| Pardons: How Hamilton Saw It | |
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Why does Article II, Section 2 of the Constitution give the president the sole power to grant pardons, and why is impeachment excluded from pardon eligibility, but not treason? Two very good and currently, very relevant questions.
For the answers, let's turn to that ever valuable constitutional interpretation tool, the Federalist Papers.
In Federalist 74, published on March 25, 1788, Alexander Hamilton explains both the president's role as military commander-in-chief and the sole power of the president to "...grant reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT." (Emphasis added by Mr. Hamilton.)
Why
the power to pardon at all?
As long as fallible human beings decide questions of guilt and innocence,
mistakes will be made. Some who are guilty will go free, some of the innocent
will be jailed.
The laws of every country provide a process for forgiving individuals found to be victims of what Hamilton calls "unfortunate guilt."
Without such a process, argues Hamilton, "justice would wear a countenance too sanguinary (bloody, or blood thirsty) and cruel."
Why
just the president?
While the delegates to the Constitutional Convention did consider involving
Congress in the pardoning process, Alexander Hamilton spoke in favor of granting
the power solely to the president.
In Federalist 74, Hamilton argues that the sheer gravity of having the sole power to unilaterally decide "the fate of a fellow-creature," would certainly "inspire scrupulousness and caution;" on the part of the president, and that "the dread of being accused of weakness or connivance," would further guarantee that justice was well served by all pardons granted.
Hamilton also felt that the multiplicity of ideas, opinions and emotions ever present in the Congress could turn consideration of pardons into process of inflexible political debate, rather than a process of thoughtful review of judicial merit. "... as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy," writes Hamilton.
In other words, Hamilton felt certain that future presidents would be so humbled by the supreme importance of the power vested in them, and them alone, to grant pardons that they would never dare disrespect or abuse that power.
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