Federalist 74
Federalist #74 is not one of the longer essays but is one of great consequence. It deals with Article II, section 2, clause 1 of the Constitution: “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.”
Hamilton’s inclination to dispose summarily with arguments in part resulted from the lack of serious debate concerning the clauses. Most delegates at both the Constitutional Convention and the state ratifying conventions agreed that, as Hamilton put it, “a single hand” needed to direct military endeavors. You can’t divide command. Most agreed with Blackstone’s claim that “The king is considered, in the next place, as the generalissimo, or the first in military command, within the kingdom. The great end of society is to protect the weakness of individuals by the united strength of the community: and the principle use of government is to direct that united strength in the best and most effectual manner, to answer the end proposed. Monarchical government is allowed to be the fittest of any for this purpose: it follows therefore, from the very end of it's [sic] institution, that in a monarchy the military power must be trusted in the hands of the prince.” True enough, but it also reinforced fears that the president was a closet monarch.
Executive Power
Debate over the clause largely tracked disagreement over whether to have a single or plural executive, and if the former whether to have an executive council. Discussions over the structure of the executive and the nature of executive powers always intertwined: the delegates couldn’t clarify or settle on one without clarifying the other. Thus they went back and forth on Article II throughout the convention. The concentration of command in the hands of the president certainly stirred fears of a nascent monarchy, although supporters of the clause argued presidential control essential to civilian control of the military. The key phrase, Hamilton pointed out, was “when called into the actual Service of the United States,” which meant that Congress would have ultimate authority as to when troops could be employed but not, once called, over how they were employed. Congress alone had the power of the purse, the power to raise armies, and the power to declare war. The legislature also had the “calling forth” clause of Article I which expanded Congress’s military power in calling for the Militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” The Court has largely vacated the meaning of that clause, but if operative it would act as a check on the President’s use of the military — a check that has proved desperately needed. While presidential power was required when immediate dispatch demanded it, we might be well-served if Congress would reassert the Constitutional powers it does possess. Presidential command power has all-too-often operated under the cloak of the need for immediate responses when such immediacy wasn’t warranted.
Clause 2: Reprieves and Pardons
The ability of the president to grant reprieves and pardons received more debate. State governors enjoyed those powers, and it was a well-established practice of the common law. It long been held in the west that wrath and mercy were two parts of justice; God’s wrath is targeted and episodic and directed toward evil acts, but His mercy is expansive and eternal and exists independent of merit. Delegates did seek to restrict the power, however, disallowing it in cases of treason or impeachment.
The pardoning power has a direct connection to Congress’s impeachment authority because, as we have learned, impeachment often results from partisan passions. Obviously a former president can be pardoned for criminal activity, but a president cannot intervene directly in Congressional impeachments and trials. That congressional power has to play itself out; obviously a president can’t pardon anyone after they are removed from office, but as long as in office he may extend the hand of mercy and thus justice. Ford may have thought that Nixon had already suffered enough after he left office and a preemptive pardon seemed a justified act of mercy. It’s maybe the only presidential prerogative unchecked by any of the other branches of government. Only public opinion can place limits on it.
Insurrection
Hamilton makes it clear, however, that the pardon is about more than mere clemency. Ever alert to the problem of insurrection, Hamilton insisted that the pardoning power ought to be employed generously in response to insurrections. Clearly Hamilton had Shays’s Rebellion in mind. I’ve discussed this in prior essays, but I want to draw attention to the fine work done by Charles Zug in his book Demagogues in American Politics, wherein he turns on its head the standard interpretation of the event. In his telling it was not Daniel Shays who was guilty of demagoguery but those who spun the events that happened in western Massachusetts to their own political advantage – Hamilton and Adams at the top of the list.
Tellingly, this rubs against a standard historical interpretation of the Constitution whereby the convention was convened precisely to address the problem of demagoguery as it manifested itself in Shays’ Rebellion. Taking this issue head-on, Zug devotes an entire chapter to the rebellion, its effect on our constitutional system, and how it has been interpreted. We have, Zug argues, “no good reason to believe” that Daniel Shays was either an insurrectionist or demagogue. Zug begins with the assumption that Shays and his compatriots had legitimate complaints. If Shays responded to structural failures in the political and economic systems of Massachusetts, then he looks more like a reformer than a rebel. But our understanding of Shays, Zug says, is shaped by the immediate caricatures of him as presented by notable figures such as John Adams, who “had begun to work on his anti-Shays tract before it was discovered that Shays was the man to blame.” After all, it’s not as if Adams had no interest in defending the Massachusetts system as it was, and thus “slandering” Shays (Zug’s word) served Adams’ own political ends. The reaction against Shays thus amounted, says Zug, to little more than “scapegoating and demonization.” In other words, Shays’ critics were more guilty of illegitimate demagoguery than he was and used the rebellion as propaganda in their push for a new government.
Publius doesn’t make many references to Shays’ Rebellion, except for the pointed one in Federalist 74 where Hamilton observed that the “sedition” that had lately happened in Massachusetts confirmed the suspicion that Congress’s “representation of the people [was] tainted with the same spirit which had given birth to the offense” [my emphasis]. Hamilton’s subsequent defense of the pardoning power predicated itself on the likelihood that sensible people, having dealt with the same government failures, would have sympathy for the insurgents and would see punishment as salt in the wound. Given the breadth of support for Shays and his fellows, the rebellion itself became an occasion to reframe and recommit to the public good. “In this interpretation, rather than embracing the moralistic conception of demagoguery as espoused by the elites who were responsible for Shays’ erroneous reputation, the Constitution was instead designed to address the structural factors that were deemed responsible for that very insurgency,” most notably, according to Zug, in excluding “lower-class citizens…from the political process by preventing them from voting.”
Rather than prosecuting insurrectionists, the government might be well-advised to give them a pass and listen seriously to their complaints. Hamilton seemed sympathetic to this idea. Congress, as I indicated above, has the authority to “call forth” the militia to crush insurrections, but that authority is balanced by the president’s power to pardon the insurrectionists, a power for which Congress has no recourse. Hamilton discussed in 74 the idea that one or both chambers of the legislature should have to give their assent to the pardon, and he agreed “there are strong reasons to be assigned for requiring in this particular [treason] the concurrence of that body,” but, he continued, “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.” We might expect some members of Congress to share the same passions and interests as the insurrectionists, leaving justice susceptible to factional whims, especially if they tracked with the majority party.
Hamilton realized that Congress might exercise its power for the wrong reasons, or at least be blind to the legitimacy of the grievances that gave rise to the wielding of pitchforks. This would be especially a problem if Congress were staffed by people who held office for long terms without limits, thus distancing them too far from the concerns of their constituents. The presidential pardon further insured that the enforcement of the laws resided in executive hands.
Healing Wounds
Those are logistical matters: the pardoning power was still about mercy and mercy’s ability to heal divisions. Insurrections and other crimes are deep wounds in the body politic that can fester unless attended to. The pardoning power aims to heal those wounds. A presidential pardon may well calm the seas made turbulent by insurrection. As Hamilton put it:
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.
I think America could have been better served had Biden rather than Trump pardoned those convicted as a result of January 6th violence.
The exercise of the pardoning power is seldom popular, which is probably a mark in its favor. I think many of us nod toward mercy but viscerally respond to wrath. We want to see evil punished and believe that punishment rights the scales while mercy sets them once again askew. An unpunished act weighs too heavily. I recall an infuriated Bernstein’s reaction to Woodward when he heard of Ford’s pardon: “The son-of-a-bitch pardoned the other son-of-a-bitch.” Granted, the pardon can become just another way a president rewards friends and punishes enemies, but it can also be an essential tool for bringing about healing. There can be no healing without forgiveness, and forgiveness is seldom easy. Who else but the president can mediate for the political community as a whole in order to offer the cup? Only Pharisees think it should not be offered to sinners.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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