The U.S. Constitution, in Article II, Section 3, gives the president of the United States the pardoning power. The text reads, “he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” On Sunday, President Joe Biden exercised this power in pardoning his son, Hunter. Hunter Biden had been convicted on gun-related felony charges as well as pleading guilty to tax evasion. President Biden’s pardon applied to all of these legal matters, effectively wiping out any punishment for them.
Besides assessing the legitimacy of this particular action, one might ask why America’s constitution includes a power to pardon at all. In the preamble, the constitution lists among its intended purposes the goal “to… establish Justice.” James Madison wrote in Federalist 51 that, “Justice is the end of government. It is the end of civil society.” Government is ordered according to the pursuit of the right, of the good. By the standard of justice, the state seeks to punish the wicked, protect the innocent, and encourage virtue. Yet pardons by definition do the opposite. They remove punishment for the guilty. In so doing, they could be accused of leaving the innocent vulnerable to violence and to teach to citizens the social benefits of vice, not good. In short, governments, in granting pardons, seem to violate their essential end.
This problem compounds when considering who pardons. The constitution vests the president with the national government’s executive power. This particular political power, in its essence, consists of enforcing existing laws. Article II reinforces the centrality of the president’s enforcement task when it lists among his jobs that, “he shall take Care that the Laws be faithfully executed.” However, presidential pardoning seems in flat contradiction to the faithful exercise of executive power. Rather than enforce existing law, pardons override that law and the judicial process that determined guilt according to it. Thus, the executive appears to negate rather than cooperate with the other powers and branches in government, namely both the legislative command of Congress and the judicial declaration of the courts.
Despite these reasonable objections, the constitution includes the pardoning power. Moreover, a pardoning power has been a normal facet of many, if not most, governments in human history. Americans were not special in this regard.
What justification exists, then, for the pardoning power? We can pinpoint three reasons pardoning not only has but should be included among a government’s powers.
First, the pardoning power permits the government to address an inherent weakness in a humanly-exercised legislative power. Laws create general classifications of permitted and prohibited actions. These classifications tend to focus on regularly occurring situations from which the need for the law originally arose. However, in their generality, laws do not perfectly fit every situation to which they get applied. Circumstances arise not perceived by the legislators. In particular, one might find mitigating factors special to a case. A person steals but does so due to extreme hunger. A person might kill but have had a history of being victimized by the victim. To give these persons the law’s punishment in its full vigor seems to follow the humanly-defined letter of justice while violating its more fundamental spirit. Strict enforcement then seems to not fulfill government’s purpose in establishing justice in its fullest sense.
Again, the law cannot account for every one of these circumstances. Nor should legislators even try to account for them all. They should not do so because, at some point, a growing list of exceptions to laws undermine essential purposes in ruling by law. Laws in their generality seek to treat persons with some degree of equality. In particular, good laws push governments to reward or punish persons more according to their actions, not according to their relationship to certain officials or their perception by society. In this vein, governments more easily can abuse the law when it is complicated, claiming to follow it while doling out special favors helped by so many caveats to the rules. Moreover, citizens lose the ability to adequately know the law, therefore lessening their capacity to claim its protections or to avoid its prohibitions.
In summary, what we have is the situation Aristotle pinpointed in the debate between whether it should be men or the law that rules. The rule of men can be arbitrary, partisan, and partake of the ignorance of whoever holds power at a particular moment. The law can run roughshod over special situations, thereby hurting particular persons rather than giving them their right. While Aristotle seems ultimately to come down on the side of law, he does not deny that rule by law has its problems.
The pardoning power seeks to address this tension. It maintains that the enforcement of the laws will be the norm. It thereby respects, generally speaking, the rule of law. But a pardoning power permits the government to address the exceptional circumstances when they do arise. It exists here as a kind of equity power, a means to correct problems with strict law enforcement. Doing so might still miss perfect justice but it will err more on the side of leniency in special cases, thus limiting accusations that the law itself is too harsh.
We can find this reasoning within the Magisterial Protestant tradition. James Ussher (1581-1656), Archbishop of Armagh and Primate of Ireland, argued that magistrates should not be subject to even their own laws. Ussher supported the idea that kings, “have power to judge according to their conscience, and not according to the letter of the law.” His reasoning in part had to do with an absolutist view of political power. But he also argued that such authority made for better rule, since “no decree of the law, although weighed with never so considerate counsel, can sufficiently answer the varieties and unthought on plottings of man’s nature.”[1]
Second, the pardoning power addresses weaknesses in the government’s ability to enforce its will perfectly. God is omnipotent. This attribute holds important ramifications for His rule as king over all the earth. As the Psalmist says, “Our God is in the heavens; he does all that he pleases” (Ps. 115:3) No opposition to His rule can or will stand.
We cannot say the same for human governments operated by human rulers. They fall short of their goals all the time. Laws do not get enforced fully with some guilty going free and some innocent getting harmed. Outright opposition to governments in the form of rebellions and insurrections can manifest the limitations on a state’s power in magnified form. We see in Syria right now and in civil wars throughout history that opposition to a regime can be terribly hard to suppress and might even triumph over the present political order.
In those instances, what should a government do? Federalist 74, the main paper to discuss the U.S. constitution’s pardoning power, says that a well-timed pardon might be useful to address the limitations on government’s enforcement power. Under law, rebels should be forcefully and thoroughly punished. However, doing so might not be possible or might exact a tremendous cost in life and resources. What if the offer of a pardon to certain offenders might cut a rebellion’s legs from under it, causing those with the offer of a pardon to cut their losses and step back from revolution while leaving the ringleaders exposed? Though that situation might not result in strict justice according to law, it might be the best option given the circumstances given how much destruction it avoids. Moreover, such a pardon might be the means to repairing the breach and moving forward after the opposition has ended. This matter confronted the American government in the aftermath of its Civil War, as the claims for exacting punishment against the rebelling South went up against calls for leniency in order to reunite the country, not just legally, but socially.
Third and finally, the pardoning power gives some place for the exercise of mercy in politics. Recall that so many theories of government ground the state’s purpose in pursuing justice. Mercy is not justice, at least not in any strict sense. In a political system committed to justice, what place could mercy have that holds any legitimacy?
We see William Shakespeare take on this question in The Merchant of Venice. His Venice is held together by a combination of commerce and adherence to written law. Deeper social bonds of religion, morality, or other political glues appear mostly absent. In that context, Portia, dressed in disguise as a lawyer, makes an appeal to a Venice court, including the accuser, for the place of mercy in politics.
Portia makes her case by establishing God’s rule as the standard for human magistrates. How does God rule over human beings? She notes that mercy, “is an attribute to God Himself.” Thus, God does not rule over us according to strict justice. We know this because, otherwise, “in the course of justice none of us/Should see salvation.” As this scene takes place in a courtroom, so Portia points her hearers to the ultimate courtroom where divine judgment will be dispensed. For any sinful human beings to escape eternal punishment requires that God lavish mercy on the undeserving.
Therefore, Portia claims that, “earthly power doth then show likest God’s/When mercy seasons justice.” Rulers follow God’s rule the most when mercy is a part of their own exercise of rule. To imitate the ultimate king, earthly kings must exhibit this divine attribute. Here, Portia acknowledges that God does not ignore justice entirely. In fact, justice is the baseline for God’s own rule. Mercy instead “seasons”—that is, modifies or refines—justice. Here we see addressed a question that political systems with only justice and no mercy will struggle to handle. What does a society do after evil has been committed? It can and often should punish. But does any place remain for redemption and restoration? Or are all the guilty forever cut off from the political community? In a society composed of sinful people, this question will eventually, if not immediately, become both practical and urgent. A society with no mechanism for redemption and restoration constantly risks forever severing itself into pieces. Thus, the pardoning power permits some space for reconciliation and therefore the maintenance of a fallen political community itself.
Along these lines, Portia argues that the good reaped in political mercy extends beyond the one who receives it. Mercy “is twice blest:/It blesseth him that gives and him that takes.” How might a government benefit from giving mercy? Perhaps in getting closer to justice in particular instances or addressing limitations on the state’s political power, as earlier discussed. But the good for the community also seems to be in its capacity for making whole again what was severed and thereby recognizing the importance of community for fallible human beings.
Perhaps most importantly, the pardoning power as an act of mercy points us toward the cross. We must add explicitly that to which Portia merely alluded. For it is at Calvary that justice and mercy kiss (Ps. 85:10). It is there that the ruler of the universe upholds right and gives grace to undeserving rebels.
We should see in the pardoning power a faint imitation of the Gospel. America’s Supreme Court has spoken in these ways when discussing the power. In one important pardoning power case, Ex Parte Garland (1866), the Court spoke of the pardoning power in terms that closely approximated salvific language. For one, “A pardon reaches both the punishment prescribed for the offence and the guilt of the offender, and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offence.” Here we see the language of atonement, one found throughout the Bible. As said in Isaiah 1:18, “though your sins are like scarlet, they shall be as white as snow.” Moreover, as Psalm 103:12 declares, “as far as the east is from the west, so far does he remove our transgressions from us.” In addition, this Court opinion said that a pardon, in regards to the offender, “it makes him, as it were, a new man, and gives him a new credit and capacity.” We hear from St. Paul, in 2 Corinthians 5:17, “Therefore, if anyone is in Christ, he is a new creation. The old has passed away; behold, the new has come.”
We should not equate the pardoning power to salvation in Christ. But we should see the influence the conditions of our eternal salvation has on how we view our politics. And we should understand how the pardoning power, rightly used, can give us a picture of our ultimate redemption in Christ.
Those are defenses for America and all governments possessing a pardoning power. Sadly, in the instance of Hunter Biden, we see an ugly distortion of it. No, President Biden did not violate any specified limitation on his power to grant pardons. Only one such limitation is listed—cases of impeachment. But his pardon did not further the intended goals of this authority. It did not address problems in existing laws. It did not stem from pursuit of the common good in the face of rebellious opposition. Perhaps it could be seen as an act of mercy, or the desperate move of a man in his final years who has lost two children already, or a thumbing of the nose at Democrat colleagues who have betrayed him during this election year. But it seems hard to view it as anything other than the abuse of public power to grant special, personal favors, not the costly sacrifice by a political community to find redemption and restoration.
We would do well to reject how President Biden wielded this power. And we would do better to use this moment of discussion about it to fix our eyes on God’s mercy, His pardon to us through His Son. Mercy should season justice in our politics. Let us seek how to do so rightly in the future.
Adam Carrington holds the Bob and Jan Archer Position in American History & Politics at Ashland University where he also serves as Co-Director and Chaplain in the Ashbrook Center. He teaches and writes on American political institutions and political theology.
Here, Ussher quotes at length a word of Aeneas Silvius, also known as Pope Pius ↑
*Image Credit: Wikimedia Commons
