious freedom.

"On the way home," Guynn says, "my son announced that this was the most boring project in the history of the world, and that he was resigning. I prevailed on him that he was making a mistake, but it kinda died." Steve ended up focusing on sports photography for his senior project, Guynn says. "That was probably a lot more fun."

Meanwhile, in the late summer of 2004 Toler was finishing a stint as a summer associate at Kirkland & Ellis's Washington, D.C., office. Over the summer, Toler had become friendly with Guynn's niece, Michelle Quinn, who was also living in the city at the time. Toward the end of the summer, Quinn invited Toler and several friends to New Canaan for a weekend. When Guynn mentioned the abandoned Web site idea over dinner one night, Toler immediately took a strong interest. She had been working on a paper about the law and religion (with a focus on Thomas Jefferson's writings) for a class at the J. Reuben Clark Law School at Brigham Young University, where she was about to begin her third year. She wondered whether it would be possible for her to take up Guynn's idea. "I just about choked," Guynn says. "We had the copyright, but I told her to go ahead and do it." 

Toler remembers it a bit differently. "He thought I would be the perfect person to pawn this off on," she says with a laugh, "because I had nothing better to do during my third year of law school."

A few months later, Guynn was stunned to receive a 50-page business plan for a Web site from Toler. The pair then got in touch with Gene Schaerr, a partner at Winston & Strawn and an undergrad classmate of Guynn's at BYU. (Both later clerked at the Supreme Court.) Schaerr and Winston took Toler and the fledgling business on as a pro bono client. The firm (with help from Guynn) prepared the 501(c)(3) paperwork, recruited some high-profile scholars who could serve as advisers (including Jack Balkin of Yale Law School), and helped Toler raise funds.

As her 2005 law school graduation approached, Toler was wheelchair-bound due to an episodic version of a rare movement disorder (since cured). She realized that a big-firm job would be too demanding given her medical condition. She began to focus more on turning Guynn's idea into a viable nonprofit that could provide her with a job. "I asked everyone I knew for money," she says. She also left Utah after graduation, packed all of her things into her 1989 Honda Accord (with no air conditioning, she says), tied a bunch of them down to the roof with rope, and drove to Washington. Winston let her set up shop in its D.C. offices, she and Schaerr say.

By January 2006, the site was up, Toler had the job she wanted, and Guynn and Schaerr helped her organize a kickoff banquet at the Supreme Court. At the banquet, Justices Antonin Scalia and Stephen Breyer spoke at length about the history of the U.S. Constitution to about 100 guests. "It was just raw, hard work," says Toler, who is now studying for her doctorate in history at the University of Oxford. (She's focusing on--guess what?--the British influence on the U.S. Constitution.)

Toler stepped down as head of ConSource in early 2009. The site has scanned thousands of primary documents and developed curricula for schools at all levels, she says. Schaerr and Guynn remain board members. Both say they were thrilled to hear of Toler's discovery earlier this month, and Toler says she has already seen an uptick in fund-raising as a result of the publicity over the mystery draft. (For a nice narrative of the discovery, we recommend this story in the Philadelphia Inquirer.) Winston continues to do work for ConSource and assigns various research projects to summer associates each year, Schaerr says. Schaerr is still doing research for ConSource on aspects of the Constitution that were meant to help U.S. businesses flourish, he says. 

"It started so humbly," Guynn says of ConSource. "Lorianne really took it from there and built it into what it is now."

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