4th of July: The Federalist Papers, the Anti-Federalist Papers, and the Presidential Pardon

Well, it’s the forth of July, and Sandy Levinson delivers over at Balkinization (OK, he wrote it yesterday).  The discussion is about the Presidential Pardon and whether the Anti-Federalists’ objections to it are 1) Valid, and 2) relavant to the current Scooter Libbey case.

George Mason, a distinguished Virginian who refused to sign the Constitution because of its lack of a bill of rights, noted that “the President of the United States has the unrestrained Power of granting Pardon 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.” Luther Martin, a somewhat less distinguished but extremely interesting non-signatory from Maryland (who also raised questions about the collaboration with slavery), also objected to the potential “attempt [of the President] 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 ambition, the associates and abettors of his treasonable practices, by granting them pardons should they be defeated in their attempts to subvert the constitution.”

I, like Levinson, don’t think that we should get rid of the pardon.  As he says, “I really don’t advocate doing away with the pardoning power, because it is important to retain the ability to temper justice with mercy.”  No system is perfect.  And with all good things, come unintended consequences.  The Scooter case by be one of those. 

But, I don’t want to live in a world where Mercy is constitutionally forbidden.

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