One of the places where presidential power could be curbed is the pardon. America has an entire branch of government devoted to ascertaining guilt and innocence, and the determinations of such are the result of the collective wisdom of judges and juries. To have those decisions and the entire judicial process nullified by any one person is too much, especially if that person is not above using power for purely political purposes, or whose judgment has been shown by recent events to be sorely under par.
Even before Obama, the power of the pardon was abused, as in the case of the FALN terrorists pardoned by Clinton. The only iteration of the word“pardon” in the entirety of the Constitution is in Article II, Section 2, Paragraph 1: “The President […] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
In Federalist No. 74, “The Command of the Military and Naval Forces, and the Pardoning Power of the Executive,” Alexander Hamilton presents the original reasoning behind vesting this power solely in the president.And, well, if we have ever seen a less thoughtful discussion of the topic ... at present ... we cannot remember when!
It is, of course, supremely ironic that a piece on "Constitutional Government" would ignore some of the strongest, most prominent features of constitutional government: separation of powers and checks and balances. The pursuit of justice is a three-branch enterprise, quite contrary to Mr. Hall's personal predilection for judicial monarchy. The legislative branch writes criminal laws. The judicial branch interprets / applies them. And, on the theory that those branches are less than perfect (something Mr. Hall may contest), the executive branch has the pardon power. This is not complex stuff. Someone had to have taught it to Mr. Hall, somewhere along the way.
The collective wisdom of judges and juries you say? Hmm ... Dred Scott, Buck v. Bell, Bradwell v. State of Illinois, the Civil Rights Cases (1883), Plessy v. Ferguson, Korematsu v. U.S., Texas v. Johnson, Kelo v. City of New London ... very impressive stuff! Judicial monarchy? No thanks.
We wonder also: if an infinitely wise judge and flawlessly objective jury happen to sentence an individual to 18 months in prison (on the basis, of course, of perfect information, in an entirely flawless process) and that person serves their time and goes on to become a law-abiding, productive citizen for 30 years ... how does a presidential pardon "nullify" the judicial process?
Mr. Hall is concerned that determinations of judges and juries about innocence are being "nullified" by presidential pardons. Does he have any idea that the last time a presidential pardon was granted on the ground of innocence, the Beatles had not yet landed in America? Just how ignorant is Mr. Hall? How exactly does a guy like this get space to write with the American Thinker?
Hall asserts the pardon power has been abused. We not only wonder what power has not been abused -at some time, by someone - but we find ourselves somewhat underwhelmed by his supporting evidence: one case, the FALN terrorists - who, incidentally, were not pardoned, as Hall asserts. Basing one's case on the faulty understanding of a single act of clemency is less than impressive. Can you say "burning down the house to roast the pig?"
How very stupid it is of Mr. Hall to reference Alexander Hamilton, without also noting that Hamilton believed there is a natural tendency for criminal codes (you know the things applied by judges and juries) to become overly severe. Therefore, in his view, there should be "easy access" to mercy. Mr. Hall, apparently, wants less / more difficult access. The Founders of our constitutional government had a very different view. We tend to agree with them, not Mr. Hall.
Mr. Obama appears to be set to do some truly amazing, long-overdue things with the pardon power. If his critics are of the same caliber as Jon Hall, the President is well on his way to fame, glory and the love of his Country. See full editorial here.