From the WSJ Opinion Archives
DISPATCH
I Beg Your Pardon . . .
If theres an angle the founders failed to figure on, I cant find it.
Begging your pardon, but the brouhaha over Bill Clinton's presidential pardons has sent me into my study to consult that great five-volume set known as the Founders' Constitution. It is a compilation, put together by Prof. Philip B. Kurland and Prof. Ralph Lerner of the University of Chicago, of all sorts of documents relating to our nation's legal bedrock. These documents, mostly from the founding period but in some cases from before and after, are grouped according to the clause of the Constitution to which they relate.
The power to pardon is delegated to the president in Article II, Section 2, Clause 1, which says simply that the president "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." There are 30 documents excerpted with respect to the clause, starting with the Records of the Federal Convention, wherein one finds this sardonic note from the great George Mason, to wit: "The President of the United States has the unrestrained power of granting pardons for treason, which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt."
No one was talking about Susan McDougal committing treason, but the bit about the president thereby preventing a discovery of his own guilt--well, let's just say the founders went into this thing with their eyes open.
Luther Martin of Maryland underscored this point in his celebrated memorandum "The Genuine Information." He reported that "the Power given to the President of granting reprieves and pardons, was also thought extremely dangerous." What the founders appeared to have been most worried about was that, as Martin put it, the president was being given the "power of pardoning those who are guilty of treason." And the problem with that, he pointed out, is that "it is said that no treason was so likely as that in which the President himself might be engaged." By this he meant the "attempt to assume to himself powers not given by the constitution, and establish himself in regal authority; in which attempt a provision is made for him to secure from punishment the creatures of his own ambition, the associates and abettors of his treasonable practices, by granting them pardons should they be defeated in their attempts to subvert the constitution."
A note by William Blackstone, in his commentaries issued in the 18 years before the Philadelphia convention, is included by Messrs. Kurland and Lerner. Blackstone reckoned that it was one of the advantages of monarchy that there is a magistrate, as he put it, who has it in his power to extend mercy, "wherever he thinks it is deserved; holding a court of equity in his own breast, to soften the rigour of the general law . . ."
Hamilton, writing in Federalist 74, asserted that "humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed" (whatever Rudy Giuliani might suggest more than two centuries later). Hamilton was writing the Federalist to get the Constitution through its difficult ratification fight in Mr. Giuliani's home state, which makes his logic all the more dramatic, to wit: "The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."
One Gilbert Livingston tried, on July 4, 1788, to get the New York ratifying convention to adopt a proposal to, among other things, prevent the president from granting a pardon for treason without the consent of the Congress," but this proposal failed to prosper.
The delegation of the pardoning power to the president was defended with particular clarity by James Iredell in the North Carolina ratifying convention. It is, he said, "the genius of a republican government that the laws should be rigidly executed, without the influence of favor or ill-will--that when a man commits a crime, however powerful he or his friends may be, yet he should be punished for it." But, he went on to argue, "surely there is no gentleman in the committee who is not aware that there ought to be exceptions . . . because there may be many instances where, though a man offends against the letter of the law, yet peculiar circumstances in his case may entitle him to mercy. "
There's also an essay by William Wirt, written in 1820. "The power of pardon, as given by the constitution, is the power of absolute and entire pardon," he wrote. "On the principle, however, that the greater power includes the less, I am of the opinion that the power of pardoning absolutely includes the power of pardoning conditionally." He says he has heard of convicts being pardoned by the president on the condition of joining the U.S. Navy. It made me wonder whether Mr. Clinton had reckoned with all this when he asked that Marc Rich and Pincus Green waive certain defenses against any civil suit the U.S. may bring.
The notes end with a commentary of Joseph Story from 1833. He speaks of the power of pardon being "general and unqualified, reaching from the highest to the lowest offenses." He asserts that the "power of remission of fines, penalties, and forfeitures is also included in it" and says that "no law can abridge the constitutional powers of the executive department, or interrupt its right to interpose pardon."
It has been said, he reports, that the admission of the power to pardon is a "tacit acknowledgment of the infirmity of the course of justice." But if this be a defect at all, he adds, it arises from the infirmity of human nature generally. And in this view, he explains, it is "no more objectionable, than any other power of government; for every such power, in some sort, arises from human infirmity."
To which one can only add: Case closed.
Mr. Lipsky is a contributing editor of The Wall Street Journal. His column appears Wednesdays.
