The State, That's Me!

The presidential pardon is a vestige of monarchy.

A few years ago a contributor to The Nation referred to Bush as George II. I wrote in to correct him; that's not how the Brits and other nations number their monarchs. If we follow their example, our George I was George Washington. Then come the two Bushes, making the current inhabitant of the White House our own George III.

Of course, the name George III has, or should have, a special negative resonance in the United States. But that George III was a constitutional monarch, constrained in his actions. We have to go back to the 1600s to find a royal counterpart to George W. Bush.

In 17th-century England, conservative royalists and the Stuart kings, James I and Charles I, insisted upon absolute monarchy and rulership by divine right. Essential to the concept of absolutism was the notion of arbitrary rule. From the Latin root arbiter, the word originally meant "deciding according to one's own discretion," but came to mean "whimsical" and even "despotic."

Monarchs could raise armies and the taxes to pay for them, foist their troops upon the citizenry, and declare expensive and unnecessary wars. The absolute monarch did not have to explain himself to his subjects. He was "the Decider," and if you disagreed with him, you could fritter away the rest of your life in the Tower of London or even lose your head.

Not only was the king was the source of all laws, but he was also, according to this belief system, above the law. The people could not hold sovereigns accountable for their bad behavior, poor judgment, or foolish actions. Arbitrary or absolutist rule meant that James and Charles could ignore the wishes of Parliament and the English people. Both James and his son followed the bad advice of the Duke of Buckingham, who urged, among other things, an expensive war on France.

The liberal alternative to absolute and arbitrary rule was the rule of law -- including due process, issuance of a warrant, habeas corpus, presentation of evidence, and trial by a jury of one's peers.

During Henry VIII' s reign, Parliament granted the monarch the ability to pardon. Rulers could act according to the dictates of their own hearts. Against the advice of her counselors, Henry's daughter, Elizabeth I, pardoned her suitor, Sir Robert Dudley, despite his treasonable behavior.

Writing before the American Revolution, William Blackstone doubted that a democracy could successfully exercise the power of the pardon. The constitutional monarch, unlike the leader of a democracy, existed in a realm beyond party politics. If such a leader could pardon, the common people would be unable to tell "whether a prisoner were discharged by his innocence, or obtained a pardon through favor."

A pardon through favor. Blackstone's words have a particular resonance as everyone wonders whether George W. Bush, who has already commuted Scooter Libby's sentence, will proceed to issue him a full pardon.

President Bush, who claims to favor a strict construction of the Constitution, should therefore consider what the Founders intended when they conferred upon the president the power to pardon. Alexander Hamilton explained their reasoning in The Federalist #74:

"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."

Hamilton and his colleagues surely never imagined the presidential pardon being used to rescue a high official in distress-a lawyer who had lied under oath and obstructed the course of an investigation. More likely, he and the other signers of the Constitution envisioned the presidential pardon being used on behalf of some desperate Jean Valjean.

The president would surely appreciate the gravity of his power to pardon, Hamilton wrote in #74, because:

"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, although of a different kind. "

The Constitutional Convention vested the authority to pardon in a single person. A group of people, Hamilton explained, "might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency."

The language Hamilton used in #74 is all too relevant to our current scandal. It would certainly be "injudicious," even unscrupulous, of Bush to grant Libby a presidential pardon. The very thought of doing so should inspire in him the dread of being accused of "weakness" or "connivance."

Because the Convention had decided that the presidential pardon should not be "fettered," Hamilton does not give many specific examples of its use. He does, however, give one, and it is not at all applicable to a case like Scooter Libby's. A few sentences after a reference to Shays's Rebellion, Hamilton writes:

"The principal argument for reposing the power of pardoning in this case [sedition] is this: in seasons of insurrection or rebellion, there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth. "

Presidents George Washington and John Adams used their power to pardon in exactly such circumstances-Washington after the Whisky Rebellion and Adams after the Fries Rebellion.

As Governor of Texas, George W. Bush showed no mercy to prisoners on death row, not even when vigorously lobbied to do so by his supporters. As President of the United States, he has been stingy with pardons.

If he does give Libby a full pardon, he will not be extending mercy to the unfortunate, as the Founders intended. Instead he will be demonstrating yet again his belief that he and his courtiers--"my government," as he recently called his administration--are not subject to the law, but above it.

Like another absolute monarch, his motto seems to be, "the state, that's me!"

Carol V. Hamilton, Ph.D.
Center for the Arts in Society
Carnegie Mellon University
Pittsburgh, PA