Golden Nuggets from U. S. History

The Blue Quill Series
Concord Learning Systems


ADVICE AND CONSENT -- PRESIDENTIAL PARDONS

The Founding Fathers did not foresee the invention of missiles, airplanes, TV, telephones, computers, cloning, microbiology, or many other modern technologies. Yet their foresight was remarkable -- ingenious in fact -- in designing a balanced republican government that has endured.

Consider what the framers of the Constitution expected: Common defense; equality in domestic and foreign commerce; equal justice; equal rights; freedom to pursue life, liberty, and happiness; domestic tranquility. What did they fear most? Loss of state and local sovereignty; loss of freedoms; unequal justice; civil unrest; war.

Did they achieve their goals? The report is still out. State sovereignty suffered a serious blow in 1913 when the states, consumed by the "passions of the moment," foolishly ratified Amendments XVI and XVII. Amendment XVI permitted a federal income tax, and for the first time in history, allowed the federal government to intrude into the personal lives of individual citizens. Amendment XVII changed the system from appointment of Senators by state legislatures, to direct election by the people, thereby eliminating senatorial fidelity and allegiance to state sovereignty. Now we vote for three representatives (a Representative AND two Senators) instead of one, but the STATE, per se, has no representation in the U.S. Congress.

The consequential loss of STATE representation is profound. Original intent was that Senators would wear two hats: A second legislative body, and a "check and balance" between the federal government and STATE government. Today, due to direct elections, Senators are just like Representatives except they serve six year terms instead of two years and are therefore virtually unaccountable due to the long delay between elections. Direct election of Senators eliminated the only "check and balance" between federal and STATE responsibility. Senators are aware that they can ignore their constituency and STATE for four years, as long as they devote the last two years to remaking their public image for the next election.

The loss of STATE sovereignty is very apparent during the "advice and consent" activity of the Senate. It seems that Senators view themselves as "assistant Presidents" without immediate accountability -- but most interested in long-term perceptions of special interest groups. Little attention is paid to STATE, national, and constitutional interest.

How did the founders view "advice and consent?" Alexander Hamilton, who attended the Constitutional Convention, explained it:

Federalist Paper No. 66 (excerpt)
"It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. ..."

Hamilton had it exactly right but most Senators during George H.W. Bush's Presidency failed to read up on history. President Bush (the 1st) nominated Judge Robert Bork to the U.S. Supreme Court and liberal Democrats, playing to their political base, went right after him. They virtually destroyed Judge Bork's excellent reputation. Those who form opinions based on media hyperbole (most Americans) now consider Bork a judicial pariah. President Bush then handed over the name of Judge Clarence Thomas, a black American, and they were trapped. Judge Thomas and Bork have identical ideologies but Ted Kennedy, Joe Biden, and other liberal Democrats, were stuck... They had to confirm Thomas because of his race: The very group they tried so hard to impress with their demagoguery of Bork. AND, because Senators are elected directly by popular vote, other Senators had to along. In other words, the Senate was not performing an "advice and consent" function... It was playing to the "passions of the moment;" the very thing a republican form of government is expected to avoid.

Senators now deviate from original intent, but not just on the question of advice and consent. They also stray off course on many other issues, including interjection of political hoopla into any subject imaginable... Like wasting time investigating the Presidential pardon of outlaw Marc Rich. Where were the good Senators when Clinton pardoned 13 members of the Puerto Rican terrorist organization, FALN, to motivate the Puerto Rican vote in New York for his wife's Senate campaign? The pardon for FALN was far more egregious than the Rich pardon because the terrorist had actually planted bombs and killed people.

Let's see what the Constitution says about pardons, advice and consent, and filling vacant offices.

Article II. Section. 2.
"The President shall 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; he 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 offices, and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.

"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

"The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."

Notice the words, "... except in cases of impeachment." With this clause, the founders withheld authority of the President to pardon himself or others against impeachment. However, the clause makes it clear that he may grant pardons for all other offenses. The wording does not define a procedure, so all of the recent nonsense about Clinton bypassing the DOJ is just that... utter nonsense.

The last paragraph from Section 2 above grants an authority which Bill Clinton used like no other President before. Clinton submitted names of totally unacceptable candidates, the Senate (knuckling to the "passions of the moment") would refuse to confirm by inaction, and Clinton would wait for a Senate recess to appoint the candidate on an interim basis. This allowed the interim appointee to remain in office for about one year, at which time Clinton would repeat the process. He stacked the Department of Justice's Civil Rights Division using this technique, thereby circumventing the Senate confirmation process. Clinton even used the technique, for the first time in history, to appoint interim Federal Judges.

BUT, check the wording above. It stipulates that the President "... shall have power to fill up all vacancies that may happen DURING the recess of the Senate, ..." Clearly the provision was designed for vacancies that may happen DURING the recess. Not for vacancies that happened BEFORE the recess. Why didn't the Senate challenge Clinton's actions? Because Clinton used the ruse with minority appointees only. If he had made interim appointments of white male moderates, the Senate's reaction would have been entirely different. Remember, they were thinking of public passion ... Not what is best for the country. If Senators were still appointed by STATE legislatures, they would NOT have sat silently by and allowed such a convoluted process to occur. AND, states would not be operating under a multitude of civil rights "consent decrees" administered by the U.S. DOJ which completely turns STATE sovereignty on its ear.

There was never any doubt in the minds of the founders that occasionally an unscrupulous politician, even a President, would attain office. The framers expected Senators, appointed by the state legislatures, to rise up and throw the scoundrel(s) out (convict on impeachment). This concept completely failed during the Clinton Administration because Senators were not appointed, they were elected by the people, and therefore had to re-act to the "passions of the moment" by retaining the bum. An elementary reading of original intent makes it clear that Senators could reject a Presidential nominee because they didn't like the way the nominee parted his/her hair. The same intent exist for impeachment, contrary to all the noise made by unscrupulous lawyers and political operatives. It would not be inconsistent with original intent for congress to impeach a maverick federal judge, who serves "on good behavior," for failure to make rulings that suit the whims of congress. It also would not be inconsistent to impeach a President who lies to congress, the American people, and to federal grand juries.

Now there is deep consternation because the same conniving, egotistical, self-centered rascal traded a pardon for financial contributions to the Democratic National Committee and his Presidential library. Confused Senators are running about talking foolishly about modifying the Constitution to override Presidential pardons. The correct remedy is to repeal Amendments XVI and XVII. Re-set the system so that Senators can function as SENATORS and not long-term Representatives. If the public insist on participation in selecting Senators, set up systems within each state similar to the Electoral College but with final say-so left to state legislatures. Make the Senators directly accountable to the STATE, not the public. The public has their say by electing legislators.

Get the Federal Government out of the daily lives of citizens by eliminating the federal income tax. Restore the principal of accountability of local and state officials to collect taxes and remit the money to the federal government.

Here's what else Hamilton had to say about pardons.

Federalist No. 74 -- Alexander Hamilton
"...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 [President] 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 [Shays's Rebellion, 1787]. 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 well-timed 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."

We strongly suggest leaving the absolute pardon option unfettered in the hands of the President.

Philosophos Historia


1999-2001 Concord Learning Systems, Concord, NC. All rights reserved.