But there is a clear path for the Courts to follow before declaring a law invalid as unconstitutional: there is a process, several instances and there are majorities to gain or the law stands. Impeachment requires majorities too, and the process is set as well. Those processes and the majorities or supermajorities required are a check and a balance. But Presidential Pardons are unchecked. The President declares: you are pardoned! And nobody can object the result. I see a big difference here. IANAL but it seems logically inconsistent to me. The Executive seems to stand above the other branches of Governement in this matter.
That was an interesting read, thank you. I won’t claim to understand it and its consequences, but it sketches in my mind some of the thinking behind the concept of pardons. It still seems contradictory to me, and wrong as an instrument for whatever it intends to achieve but as I have said before: IANAL. I guess it shows.
In other words, it’s pardons all the way down.
Yeah, I don’t think the idea of a crude sociopathic criminal becoming President ever entered the minds of the drafters of the Constitution. It might be funny if it had: “In the event that the Executive rapes and murders wantonly (as defined in Article 18, ‘Crazed and Violent Madmen elected to public office’), Congress shall convene and shall…”
Sorry for my snotty and disagreeable tone earlier in the thread, by the way.
It’s because the executive branch is led by one person
The judicial is led by nine people
The legislative by 435 + 100 people.
I am sure that if we looked at parliamentary-based governments, we could find some power the Prime Minister could yield unilaterally (even if only once) and despair that there is no check on that power. It’s the nature of the beast.
Likewise, I apologize for being overly confrontational. And you’re absolutely right that the Founders didn’t feel the need to write explicit safeguards into the pardon power or many of the other powers and authorities of the Constitution because they assumed that officeholders would be constrained by political norms of behavior. And that any politician who stepped outside those norms would face the opprobrium of the voters and the rest of the political class.
I think this is the part that’s the problem. Having someone with the power to pardon someone is a useful check on a court system that has often convicted people, or passed harsh sentences, based on things like racism. As well, the courts in the US are often reluctant to revisit a conviction, even if new evidence has come to light after the trial. Being able to fix such things is a good thing, it seems to me.
The problem is that a corrupt President apparently cannot ever be held to account for their corruption. It seems like they can just say, “I’m pardoning Mr. Murderer von Drugdealer, because, despite being found guilty on the basis of overwhelming evidence, he gave me millions of dollars”, and no one can ever punish them for that.
It’s this ridiculous idea that even former Presidents are somehow beyond prosecution that’s the problem.
The second path, ratification by special state conventions, has been used exactly once: the 21st Amendment. That amendment repealed Prohibition.
The people proposing the 21st didn’t think they could get confirmation through enough state legislatures. At the time, legislatures, especially the various state senates, were dominated by rural constituencies and Prohibition was much more popular in rural areas. So they inserted a requirement for the amendment to be ratified by conventions, which were more likely to be dominated by urban constituencies.
TIL the best way to repeal Prohibition.
Thanks!
There’s a lot of debate regarding whether Presidents can be prosecuted while in office (courts have never explicitly ruled on this), but there’s no reason that a former President couldn’t be tried for criminal conduct committed while he was in office. In fact, the Constitution explicitly states that a President removed through impeachment is still liable and subject to criminal prosecution for his impeachable actions.
Interesting fact, some states have in their laws that the state convention for ratifying constitutional amendments is
the state legislature
Personally, I just don’t understand that issue. Can a president personally murder someone on tv 5 minutes after their inaugaration, and they can’t be prosecuted for four years?
If so, the drafters of the US Constitution did in fact create a monarch, immune from the law.
I always thought the question was could he be prosecuted for official actions as President. Like if the President authorized the FBI to raid a compound in Texas and innocent people died, could you prosecute him for conspiracy to commit murder, violating victim civil rights, etc. Certainly walking up to a guy and shooting him in the face would be prosecutable.
As I understood it, the Founding Fathers™ assumed such a president would immediately be impeached and could then be judged and hanged in a swift fair trial. The problem is that impeachment does not work, at least not in the current partisan divide of the last decades. So, yes, too bad.
And a president can’t be prosecuted after his term, because it is a Witch Hunt!! And all the republican candidates support this narrative. That is sure not what the Constitution’s drafters thought would happen.
Would it? I’ve seen arguments on line (and on this board), that a state law can’t interfere with the President’s federal duties.
And as we’ve seen with Trump, quite a few people are willing to expand the class of “presidential duties” to include some pretty illegal things.
“As President, he was required to shoot that guy in the face, as he was an illegal immigrant/abortionist/obvious traitor/whatever. As the Supreme commander of the US, it was his job to decide who the threats are, and so it’s okay if he shoots somebody in the face. He declared them ‘guilty’ with his mind!”
I’ve also seen arguments online that you can say, “I do not consent to being arrested.” and the cops have to let you go or it’s kidnapping. I’d say both arguments have the same level of legal validity.
I’m wondering if those laws were passed in reaction to the 21st Amendment ratification by convention provision. Perhaps the legislatures didn’t like being bypassed in that way. I could see an argument that those laws are unConstitutional, since if Congress wanted the legislature to ratify, they wouldn’t have required ratification by convention. This won’t be an issue until another amendment is specified to be ratified by convention, so it’s not something that’ll come up soon.
Except in one case, the argument is being made by an idiot trying to avoid a parking ticket, and in the other, it’s being made by an idiot trying to avoid being persecuted for all that treason he committed while being president.
Ahem, that’s a traveler using a public roadway without contracting with The State.