The Command of the Military and Naval Forces, and the Pardoning Power of the Executive
From the New York Packet
Tuesday, March 25, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

THE President of the United States is to be “commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.” The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.

“The President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers.” This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office.

He is also to be authorized to grant “reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.” Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.

PUBLIUS.

Howdy from Texas. I thank you for joining us! I have been absolutely swamped prepping pre-production for Constituting America’s RV road trip across the country!! Our winners are going to revealed throughout the next few weeks as we travel to the winners home states and film them for our documentary! Our first winner is revealed today.

He is Jacob Wood from California. He won Best Song High School. Jacob is very talented. Our judge, John Rich, chose his entry as the winner. Jacob is a talented songwriter, musician and has a wonderful voice!! Please check his out his song on our site and if all goes according to my mission, you will soon hear his song on the radio!!

Thus, with all the prep for our cross-country tour, I have been unable to keep up with our Federalist Paper’s daily read. Today, however, as I am on the plane to California, I am attempting to catch up on my reading and blogging.

Federalist Paper No. 74, by Alexander Hamilton, once again resonates the importance of being most vigilantly informed about the candidates we choose as President. Yes, we have a masterful system of checks and balances, but there are powers inherent in the office of Presidency and to those we must take note.

Knowledge is power. As I continue to read these papers. I am continually impressed by the fact that we must know our Constitution and understand the distinct powers that are given to our representatives. This is the only want that they may be kept in check and the majesty of the people protected.

The power of pardoning is one to be taken seriously. Thus, knowing the deeply rooted intentions of our President is essential, as he has the power to pardon anyone. We are so far removed from tyranny, and intrigue from foreign countries, that we grow lazy regarding the potential far-reaching and destructive powers a pardon may present.

Yes, at times, solitary wisdom may prevail over a mob of passions. Yet, power in one is always dangerous. Our Constitution goes to great lengths to prohibit powers from being invested in either one or the few.  However, in the instance of pardoning, the power is solely in the President.

History of our country has proven that this power has been treated with respect and dignity most of the time. However, there have been times when people who are most undeserving of a pardon have been pardoned. Up to now, they may have been benign in regard to how they affect our Republic but they may not always be.

We must thoroughly vet our candidates. Some day, a Presidential pardon may override the genius of the people and our Republic may be jeopardized.

God Bless,

Janine Turner
Sunday, August 15th, 2010

 

Guest Essayist: Allison Hayward, Vice President of Policy at the Center for Competitive Politics

Federalist Paper 74 appeared on March 25, 1788 – readers should recall that this is roughly 6 months after the Constitution has been sent to the states for ratification.  Only one day earlier, on March 24, Rhode Island in a popular referendum rejected the Constitution by a margin of about 10 to 1(Rhode Island eventually ratified the Constitution via convention in 1790, by a vote of 34-32).  At this point, only  six states had ratified the document.

So we can forgive Hamilton for sounding just a tad defensive in this essay.

As noted previously, Hamilton is a strong defender of executive power, so he is ready and eager to explain to readers the important principles informing his view.  He has two tasks – first, reassuring readers that the powers of the Presidency are not extreme, and the nation’s executive will not become a monarch.  Second, that to the extent the President has power to act unilaterally, it is in situations where government by committee would be intolerable.  There’s a tension between these two tasks that is evident from Hamilton’s first sentence:

“THE President of the United States is to be “commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.” The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it.”

But is the power as commander-in-chief really “so evident in itself?”  The commander-in-chief power has been invoked in recent years to justify unilateral warmaking power by the Executive.  Critics of that argument note that in fact the power to declare war belongs to Congress, and is thus not solely within the President’s ambit.

In modern times, there are many foreign entanglements that involve our armed forces but aren’t “wars.”  To be sure, the President’s ability to send American troops into combat would not mean much without a standing army — an institution the Federalists promised would not come to pass.  What powers should the President have in these limited engagements — today?  Should Congress be able to undo Presidential deployments, or condition them on Congressional approval, such as in the War Powers Act?  When the President and Congress disagree, who decides which side wins?  Do we really want the Supreme Court involved?

Hamilton also raises and defends the Presidential power of the pardon.  Hamilton argues that the pardon is necessary to temper the severity of criminal law, and the President is the best positioned individual to grant it – and be held accountable to the people for having done so.  In language that probably seems a little odd to us today, Hamilton observes that the pardon will help preserve domestic tranquility, even in cases of treason:

“On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief           Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”

Again, this is a striking passage that should remind us all of the tenuousness of the new nation, and the feeling among the founders that this experiment could quite easily go wrong.  I was reminded of this when looking over the ratification timeline in preparing this blog.  I had forgotten that as a precondition to entering the nation, Vermont had to enter into a peace treaty with New York.

To me, that sounds like a premise for a comedy, perhaps with Ben and Jerry declaring independence from the United States and commissioning a new national anthem from Phish.  But at the founding, tensions between states were no laughing matter.  The legacy of violence and mistrust was real.  In fact the first use of the pardon was for participants in the Whiskey Rebellion, for Washington perhaps sensed the need for just such a “welltimed offer of pardon” to “restore the tranquillity of the commonwealth.”

The Presidential pardon in modern times has had a mixed record. The Department of Justice typically makes clemency recommendations to the President, but the President is not bound to follow them.  President Gerald Ford’s pardon of Richard Nixon (before indictment or conviction for anything) may have spared the nation an ugly incident, but also may have cost Ford his reelection in 1976.

Critics accused President Clinton of rewarded a campaign supporter by pardoning fugitive financier Marc Rich.  Classes of individuals have been pardoned too, most notably all Confederate soldiers, and all Vietnam draft dodgers.  Hamilton correctly observed that the pardon, as an aspect of law enforcement, could mollify and temper the force of criminal law.

But it is less clear to what degree Hamilton could see – or wanted to acknowledge – the Presidential pardon as a political favor.

Monday, August 9th, 2010

Allison Hayward is the Vice President of Policy at the Center for Competitive Politics