Strengthening Constitutional Self-Government

No Left Turns

Justice, mercy, and the rule of law

I don’t want to deal with the general hysteria of this post by a distinguished legal academic suffering from a severe case of BDS, but I do want to raise a question to be discussed by the distinguished commentariat here at NLT.

Sanford Levinson says this:

No one should doubt that we are in a constitutional crisis. And part of the crisis can be found within the Constitution itself. Perhaps it is a good idea that the President can pardon (or commute) convicted criminals. This is the notion that justice should be tempered by mercy.

I had always thought (and said as much here) that the prerogative in the case of pardons and reprieves has at least as much, if not more, to do with justice as with mercy. Stated another way, we all ought to recognize that the rule of law is at best an approximation of the rule of justice. To the extent that the rule of law falls short, to the extent that general principles can’t adequately account for individual cases, we have recognized that, in particular instances, the executive has discretion to rectify (and I use the word advisedly) injustices brought about by the merely mechanical application of the rule of law.

Am I right about this? If I am, the debate is over what the just penalty ought to be in Scooter Libby’s instance, not whether GWB has been sufficiently clement in other cases. And, once again, if I am right, then we can properly take into account comparable cases (e.g., Clinton, Berger) as we debate about whether Scooter Libby has "suffered enough."

Discussions - 3 Comments

Joe, I think you are right about this. I have always read the pardon power in light of the tradition of political philosophy, beginning in this instance with Aristotle's great treatise at the end of Book III of the Politics on the advantages and disadvantages of the rule of law vs. a single man.

Oh brother...sophistry, anyone?

In other words, commutation of a sentence: It's Ok If Republicans Do It.

Get in touch, Lucas.

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