I beg your pardon

By | December 8, 2020

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” — U.S. Constitution, Article II, Section 2

The U.S. Constitution is a mess. By preserving slavery for prisoners it has never fully abandoned that institution. In creating a Senate originally intended to be appointed rather than elected, it preserved the vestiges of a House of Lords that gives outsized power to miniscule states. By establishing the Electoral College, we ended up with an institution that has undermined the will of the people several times in recent history.

Though the Founders were tired of a mentally-ill despotic monarch, they absolutely failed to remove imperial rule from the Presidency. It’s been a straight line from George II to Donald Trump. Checks and balances that the Constitution were supposed to provide have created instead a system of gridlock in four-year increments. The resulting inability of legislators to accomplish anything has led many Americans to question democracy itself and to start flirting with authoritarianism — all to “make the trains run on time.”

But the problem is not democracy. It is the creation that our slaveholding Founding Fathers left behind. Their rushed legacy, the American Constitution, was intended to be a charming house but is now a rotting hulk with a deed that prohibits repair.

One piece of monarchical residue in our Constitution is the presidential prerogative to grant pardons and commutations. In all-too-many cases the President has pardoned cronies who committed serious crimes. Examples include Ford’s pardon of Nixon, Clinton’s pardon of his buddy Marc Rich, Bush’s pardon of Scooter Libby, and any of Trump’s pardons of people whose crimes include: bribery, mail fraud, election tampering, treason, sedition, human rights abuses, and cold-blooded murder.

Changing the Constitution is difficult enough, and downright impossible when the country is as divided as ours is. But we desperately need a Constitutional Convention. Retiring the Electoral College, denying corporate personhood, altering or abandoning the Senate, limiting presidential pardons, expunging vestiges of slavery, returning powers to the legislature long lost to an imperial presidency, permitting snap elections to be held as in most parliamentary democracies — features like these are necessary for the survival of democracy in the United States.

Unfortunately, many Americans don’t really want democracy. Especially those who benefit the most from the system slaveholders left behind.

But if Democrats are nauseated by the spate of presidential pardons we are about to witness, the next President could easily use the power of the pardon for better purposes.

Grant amnesty to illegal immigrants and whistleblowers. Empty the prisons of people over the age of 75. Pardon the nation’s many political prisoners. Pardon Crystal Mason, who cast a provisional ballot while out on parole. Lift the federal death penalty from those sentenced to be murdered by the state. Abandon impossible-to-prosecute cases against the last detainees in Guantanamo, and find someplace to send them before shutting down that national disgrace.

Whatever moniker fits best — monarch or president — the nation’s top executive and her Department of Justice should never have the right to thumb their noses at laws established by the people. Overturning convictions should be a power for the lawmakers who originally wrote those laws, perhaps through a Congressional Pardons Commission. Or, at the very least, presidential pardons could be subject to House approval.

In the meantime, Democrats ought to exercise the power of the pardon to the max. Perhaps then both Democrats and Republicans could finally agree that such a power is simply too much of a risk in the hands of one person. Such bipartisan agreement might move us one step closer to that much-needed Constitutional Convention.