Saturday, December 6, 2008

Defending Marc Rich. Screwing Up Basic History.

Just when you think the world could not possibly get more entertaining ... Seth Lipsky has written this editorial in the New York Times defending Bill Clinton's last-minute pardon of fugitive millionaire Democratic party contributor Marc Rich. Lipsky says up front that he "came to like" Mr. Rich after meeting him "several" times. Perhaps that is why he uses words like "moved" instead of "flee," and "working" instead of "fugitive." Likewise, Lipsky credits Bill Clinton for "understanding" the pardon power, as evidenced in the editorial that Clinton composed after the Rich pardon. But Lipsky says nothing at all about the editorial's various errors and misrepresentations. Other commentators will, no doubt, blast the piece for these reasons, and others. But this is the passage that is truly unforgivable:
One of the most astonishing things about the record left by the founders is how passionately they wrestled with the pardon question. Gilbert Livingston, at the New York ratifying convention, demanded a requirement that the Congress approve a pardon for treason. George Mason, one of Virginia’s delegates to the constitutional convention, warned that a president could use the pardon to protect his own guilt. Yet, save for cases of impeachment, all calls for restrictions were rejected. It is clear that the founders understood the pardon as one of the most basic checks and balances of the constitutional system.
Lipsky should not be allowed to paint in the corner of a canvass and declare he has accomplished a gallery's worth of art. The "founders" spent very little time at all discussing the pardon power as 1) it was not present in the Articles of Confederation 2) it was not in the Virginia Plan, discussed for weeks at the constitutional convention and 3) it was not in the New Jersey Plan, presented as an alternative to the Virginia Plan.

Indeed, the pardon power was not even in the first draft of the Constitution submitted to the Committee on Detail. Instead, a single delegate on the Committee (John Rutledge of South Carolina) scribbled the pardon power into the margin of the Constitution. Rutledge's handiwork was first discussed near the end of the Convention, at the end of the day. Therefore, one of "the most astonishing things" is really how little Mr. Lipsky knows about the "record" left by the founders on the pardon power.

Were concerns expressed about the power - once it was finally noticed, and once it was discussed at the ratifying conventions? Well, of course! As employed by the King of England, the power was gross and obnoxious. And the colonies and the states took numerous steps to restrict it use by governors. Lipsky seems oblivious to this fact. Thus, the only thing that is really "clear" is that there were very few fans of the pardon power at the time of the constitutional convention and its insertion into the Constitution was a political stunt that succeeded only because 1) the convention was stacked with Federalists and 2) the ratification process was designed so that states had to accept or reject the entire document.

Sign up for a basic American Government course at your local community college Mr. Lipsky. You need to brush up on the basics before you take on something like defending the people you "like" from the long arm of the law.

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