When the United States wrote its first constitution, the Articles of the Confederation, the goal was to spread power around to avoid replicating the British monarchy. But in 1787, the Constitutional Convention decided to take things in a different direction and give more power to the federal government and the president.
One of the sections of this new U.S. Constitution gave the president a power similar to the British King’s “royal prerogative of mercy.” In the U.S., this is known as a presidential pardon. Article II section 2 of the Constitution describes it as the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
Federalists like Alexander Hamilton, who wanted the Constitution to set up a strong national government, supported the addition of this executive power. In the Federalist Papers—an anonymous series of letters that Hamilton and others wrote to newspapers—Hamilton argued that without a way to pardon people, “justice would wear a countenance too sanguinary and cruel.”
But the “principal argument” for the power, he wrote, was that if the U.S. ever experienced an insurrection or rebellion, “a welltimed [sic] offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.” George Washington used the power in this way when he pardoned two members of the Whiskey Rebellion, and so did Abraham Lincoln when he pardoned all but the highest-level Confederate officers after the Civil War.
The Anti-Federalists, though, feared that giving the president the sole power to pardon would result in tyranny. In the lesser-known Anti-Federalist Papers, future Vice President George Clinton warned that it would create “a vile and arbitrary aristocracy or monarchy,” according to The New York Times.
“There was a proposal to require Senate approval for [presidential] pardons, but it was rejected” by the Constitutional Convention, says Caroline Mala Corbin, a professor at the University of Miami School of Law. So too was a proposal to give this power to the Senate instead of the president.
She speculates these measures failed because the Constitutional framers “were worried about making the legislature too powerful,” and that “requiring that the Senate convene and debate and vote” would make it more difficult to quickly restore peace after an insurrection.
In the end, the winning argument was the Federalist position that executive pardons were necessary to correct miscarriages of justice. As federalist and future Supreme Court justice James Iredell wrote at the time, it was considered one of the “advantages of the British constitution” that could be adopted by the U.S. “with proper republican checks.”
And technically, there are checks.
“Congress can still check [the president] by impeachment,” explains Corbin. “The federal courts can still check him by declaring his pardon unconstitutional if, for example, he attaches conditions on it. And of course we the people can still check the president by voting him out of office or protesting.”
As an illustration, Corbin points to the fact that President Gerald Ford lost the 1976 election to Jimmy Carter after his controversial decision to pardon former President Richard Nixon. However, these checks are not as direct as some would like.
Pardoning “is one of those powers that the president doesn’t share, so there’s concern about presidential abuse of this power,” she says. “And I think that’s a valid concern … any power that resides with the president alone is open to abuse.”