Take a position on whether or not the use of pardons has caused the power of the presidency to expand beyond the framers’ intent.

Question

The use of pardons by the president is an example of a formal power of the presidency.

Take a position on whether or not the use of pardons has caused the power of the presidency to expand beyond the framers’ intent.

Use at least one piece of evidence from one of the following foundational documents:

1. Brutus I
2. The Declaration of Independence
3. The Federalist 51

In your response you should do the following:

✓ Respond to the prompt with a defensible claim or thesis that establishes a line of reasoning.

✓ Support your claim with at least TWO pieces of specific and relevant evidence.

     • One piece of evidence must come from one of the foundational documents listed above.

     • A second piece of evidence can come from any other foundational document not used as your

     first piece of evidence, or it may come from your knowledge of course concepts.

✓ Use reasoning to explain why your evidence supports your claim or thesis.

Answer 1

None of the documents that the question asks you to refer to mention the pardon power specifically. Both Brutus (anti-Federalist New Yorker Robert Yates) and Publius (James Madison, in the case of Federalist 51) address the question of separation of powers in the Constitution. Madison addresses this question much more directly in Federalist 51, while Yates refers tangentially to the separation of powers while arguing primarily that the Constitution grants too much power to the federal government in general. The Declaration of Independence also criticizes the excessive power of the British government over the colonies. Federalist 74, written by Hamilton, addresses the pardon power specifically, and I would draw the second piece of evidence from there. The other piece of evidence that you draw from the listed documents could be from either Brutus or the Declaration and would constitute one of the general critiques of over-strong central government.

The general critiques of governmental authority found in Brutus and the Declaration do not specifically address the power of pardon. George Mason, another anti-Federalist, argued against granting the power of pardon to the president alone, arguing that he might use it to protect himself in case he committed a crime. Madison responded that Congress could use its power of impeachment to suspend the president's execution of his duties and thus deny him the power to pardon himself or co-conspirators. The Constitutional Convention accepted Madison's reasoning. The King of Great Britain, and state governors under the state constitutions passed before 1787, both had the power of pardon. I would argue that the framers of the Constitution intended that the president's power of pardon should only be checked by impeachment and conviction.

The flaw in their reasoning lies in the growth of political parties. The conflict that the framers anticipated was between branches of government. Thanks to their memories of Britain's civil wars in the 17th centuries, they expected Congress to have a common identity and be generally opposed to the power of the executive. It didn't occur to them that a president who tried and failed to overturn an election would have a bloc of loyal senators willing to overlook his crimes and prevent his conviction in an impeachment trial. Additionally, Madison believed that impeachment alone (before conviction by the Senate) would at least cause the president to be suspended from their duties so that they couldn't use the power of pardon to immunize potential witnesses or protect themselves against punishment after they were removed from office. This has not happened in any of the four presidential impeachments in American history.

So in conclusion, the check that the framers anticipated would prevent corrupt use of the power of pardon by the president, impeachment and possible suspension from office, doesn't function as they expected it would. Therefore, the president's power of pardon is effectively unchecked and thus does not function as the framers thought it would.