At the end of every President’s term of office we’ve come to expect a flurry of pardons and reprieves to be granted. Some of these dispensations arouse public outrage, some praise, while most receive unnoticed acquiescence. The President’s unlimited power to grant pardons and reprieves (except in cases of impeachment) stimulated a limited though forceful debate during the year-long struggle to ratify the Constitution.
The king of England and colonial American governors could grant pardons and reprieves. According to Sir William Blackstone’s Commentaries on the Law (1765-1769), pardons were intended to assure justice in cases where the courts (judges and/or juries) rendered decisions that resulted in the miscarriage of justice. All of the revolutionary-era state constitutions gave governors such power although sometimes coupled with legislative or council approval or prohibited in cases of impeachment and treason.
In the Constitutional Convention Alexander Hamilton of New York wanted to require Senate approval of pardons in cases of treason, while George Mason of Virginia strongly opposed the President’s “power of pardoning because he may frequently pardon crimes which were advised by himself. It may happen, at some future day that he will establish a monarchy, and destroy the republic.” Mason rhetorically asked, “If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?” Virginia Governor Edmund Randolph wanted to prohibit pardons in cases of treason. Randolph’s proposal on the last day of debate in the Convention was defeated eight states to two with another state divided.
Antifederalists argued that the Constitution’s “absolute” and “unrestrained” pardoning power should be “more cautiously lodged, and under some limitations,” especially in cases of treason in which the President might be personally involved. (“Federal Farmer,” Additional Letters, CC: 723, p. 370.) To ameliorate this situation, it was argued that either the Senate or an independent privy council be required to approve any presidential pardon or reprieve. Furthermore, some Antifederalists argued that pardons not be given prior to a trial and conviction. No one objected to the presidential pardon being limited to only federal crimes and being prohibited in cases of impeachment.
The pardon power of the President is based on Article Two of the United States Constitution (Section 2, Clause 1), which provides: The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.
Federalists strongly defended the pardoning provision suggesting that every country throughout history provided such an authority. Roger Sherman, writing as “A Citizen of New Haven,” argued that such power “cant be productive of much mischief.” Guilty parties might divulge important evidence to convict ringleaders if they were confident that a pardon might shield themselves from prosecution or punishment. This is the modern-day immunity provision. On a larger scale, wars or domestic insurrection might be ended more expeditiously if pardons would be offered at opportune times to participants in exchange for their surrender. From a humanitarian perspective, someone unjustly convicted, someone sentenced too harshly, or someone who had truly repented from previous crimes should be pardoned. In all of these worthwhile cases, obtaining pardons from one individual (i.e., the President) would be easier to obtain than from a legislative body.
James Madison argued that Congress’ power to impeach the President would avert unworthy pardons. The President’s desire to be re-elected would also forestall unpopular pardons that would unduly anger the people. Madison’s reliance on impeachment and reelection as restraints failed to anticipate the granting of pardons at the very end of the President’s term when impeachment was impossible or when re-election was either prohibited or not sought. Several state ratifying conventions proposed amendments to the Constitution that would have limited the pardoning power in cases of treason, but none were submitted to the state legislatures for consideration.