07/09/2007 09:00 pm ET Updated May 25, 2011

Pardon Clause: A Bit of Monarchy in Our Great Democracy

"I now propose that in twelve important areas of our national life ... the executive should surrender or limit their powers, the exclusive exercise of which by the government of the day should have no place in a modern democracy."

These words are those of the British Prime Minister Gordon Brown during his first address to the House of Commons last week. He explained that he deemed the surrender of power from the executive to the House of Commons in twelve areas a necessity in order to build a new relationship between the British people and their government and make the latter "a better servant of the people." The last point on this list consisted of only five words: "power to granting of pardons."

I believe it is vital for the United States to amend the Pardon Clause of the United States Constitution by subjecting that power to a majority vote in the people's Congress.
The Pardon Clause of the U.S. Constitution states that the president "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." This power was exercised by monarchs in Europe, so it is least surprising that our Founding Fathers sought to invest this power in the unilateral hands of one individual. Alexander Hamilton explained the reason why the Founding Fathers gave the president this discretionary power in the Federalist No. 74 in 1788. Hamilton explains that "[t]he principle argument for reposing the power of pardoning ... [in] the chief Magistrate is this: in season of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall."

The Founding Fathers believed that there would be times when a president can help heal a nation from the wounds of a public battle by granting a pardon. One of the geniuses of our democracy for the past two hundred and thirty-one years has been the ability of the American people to reassess our constitution and make appropriate amendments to it based on the facts in the light of the day. Each one of the twenty-seven amendments to our constitution has made our country a better place because it has contributed to keeping the Constitution alive and its principles timely and evolving with the needs of our ever-changing society.

One of the things we have learned throughout this many years is that although our Founding Fathers sought the power to pardon to be used rarely and only in cases that have jeopardized the tranquility of our country, most of our presidents have used the clause not for the good of the nation but out of loyalty to those who share their political ideologies or for the benefit of their own wellbeing and legacies. While this has been occurring, the courts have taken a deferential role and kept check of this power to a minimum. I believe President Ford did not have the constitutional power to pardon Nixon because it was "a case of impeachment," a sole exception to this power as stated in the clause. In other cases, presidents have pardoned individuals not because the tranquility of the nation was at stake, but because their own legacy and freedom were. George H. W. Bush granted pardons to six executive branch officials, including former Secretary of Defense Caspar Weinberger, who were facing criminal charges for illegal dealings with Iran, which occurred while George H. W. Bush was the vice president of the United States. Republicans have not held a monopoly on unrestricted grant of pardons. President Clinton's eleventh hour pardons of 140 individuals, including the fugitive financier, Marc Rich, and Former Housing Secretary, Henry Cisneros, were equally disconcerting.

And then, there is the case of Scooter Libby. It can hardly be argued that the tranquility of the nation was at stake ten days ago when Scooter Libby was set to serve his thirty-month sentence in prison after he was found guilty of perjury and obstruction of justice. At the time, the only Scooter-related discussions on major news channels were speculations as to whether President Bush would pardon him. He could have put the case to rest once and for all by ruling out pardon or commutation. But instead, he chose to commute Mr. Libby's sentence because he deemed it "too harsh."

Let's review this in perspective. This is a president whose approval ratings cannot get any lower because of countless failures in foreign and domestic policies that have stemmed from his absolute incompetence and that of his administration. But most relevantly, this has been an administration that considers itself above the law. They have stripped detainees in Guantanamo Bay of their right to challenge their detentions without a charge, broken the Federal Intelligence Surveillance Act by wiretapping millions of American citizens without getting the necessary permissions from the speedy and secret FISA courts, established secret prisons in Uzbekistan and justified torture of prisoners. Nonetheless, our Constitution still allows this president -- who has nothing to lose, his legacy to save and possible criminal charges to avoid -- to grant a unilateral pardon to someone who may have played a key role in this administration's commitment of treason by blowing the cover of Valerie Plame, a CIA operative.

It is true that it may be more speedy and convenient for the president to pardon without the people's consent. But in light of the abuse of this clause over the past century, if the pardons are for the sake of the nation's harmony, shall the people's representatives in Congress not approve the pardon with a simple majority vote? Would it not be fair to ask the representatives if the people choose tranquility or justice in each case? My belief in the fact that the pardon clause is an elitist and monarchical power that has often been used to place certain individuals above the law, and that it has often contributed to establishing two classes of law for two classes of citizens, lead me to answer "yes" to both questions.