The Constitution itself merely provides the President with the power to issue pardons in cases of federal crimes (Art. II, Sec. 2, Cl. 1: “The President . . . shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment”), but does not elucidate any purpose. However, in Federalist Papers Hamilton engages in a relatively lengthy discussion of the issue of the pardon power, devoting almost all of #74 to it, though much of this entails an attempt to justify providing the President, rather than the legislature or other body, with this power. The rationale that Hamilton offers for this seems rather strained at best. He wrote:
The Avalon Project : Federalist No 74
In #69, Hamilton briefly and superficially considers the Presidential pardon power in a single paragraph:
The Avalon Project : Federalist No 69
In a blog post for Brookings Institute, professor D. W. Buffa notes an exchange between George Mason and James Madison on the President's power to pardon. See: The pardon power and original intent
In the 1866 case of Ex Parte Garland, the Court heard a challenge to an 1862 law that required all federal public servants to take an oath affirming that they had never taken up arms against the US and had never given aid to persons or supported any government that had engaged in any sort of hostilities toward the US. An attorney, Mr. Garland, who had been previously admitted to practice in federal court abandoned his practice during the Civil War and was elected a Senator from Arkansas after the state's secession. At the close of the Civil War, Garland received a full pardon from President Johnson, and sought to resume his practice in federal court, but he obviously could not take the prescribed oath. He argued that the law was unconstitutional. The Court ruled in his favor, and, among its dicta, the Court noted that the Presidential pardon power “is unlimited” with the exception of cases of impeachment, that the power extends to every offense, and is intended to relieve the person who receives a full pardon of all punishments for all crimes he has committed or may be charged with committing. But, again, all of these comments were just dicta, not an element of the ratio decidendi, indeed, not relevant to the question the Court was answering.
The Court has never had the opportunity to determine whether or not a particular pardon by the President is constitutional. Yet, the Court generally treats actions by the President analogously to acts of Congress, and one can easily imagine how a pardon could be unconstitutional by infringing a fundamental right (e.g., by pardoning all white people convicted of murdering African Americans). Moreover, in attempt to determine the constitutionality of a governmental act, the Court routinely seeks to understand what is or was the purpose of a provision in the Constitution. To cite just a few examples from a single decision, First National Bank v. Bellotti:
So my questions here are multiple and open-ended. What is the purpose of the President's pardon power? Is it to rescue a wrongly convicted person being punished for a crime? Is it to prevent the President's friends, allies or family members from being tried and/or punished for crimes regardless of their guilt?
Does the purpose include the power to pardon someone so that the person can commit a crime (e.g., theft) in the future with impunity?
Is there any reason why the Court should not entertain cases challenging the constitutionality of a pardon?
Is there any reason why the Court should not look beyond the four corners of the Constitution in order to discern the purpose of the President's power to grant pardons?
[The President is] authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.'' Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. 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. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.
The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary.
On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. 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 expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary.
On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. 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 Avalon Project : Federalist No 74
In #69, Hamilton briefly and superficially considers the Presidential pardon power in a single paragraph:
The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? The better to judge of this matter, it will be necessary to recollect, that, by the proposed Constitution, the offense of treason is limited "to levying war upon the United States, and adhering to their enemies, giving them aid and comfort''; and that by the laws of New York it is confined within similar bounds.
The Avalon Project : Federalist No 69
In a blog post for Brookings Institute, professor D. W. Buffa notes an exchange between George Mason and James Madison on the President's power to pardon. See: The pardon power and original intent
In the 1866 case of Ex Parte Garland, the Court heard a challenge to an 1862 law that required all federal public servants to take an oath affirming that they had never taken up arms against the US and had never given aid to persons or supported any government that had engaged in any sort of hostilities toward the US. An attorney, Mr. Garland, who had been previously admitted to practice in federal court abandoned his practice during the Civil War and was elected a Senator from Arkansas after the state's secession. At the close of the Civil War, Garland received a full pardon from President Johnson, and sought to resume his practice in federal court, but he obviously could not take the prescribed oath. He argued that the law was unconstitutional. The Court ruled in his favor, and, among its dicta, the Court noted that the Presidential pardon power “is unlimited” with the exception of cases of impeachment, that the power extends to every offense, and is intended to relieve the person who receives a full pardon of all punishments for all crimes he has committed or may be charged with committing. But, again, all of these comments were just dicta, not an element of the ratio decidendi, indeed, not relevant to the question the Court was answering.
The Court has never had the opportunity to determine whether or not a particular pardon by the President is constitutional. Yet, the Court generally treats actions by the President analogously to acts of Congress, and one can easily imagine how a pardon could be unconstitutional by infringing a fundamental right (e.g., by pardoning all white people convicted of murdering African Americans). Moreover, in attempt to determine the constitutionality of a governmental act, the Court routinely seeks to understand what is or was the purpose of a provision in the Constitution. To cite just a few examples from a single decision, First National Bank v. Bellotti:
As the Court said in Mills v. Alabama, 384 U. S. 214, 218 (1966), "there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs."
"[T]he purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. `. . . the liberty of the press is no greater and no less . . .' than the liberty of every citizen of the Republic." Pennekamp v. Florida, 328 U. S. 331, 364 (1946) (Frankfurter, J., concurring).
The First Amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations "have" First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether § 8 abridges expression that the First Amendment was meant to protect.
"[T]he purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. `. . . the liberty of the press is no greater and no less . . .' than the liberty of every citizen of the Republic." Pennekamp v. Florida, 328 U. S. 331, 364 (1946) (Frankfurter, J., concurring).
The First Amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations "have" First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether § 8 abridges expression that the First Amendment was meant to protect.
So my questions here are multiple and open-ended. What is the purpose of the President's pardon power? Is it to rescue a wrongly convicted person being punished for a crime? Is it to prevent the President's friends, allies or family members from being tried and/or punished for crimes regardless of their guilt?
Does the purpose include the power to pardon someone so that the person can commit a crime (e.g., theft) in the future with impunity?
Is there any reason why the Court should not entertain cases challenging the constitutionality of a pardon?
Is there any reason why the Court should not look beyond the four corners of the Constitution in order to discern the purpose of the President's power to grant pardons?
