Pardon me, but didn’t the Constitutional Authors make a mistake?

Pardon me, but didn’t the Constitutional Authors make a mistake?

When a President issues a pardon that attracts wide attention, commentators line up in one or two queues. They speak of it either in, a) legal terms, usually criticizing it as interference in justice, or commending it as correcting an injustice, or, b) in political terms, calling it a partisan favor for a crony, or an incentive to keep someone quiet.

I have noticed a third alternative crop up recently as resignation or acquiesence--the President’s power to pardon is in the Constitution. All Presidents grant pardons, the line runs, almost ritualistically. The power comes with the office, as an administrative option.

Now as a corollary to this last gloss, one might note that, as Jesus offered a reprieve to one of the criminals at Calvary, the President can exercise a similar privilege. In human hands it looks like a whim, and Presidents misuse the power at times, but at least the opportunity to forgive is available at the highest civil level.

But none of these angles goes to the heart of the question. Whether one takes an academic approach, displays cynicism, or resignation, or shrugs pardons off as a spiritual anomaly in the political arena, the power for one man arbitrarily to pardon seems out of place in a document setting forth the structure for a civil administration.

What were the writers of our Constitution thinking anyway? Doesn’t the power thus granted make the President unaccountable? No restrictions or limits were placed on the President. He needs answer to no one for his pardoning decisions. Maybe the Founders were just trying to cover all the bases. They couldn’t graft pardons onto the judicial system, for a high court officer dispensing pardons is conflicting, and would subvert the judicial process. Pardons are extra-legal. They have to come from outside, from the top administrative official.

But didn’t the Writers know this made the President unaccountable? They seemed so prescient in other matters. In the context of our colonial Rebellion, our revolutionary leaders removed a tyrannous king. Then their task at Philadelphia in 1787 was to sit down and write a document that assured power to the people. Did they not see that the power to pardon removes the President from scrutiny? Their insertion of an extra-legal, untouchable power in the hands of the Chief Executive was either an egregious mistake or calls for a deeper explanation than usually is offered.

I offer here such an explanation. My thought is that our forefathers knew what they were doing. They understood a pardon to be a spiritual matter. So an act of pardon that qualifies, and is not miss-granted, must meet a moral standard. All pardonees are nefarious characters, unless they were wrongly convicted. So to grant a pardon for any reason other than as an act of mercy and forgiveness is immoral. If an unspiritual person grants a pardon, those who are savvy will question the pardoner’s motive. Our Revolutionary Generation certainly would not have included the pardon in their new document without this understanding, or they would be guilty of cynicism and betrayal of all they had sacrificed. But they saw spirituality and democracy as corresponding systems.

Without this understanding, the pardoning power is an anachronism in their radical democratic movement. But in the spirit of the Old Testament prophets, who boldly questioned God without impugning God‘s integrity, our Founders integrated the pardoning power into a democratic governing structure. The integrity of a pardoning President will stand inspection if he is rightly motivated. And the body of the Constitution invites, and testifies to, a democracy’s inbred urge to inspect these things.

Some would explain away the anomaly of unaccountability imbedded in a democratic frame by shrugging the practice off as an insignificant ritual. Yes, it appears that a custom has developed if recent Administrations are considered (the history of pardons would make an interesting study), but I can’t believe that those who risked their lives to throw out tyranny would so lightly countenance unaccountability in a President. The President can’t be impeached for granting a pardon but he can be pilloried, in the red-blooded spirit of democracy. The President is not God.

The Founding Fathers have been praised for displaying a certain genius in crafting our political guidebook. But their inclusion of this sensitive, potentially exploitable landmine in the Constitution was not a mistake. It is a clue to the sophistication of their minds. They did not fear sanctioning this potent, easily corruptible, yet spiritual tool, because in combination with a vocal, energetic, questioning citizenry, the mix becomes serendipitous.

In America the people rule. That is why it is important for the citizenry to be, as the Fathers frequently put it, “virtuous.” If the President acts pseudo-pardoniously, according to our tradition a whistle should sound. To pardon and to question pardoning motives, each is quintessentially American. It honors the profundity of the Constitution and the intentionality of the Philadelphia Convention where unusually politically astute and morally virtuous individuals congregated.

But it is up to our generation, when the Constitution seems threatened by tendencies toward unaccountability in high office, to operate the Constitutional machinery handed us with an appreciation for its complex simplicity. It is unpopular today to honor this odd mix of morality and politics, but to think that the Constitution says Presidents “can just do it,” unquestioned, is an abnegation of our heritage. The Constitutional writers were not so naïve.