Emptying Out the Shelf #2

Here is one of the sample columns I wrote when I was trying to get an opinion column in The Observer, the campus newspaper at Notre Dame. It was one of my better efforts, I thought. When I submitted this column, the editor sent back an e-mail saying that he liked the column, but wanted to know if I could write about less serious things. I thought that was an odd request and almost out of spite, wrote a column about Tecmo Super Bowl. I got the job. I'll run that one later, for know, it's time for a history lesson. (Try not to groan so loudly.)

An Unpardonable Action

Marc Rich decided to use his billions to flee to Switzerland rather than stand trial for tax evasion. Oscar Collazo attempted to assassinate President Truman, and in doing so shot and killed a White House police officer. Orlando Bosch placed an explosive device in the bathroom of a Cuban airplane, killing all 73 people aboard.

Do you know what these men have in common? United States Presidents, who swear to protect and defend the Constitution, thought fit to give them unconditional pardons for their offenses, circumventing this country’s justice system through the use of a Constitutional relic which must be abolished.

If you think that such unquestioned power as provided in the form of the pardon is more appropriate for a monarch than for a President who is supposed to be accountable to the public, you are quite right. The pardon is a carry-over from the English monarchy, and the story of its inclusion in our system of government is a testament to its egregiousness.

At the Constitutional Convention in 1787, the pardon’s inclusion was one of the pet causes of Alexander Hamilton. Hamilton, though more famous for his financial wizardry as the first secretary of the treasury, and of course for being shot by Aaron Burr, was well known in his day as a supporter of a powerful federal government. Many of his proposals at the Philadelphia Convention were interpreted by his peers as supporting a sort of elected monarch, a charge which was levied against him in later years, sullying his reputation. The pardon is one of the few of Hamilton’s ideas which was adopted.

Hamilton defended placing the unchecked power of the pardon in the hands of the president in Federalist No. 74. His argument is more like a defense of kingly power in general than a specific reasoning in favor of the pardon. Hamilton states as proven the notion that the pardon is a necessary part of government, to mitigate the occasional severity of the law. Therefore, Hamilton focuses his argument on why it is not so bad that the power should be vested in one person. According to Hamilton, the location of the power in a single person “would naturally inspire scrupulousness and caution” and that “the dread of being accused of…connivance” would also make the President pause.

Of course, American presidents have always been known for their fear of perceived “connivance.” This fear explains perfectly why Bill Clinton steadfastly refused to grant a pardon to his half-brother Roger, and why George W. Bush stood up to pressure from his own vice president to force Scooter Libby to pay off his debt to society. Oops.

President Bush can try to impress Americans by saying he deliberated at length over his choice to grant a reprieve to a man whose guilt is not even really contested, but it doesn’t really matter how long you consider a question if you still get the answer wrong. Libby’s sentence was not commuted in an attempt to show mercy on someone deserving of it, instead it was a political favor done to help the vice president’s friend, and, unlike any other action the president may take, there is nothing anyone can do about it but complain. Congress is unable to review a pardon and the courts can not reverse it. As a second term president, Bush no longer has to worry about the public turning him out of office, either.

Hamilton’s other argument in favor of the pardon power being in the president’s hands instead of the legislature is that in certain circumstances it will be beneficial to act quickly, and the legislature might allow “the golden opportunity” to pass. Like his first argument, this is more of a defense of monarchical power in total than a defense of the pardon, as the same argument could be applied universally, to every issue that can be raised.

The Founders decided that the legislative and judicial branches, as checks to the power of the president and to each other, were important enough to overcome the drawbacks of delay and indecision. Hamilton’s disagreement with this philosophy is evident in his writing, so it remains a mystery why the pardon power snuck through as really the only unchecked power of the president.

Whether presidents have ever been as scrupulous or cautious as Hamilton evidently expected them to be is a matter of debate. What has become abundantly clear over the course of the last several administrations, of both parties, is that they no longer are. There are times when pardons are called for, certainly, but why not let the issue be debated, or at least, held in check by the other branches of government. At the very least, administration officials like Scooter Libby would have to think twice before committing a crime, unable to count on a favor from a friend in a high place.