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“I now propose that in twelve important areas of our
national life … the executive should surrender or limit their powers, the exclusive
exercise of which by the government of the day should have no place in a
modern democracy.”
These words are those of the British Prime Minister
Gordon Brown during his first address to the House of Commons last week. He
explained that he deemed the surrender of power from the executive to the
House of Commons in twelve areas a necessity in order to build a new
relationship between the British people and their government and make the
latter “a better servant of the people.” The last point on this list
consisted of only five words: “power to granting of pardons.”
I believe it is vital for the United
States to amend the Pardon Clause of the
United States Constitution by subjecting that power to a majority vote in
the people’s Congress.
The Pardon clause of the U.S. Constitution states that
the president “shall have Power to grant Reprieves and Pardons for Offenses
against the United States,
except in Cases of Impeachment.” This power was exercised by monarchs in Europe,
so it is least surprising that our Founding Fathers sought to invest this
power in the unilateral hands of one individual. Alexander Hamilton
explained the reason why the Founding Fathers gave the President this
discretionary power in the Federalist No. 74 in 1788. Hamilton explains
that “[t]he principle argument for reposing the power of pardoning … [in]
the chief Magistrate is this: in season of insurrection or rebellion, there
are often critical moments, when a well-timed offer of pardon to the
insurgents or rebels may restore tranquility of the commonwealth; and
which, if suffered to pass unimproved, it may never be possible afterwards
to recall.”
The Founding Fathers believed that there would be times
when a President can help heal a nation from the wounds of a public battle
by granting a pardon. One of the geniuses of our democracy for the past two
hundred and thirty-one years has been the ability of the American people to
reassess our constitution and make appropriate amendments to it based on
the facts in the light of the day. Each one of the twenty-seven amendments
to our constitution has made our country a better place because it has
contributed to keeping the Constitution alive and its principles timely and
evolving with the needs of our ever-changing society.
One of the things we have learned throughout this many
years is that although our Founding Fathers sought the power to pardon to
be used rarely and only in cases that have jeopardized the tranquility of
our country, most of our presidents have used the clause not for the good
of the nation but out of loyalty to those who share their political
ideologies or for the benefit of their own wellbeing and legacies. While
this has been occurring, the courts have taken a deferential role and kept
check of this power to a minimum. I believe President Ford did not have the
constitutional power to pardon Nixon because it was “a case of
impeachment,” a sole exception to this power as stated in the clause. In
other cases, Presidents have pardoned individuals not because the tranquility
of the nation was at stake, but because their own legacy and freedom were.
George H. W. Bush granted pardons to six executive branch officials,
including former Secretary of Defense Caspar Weinberger, who were facing
criminal charges for illegal dealings with Iran, which occurred while
George H. W. Bush was the Vice-President of the United States. Republicans
have not held a monopoly on unrestricted grant of pardons. President
Clinton’s eleventh hour pardons of 140 individuals, including the fugitive
financier, Marc Rich, and Former Housing Secretary, Henry Cisneros, were
equally disconcerting.
And then, there is the case of Scooter Libby. It can
hardly be argued that the tranquility of the nation was at stake ten days
ago when Scooter Libby was set to serve his thirty-month sentence in prison
after he was found guilty of perjury and obstruction of justice. At the
time, the only Scooter-related discussions on major news channels were
speculations as to whether President Bush would pardon him. He could have
put the case to rest once and for all by ruling out pardon or commutation.
But instead, he chose to commute Mr. Libby’s sentence because he deemed it
“too harsh.”
Let’s review this in perspective. This is a president
whose approval ratings cannot get any lower because of countless failures
in foreign and domestic policies that have stemmed from his absolute
incompetence and that of his administration. But most relevantly, this has
been an administration that considers itself above the law. They have stripped
detainees in Guantanamo Bay of their right to challenge their detentions
without a charge, broken the Federal Intelligence Surveillance Act by
wiretapping millions of American citizens without getting the necessary
permissions from the speedy and secret FISA courts, established secret
prisons in Uzbekistan and justified torture of prisoners. Nonetheless, our
Constitution still allows this president – who has nothing to lose, his
legacy to save and possible criminal charges to avoid – to grant a unilateral
pardon to someone who may have played a key role in this administration’s
commitment of treason by blowing the cover of Valerie Plame, a CIA
operative.
It is true that it may be more speedy and convenient for
the President to pardon without the people’s consent. But in light of the
abuse of this clause over the past century, if the pardons are for the sake
of the nation’s harmony, shall the people’s representatives in Congress not
approve the pardon with a simple majority vote? Would it not be fair to ask
the representatives if the people choose tranquility or justice in each
case? My belief in the fact that the pardon clause is an elitist and
monarchical power that has often been used to place certain individuals
above the law, and that it has often contributed to establishing two
classes of law for two classes of citizens, lead me to answer “yes” to both
questions.
Discuss this in Sam’s Blog. Link
to the article on The Huffington Post.
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