Monday, April 21, 2014

McCarthy on Mercy, Lawlessness, Usurpation, Etc.

Over at PJ Media, Andrew McCarthy is warning us about "presidential lawlessness disguised as pardon power." Wow. Sounds that sounds serious!

More specifically, McCarthy is reacting to the fact that Attorney General Eric Holder has announced that lawyers "will be reassigned to the Justice Department’s pardon office in anticipation of a surge of applications from drug offenders for reductions in their sentences — applications the Obama administration has signaled it would look upon favorably. " Says McCarthy, this exercise is "another transparent usurpation of legislative power by the president."

Jefferson "Lawlessness" Type
True enough, it very much reminds one of  Thomas Jefferson's vile campaign promise pardon those convicted under the ever so popular (and certainly wise) Alien Sedition Acts - you know, the ones that allowed the Adams administration to imprison anyone who dared to criticize the government, or made government officials look bad. These laws passed by Congress, I tell you! CONGRESS ! Who did Jefferson think he was, usurping legislative power by looking favorably upon such criminal trash?

Says McCarthy, "The pardon power exists so that the president can act in individual cases to correct excesses and injustices" ... to which we say, Says who? Can he quote a single Founding Father who said such a thing? Even one? Hamilton argues one reason to have the pardon power was to quell rebellions. It could be a devise used to bring rebels back into the fold. Hamilton must not have had McCarthy's e-mail address, or read McCarthy's legendary Rules for - and the Only Two Purposes of - Pardons (forthcoming?)

And, by the way, what are we to think when judges complain that mandatory minimum sentences are an exercise in "excesses?" Ignore them, and go with McCarthy? If judges think they result in excessive punishments and the Obama administration believes the result has been "injustices" ... then why isn't McCarthy in the corner, applauding, or at least nodding in approval?

Washington "Legislative Usurper"
Ah, but McCarthy explains / has the answer: "if the law is to be changed, our system requires that it be changed by passing laws in Congress" ... again, referencing zero Founding Fathers in the process. One supposes that George Washington and John Adams were way out of bounds pardoning the Whiskey Rebels and participants in Shays' Rebellion.

Maybe they should have had some hangings first and then some good old congressional debate on the matter.

It is amazing how much faith McCarthy places in the institution Americans typically have the least amount of faith in (Congress). It is amazing that self-proclaimed conservatives can be so suspicious of government, so sure that government inevitably screws up everything it touches, and yet - quite selectively - ascribe nothing less than absolute perfection to the legislative and judicial processes. American Government 101 kids: the pardon power is part of our system of of checks and balances and separation of powers. It is based on the assumption that the legislative and judicial branches are not perfect. Who on earth, at this late date, could possibly disagree?

The pardon power was not given to presidents so that they may not use it. They were not invited to participate in the legislative and judicial pursuit of justice so that they may pretend the invitation does not exist. Philosophers more articulate than McCarthy have long noted that, in the so-called strict sense, every exercise of clemency (presidential pardon) is "lawless." And some have even followed that position to its logical conclusion: there should be no pardon power.

Thankfully - in large part because of Christianity and our sorry experience with common law in England - this country has never adopted such a position. Alexander Hamilton argued there should be "easy access" to mercy in the United States. If McCarthy desires such an approach to law, he should move elsewhere. We recommend China. See McCarthy crack up here. See our prognostications on this topic generally, from a March 15th post, here.

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