Pardons Were the Framers’ Blind Spot

Pardons and commutations were inherited from the British system. Indeed, Commonwealth countries retain them, even if they are nowadays far less used than in the US.

In the 19th century, they were heavily used in the Commonwealth due to the existence of a mandatory death penalty for so many offences – it was quite common for the executive to commute the mandatory death penalty to imprisonment, in cases where there were mitigating circumstances. For non-violent offences such as theft, commutation of death sentences became the norm. Later, the death penalty was reduced in scope, and sentencing laws were reformed to grant more discretion to judges, and the use of this power declined a lot.

The King had the power to pardon and commute, exercised through his ministers, and in the colonies, by the colonial governors. When the Thirteen Colonies became independent of the British Empire, the state governors inherited the powers of their colonial predecessors. Given the existence of this power at the state level, it made sense to provide it at the federal level as well. Otherwise, you'd either have to give state governors power to pardon/commute federal crimes – which might weaken the federal government in relation to the states – or leave federal offences, unlike state offences, unpardonable/uncommutable (seems unjust) – or get rid of state pardons/commutations too (a step nobody was even considering)

Part of the purpose of the power of pardon and commutation is to act as a check on the judicial branch, and to provide a remedy for cases in which the mechanical application of the law by the judicial branch produces an unjust result. Traditional political theory, going back to the Middle Ages, viewed mercy – which is what pardons and commutations are – as a virtue which rulers ought to exercise in moderation. To always refuse mercy was viewed as a sign of being a bad ruler as much as to grant it excessively. The American Founding Fathers inherited that worldview and did not see any reason to challenge it.

The system isn't bad just because one politician decides to abuse it. The system is built on the assumption that political leaders will do the right thing most of the time. A single President violating that assumption is too soon to start saying the whole assumption is wrong and needs to be revisited.

I don't know where the headline comes from, it isn't accurate. The pardon power was debated at the Constitutional Convention. Some attendees argued against a pardon power because the President could use it to pardon crimes he was himself guilty of, even treason. James Madison argued that impeachment is the answer for abuses of the pardon power, and his view won out. The framers granted the power with their eyes wide open.

I doubt the Framers foresaw special councils interrogating older people without a lawyer about events months in the past, to then charge them with no crime other than conflicting with their previous statements.

I also wonder what their thoughts would be on private military contractors. However in this case, the prosecutor for those civilians was directly tied to the enemy and should rightly be thrown out.

I have always presumed the intent of pardons was to provide a check and balance against the Judicial and/or Legislative branches.

I think the only thing we're missing is a conflict of interest limitation on the pardons. In cases where the president has a conflict of interest, the power to pardon should be passed to an entity that does not have a conflict of interest. Due to general conflicts of interest at the Federal level due to potential pressure by the president, I would suggest having the governors of each state vote. I find that better than having Congress vote because there's less of a tie between state governors and the president. It's a lot harder for the president to offer each state a tit-for-tat arrangement.

No I'm pretty sure a priesthood intelligentsia caste using the media for PR was the framers' blind spot.