Necessary and Enduring Power
Matthew Elias Koch
recent scandal around Bill Clinton’s pardoning Mark Rich has called
into question the President’s absolute power to pardon. The power
to pardon is one of the few the President has without interference
from Congress. It is important to understand why the founding
fathers gave it to the President, and it is equally important
to evaluate whether their reasons are still valid today.
The absolute authority of a chief executive of a nation to pardon
is a tradition that dates back to the eighteenth century when
European monarchs had the power to release prisoners at their
whim. In the colonies, the King’s power to pardon was delegated
to the governors who after the revolution retained that authority.
The weak central government that was created under the Articles
of Confederation lacked the power to grant pardons, but during
the first constitutional convention in 1787, the authority to
pardon was given to the President. This was a time of economic
chaos, and the founders reasoned that a strong executive branch
would be able to promote stability and the President’s power could
be used to quell civil disorder. Alexander Hamilton stated that
the power to pardon gave the President the power to “restore the
tranquility of the commonwealth.”
In the twentieth century there are several cases in which unpopular
pardons have been granted in order to promote national stability.
In 1974, Gerald Ford pardoned Richard Nixon for “any and all crimes”
he committed while he was President. His decision was highly controversial
and unpopular. If Nixon had not been pardoned, the effects of
a trial and possible conviction of an American President could
have been disastrous to the nation.
Jimmy Carter pardoned Vietnam War draft resistors, allowing thousands
of Americans to live their lives in peace, without the threat
of criminal charges. This pardon was necessary to overcome the
legacy of the war and to heal the nation. It could not have occurred
if Congress or a committee had to approve.
The founders chose to overlook the risk of giving sole power to
the President because they felt the benefits of necessary and
responsible pardons outweighed the repercussions of irresponsible
pardons. When Clinton pardoned Mark Rich and others, he may have
misused his power to pardon, but this does not mean that the Constitution
should be changed. The damage that unwarranted pardons may inflict
is far outweighed by the benefits that a necessary and well-timed
pardon can offer. Consider the years of trials necessary had Nixon
not been pardoned, or the suffering of draft resistors had Carter
not pardoned them. Mark Rich has long been absent from our national
consciousness, and he will surely soon be forgotten again.
a senior at York Preparatory School in Manhattan, will be attending
Dartmouth in the fall.
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