In the realm of law relating to the sale of goods and services and the rights of the customer, there is a concept of those goods and services being "fit for purpose". That is that a good or service should be considered fit for purpose if it fulfills the specific purpose for which it was intended, or else be reasonably fit for any purpose specified by a reasonable customer. If you buy a good or service with some particular function in mind, then it should be capable of performing that function adequately.
A wise man once said that "Laws exist for the regulation, standardisation and protection of society"¹ and I think that that maxim is a good principle. I also think that in this web of legal kerplunk that another of the many planks that can be precariously wedged into this shoddily built house of maxims, is that the law itself should also be fit for purpose. Does the law do what we expect it to do? If not, could the law be made better? Is the law itself bad law?
As someone who rejects any and all notion of originalism or intent, because the people who live today are the ones who live with the laws that they must submit to, then I think that laws can and do outlive their fitness for purpose and should be repealed, be allowed to expire, or at very least questioned for their fitness of purpose. I find it utterly insane for instance, that the Second Amendment to the US Constitution is allowed to continue and I will go on record as saying that everyone who supports it is either mad, bad, delusional or ignorant.
Likewise, in the discussion relating to Former President Donald Trump and his involvement in the January 6th insurrection and riot at the Capitol Building in 2021, candidate Nikki Haley, Former Governor of South Carolina, has stated that she would only pardon Trump if he was convicted of a crime.
The nearest that we have gotten to anything like this in the past, was when President Gerald Ford preemptively pardoned Richard Nixon, even though Nixon hadn't actually been charged with anything following the Watergate scandal. Nixon wasn't even impeached because he resigned before that political process could be brought to completion. As it currently stands, we have no idea if Trump is going to be convicted of anything, or even if it will go to court.
The big difference between Nixon and Trump is a moral one. It has to be said that Nixon absolutely accepted responsibility for what he and his administration had done; and a Presidential pardon in that case was more about trying to make the United States move on and ignore what had just happened in the two years previous. Trump on the other hand, really does not accept any responsibility for what he has done and would likely never acknowledge his wrong doing even if convicted.
More generally though, I wonder if the power to grant reprieves and pardons, should even be held in the hands of a President. Remember, the Presidency is a political position as opposed to a judicial position; the power to grant reprieves and pardons is in my not very well paid opinion, ostensibly a judicial power.
The relevant text of the US Constitution is thus:
https://www.law.cornell.edu/constitution/articleii
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 offenses against the United States, except in cases of impeachment.
- Article II, Section 2, US Constitution (1789)
The US Constitution does give the power to grant reprieves and pardons for offenses to the President. The question here is should it? Should the President, which is a political position be given what is ostensibly a judicial power?
The defence of this power was given by Hamilton in Federalist No.74; which is one of 85 essays by Alexander Hamilton, James Madison, and John Jay, defending the new United States Constitution; with the hope that The People would read them and urge their representatives at the Constitution Conventions to ratify the new Constitution of the United States.
https://avalon.law.yale.edu/18th_century/fed74.asp
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.
- Federalist Papers No. 74, Alexander Hamilton, 25th Mar 1788.
Hamilton's defence of why the power to grant reprieves and pardons rests in his unsaid belief that the Office of The President, should be above the rough and tumble of mere politics. The Office of The President in Hamilton's eyes should be a noble position; which if not actually being the King, should be king-like in its demure and scope.
This idea that someone should be above mere politics, is of itself a noble ideal. In fact where I live, the Royal Prerogative of Mercy² is a concept which continues in State law, and Federal law. It also exists in the United Kingdom; which is the place from which these notions of a prerogative of mercy and clemency arise. Remember, Hamilton is writing at a time when the several United States while not yet having invented their own form of government, have inherited that great body of common law which I find myself also inheriting.
In New South Wales:
The Royal prerogative of mercy is a broad discretionary power exercisable by the Governor acting on the advice of the Executive Council and the Attorney General. The purpose of the power is to temper the rigidity of the law by dispensing clemency in appropriate circumstances.
Strictly speaking there are no legal restrictions on the exercise of the power. The power is only exercised in rare and exceptional circumstances, where it is necessary in the public interest. The exercise of the Royal prerogative of mercy is not a general avenue of appeal. Nor is it equivalent to an acquittal. Rather, the exercise of the power merely has the effect of relieving the effects of a conviction without displacing the conviction itself.
- Royal Prerogative of Mercy: fact sheet, NSW Dept of Communities and Justice, as at 6th Jan 2024.
There should be something of note here which Hamilton very obviously didn't foresee, nor care to bother to foresee. That is that the various Governors and President of the several and Federal United States, are not congruous to the various Governors, Governor-General, or even the King. Unlike those positions which exist in the Westminster system of government, the various Governors and President of the several and Federal United States, are elected by the people; whereas in a Westminster system of government, those positions are not. They might hold similar functions but the nature of their offices are both mechanically different and different in spirit.
In a Westminster system of government, the King, the Governor-General, and the various Governors, are apolitical positions. They not only are not elected but they also do not run or administer the executive. On top of this, since 1642 when King Charles I, accompanied by armed guards, entered the House of Commons and attempted to arrest some of its members (and was unsuccessful in making any arrests at all), no king or queen has entered the House of Commons. This same convention exists throughout Westminster parliaments, where Governors and Governors-General, are still barred from entering the lower house chambers.
Hamilton would have been aware of this tradition; so he should have also been aware that the King who was not only barred from entering the lower house chambers, was also physically removed from the clatter and noise of politics. However, Hamilton who in my opinion invented this new form of government while still barely 30 years old (and as the New York Junior Delegate), was either blinkered, or myopic, or naive, or just plain dog ignorant, that the Office of The President would be occupied by anyone else other than Washington.
Indeed the idea that George Washington should become the King of the United States was not a new idea; and a letter by Colonel Lewis Nicola to Washington while he was still a General in the American Revolutionary War, proposed that the United States be a constitutional monarchy, in May of 1782. The fact that Hamilton wanted to assign king-like powers to the Office of The President seems to indicate to me that Washington occupying the position was almost a fait accompli and it is telling that in both the 1788–89 and 1792 United States presidential elections, Washington ran unopposed for the position and won with 100% of the vote on both occasions. It probably made sense for Washington who actually did float above the clatter and noise of politics to be given king-like powers but basically as soon as we get to 1796, where Adams and Jefferson ran against each other, all pretense of nobility and impartiality was burnt to the ground.
That isn't to say that the idea of a prerogative of Mercy can not exist in a republic, or even in a republic where the President is elected. The President of Ireland also does exercise certain limited powers with absolute plenary discretion, though having said that, the presidency of Ireland is mostly a ceremonial office. The presidency of the United States is absolutely not.
If we go back to asking that initial question of whether or not the power to grant reprieves and pardons, should even be held in the hands of a President, and whether or not such a power is fit for purpose in those hands, then I think that the answer is 'no'. Presidents have frequently proven to be vindictive, irrational, and on at least three occasions have been involved in criminal activity. I think that the idea that a politically appointed person has the power to grant reprieves and pardons, makes a mockery of the justice system, which they shouldn't even be a part of.
As that Fact Sheer from the NSW Dept of Communities and Justice states²:
A petitioner must demonstrate rare and exceptional circumstances in order to justify interference with the decisions of independent judicial officers who have heard and considered matters in accordance with the law.
- Royal Prerogative of Mercy: fact sheet, NSW Dept of Communities and Justice, as at 6th Jan 2024.
Even when it came to the indictment of Charles I in 1649, the Parliament knew that it didn't have the power to try and convict the King. The bill which set up the High Court of Justice, initially named judges and members of the Lords as part of the setup but following opposition in the House of Lords, the judges and members of the Lords were removed from the High Court of Justice's structure.
The point here is that if the Parliament is subject to an independent judiciary, and the King is subject to an independent judiciary, then I think that it follows that an elected president should also be subject to an independent judiciary and the power to grant reprieves and pardons in the hands of the Office of the President, violates that independence. For this reason, I think that Article II, Section 2, is unfit for purpose because although perhaps for a rare period of eight years it may have been capable of performing that function adequately, as soon as party politics flooded the office, it was also permanently incapable. It is bad law.
¹http://rollo75.blogspot.com/2015/11/horse-2024-is-government-regulation.html
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