« Scott Gerber on Originalism and the Declaration
Michael Ramsey
| Main | Craig Lerner: Originalism and the Common Law Infancy Defense
Michael Ramsey »


Matthew Franck on Presidential Self-Pardons
Michael Ramsey

At Public Discourse, Matthew Franck: Presidential Self-Pardons, the Framers at Philadelphia, and the Work of Originalism.  It begins:

In the recent revival of debate over whether a president can pardon himself (a matter on which I weighed in at National Review last year), two authors have relied heavily on the purported significance of a moment during the Constitutional Convention of 1787, which—they argue—disposes of the question definitively in favor of a self-pardoning power.

The post then discusses a post by Nicholas Higgins, Locke and the Founders Agree: The President Can Pardon Himself, and the Michael McConnell post discussed here earlier on this blog.  Noting that both authors rely on a single exchange at the Convention, it continues:

But Higgins and McConnell are too sure of this reading of the event [the Convention exchange], and of its significance for our own interpretation of the Constitution. 

First, there is insufficient evidence, in these few lines, to warrant the conclusion that even the only two relevant speakers—Randolph and Wilson—were thinking about presidential self-pardon, even for a second. ...

Second, the debate on Randolph’s motion ranged over more ground than this question (if it touched on it at all, which there is reason to doubt) and the whole matter probably took up (at a generous estimate) no more than half an hour of the Convention’s time, with six members talking. ...

Far more persuasive is the account of law professor Brian Kalt, who wrote extensively on this question in 1996, and who says of the debate on Randolph’s motion—accurately—that “[t]he self-pardon was nowhere mentioned.” As for what we can infer from the Randolph-Wilson exchange, Kalt says there are three possibilities: that the potential of a self-pardon was just completely overlooked; that it crossed the minds of the framers present but was dismissed as clearly unthinkable and inconsistent with the constitutional principles on which they were acting; and that it came into their minds and was accepted by them as a valid potential use of the power, for which impeachment (which could result only in a “political” punishment of removal from office and disqualification for future service) was the only remedy.  

More importantly, though:

But there is another problem with the argument of Higgins and McConnell. That is that this is simply not how originalism should be done at all. Let us suppose that theirs is the best, most persuasive reading of this brief and rather diffuse discussion of the pardon power on the last working day of the Constitutional Convention. As the late Justice Scalia was fond of pointing out, the views of individual lawmakers in the midst of debate are not themselves the law we must interpret. Neither are the votes taken in a deliberative body rightly viewed as votes on anyone’s interpretation of the text under discussion. The text that they passed, not what they said about what they passed, is the law.  

And in conclusion:

Thinking through constitutional principles, considering the logic and context and relations of various provisions and institutions to one another, is what we must undertake today as we search for the Constitution’s original meaning. This entails far more than cherry-picking a passing moment in a complex, multi-faceted debate that was just coming to a close, a moment that is itself (as we’ve seen) at best “obscure and equivocal,” and declaring victory for one side on a contested question we consider important today but that the founding generation never explicitly discussed at all. No, that’s just not how our work is done at all. 

(Thanks to Michael Perry for the pointer.)

I think I agree, but I'd feel better if the author then applied this advice to develop a conclusion on self-pardons.  As regular readers know, I feel somewhat uncomfortable talking about methodological matters in the abstract.