Presidential Pardon | New NY 23rd


But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.–The Federalist Papers : No. 74 (Hamilton)

I find the existence of the Presidential Pardon in the Constitution surprising. It was a right of the British monarch, and monarchy was not popular with the authors of the Constitution. The monarch’s power in Britain has long been superseded there by a Royal Commission, yet a similar power lingers here.

Perhaps the Presidential pardon was included as part of the system of “balance of powers”–a Presidential check on the judiciary.

Hamilton notes the danger that a hint of a pardon might “hold out the prospect of impunity;” we see that danger today. Hamilton assumes a President wouldn’t telegraph the possibility of pardon (it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity); this view now seems overly optimistic. Hamilton also notes that a pardon granted for a questionable purpose could “embolden guilt.” One might reasonably believe today that pardons granted for election law violations would indeed encourage future violations.

The power to grant pardons and reprieves in the United Kingdom is known as the Royal prerogative of mercy. It was traditionally in the absolute power of the monarch to pardon an individual for a crime, whether or not he or she had been convicted, and thereby commute any penalty; the power was then delegated both to the judiciary and the Sovereign’s ministers. Since the creation of legal rights of appeal, the Royal prerogative of mercy is no longer exercised by the person of the sovereign, or by the judiciary, but only by the government.–Wikipedia

When requests for pardons are reviewed by the Dept. of Justice using accepted guidelines, there is little reason for concern. When granted on the whim of the President for questionable reasons, the broad power of the Presidential pardon seems unwise.

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