For what I think are essentially good reasons, I am dispositionally opposed both to constitutional amendments that react to contemporary controversies and to proposed reforms of the pardon power that seek to prevent abuse at the cost of its availability in cases of genuine need. But we also have a history of amendments—most clearly the 13th, 14th and 15th—that are motivated by the original ideals of the regime. Moreover, constitutional conservatism calls for prudence, not obstinacy.
In light of recent events—along with the memory of Bill Clinton’s midnight pardons—I’m coming around to Keith Whittington’s position, articulated here, that an amendment to reform the pardon power is in order. Whittington articulates several options, including restricting pardons to those who have actually been convicted and requiring the concurrence of a checking body—Congress, the Cabinet or perhaps a pardons and parole board—in grants of pardons or clemency.
These options concern me to varying degrees. As Whittington notes, all power is subject to abuse. James Madison, referring to judicial power, observed that “the abuse of a trust does not disprove its existence.” These fetters might make it harder to right injustices. As Ben Kleinerman has recently noted in this space, pre-conviction pardons can also serve an important political purpose.
And in most cases, public opinion acts as an adequate check on abuses of the pardon power. True, Trump granted clemency to Roger Stone before an election, but Trump also lost. Moreover, we should not amend the Constitution for outliers. If, going forward, the public is routinely willing to tolerate flagrantly political or venal pardons and still reelect presidents, voters need to be willing to live with the results. (There is another check on abusive pardons: impeachment. At the Virginia Ratifying Convention, that was the remedy Madison cited.)
But the calculus of lame-duck pardons is different. Public opinion no longer operates as a check, and the costs of impeachment are reduced. Still, presidents might be particularly free to correct genuine injustices in a lame-duck period—say, by granting clemency to prisoners serving draconian sentences under mandatory minimums. A middle ground might be imposing the checks Whittington surveys in other contexts—legislative or Cabinet concurrence, for instance—during the lame-duck period.
The pardon power exists for a reason. Hamilton articulated it in Federalist 74:
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 favour of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.
That is not the purpose for which lame-duck pardons are generally issued. An amendment would therefore be restorative, not transformational.